KENYA L. PROCTOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Proctor appealed the denial of his Rule 3.850(a) motion challenging 1995 convictions, but the Florida District Court of Appeal dismissed the appeal for lack of jurisdiction because he failed to timely file his notice of appeal within 30 days of the trial court's order.
The court dismissed the appeal for lack of jurisdiction because Proctor failed to file his notice of appeal within 30 days of the January 7, 2003 order and failed to establish timely delivery to prison authorities under the mail box rule. However, the dismissal is without prejudice to allow Proctor to file a petition for belated appeal under Rule 9.141.
[1] A notice of appeal must be filed within 30 days of the rendition of the order sought to be appealed.
[2] Failure to file a timely notice of appeal generally deprives an appellate court of jurisdiction.
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Join FLexlaw to unlock all legal intelligence“Under the Florida Appellate Rules, Proctor should have filed his notice of appeal no later than 30 days after the rendition date. Fla. R.App. P. 9.140(b)(1)(D) & (3). Failure to do so deprives this court of jurisdiction to hear the appeal.”
Establishes the strict 30-day filing requirement and the jurisdictional consequence of failing to meet it.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an order denying Proctor's Rule 3.850(a) motion on January 7, 2003. Proctor claims he did not receive a copy of the order until…
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Proctor seeks to appeal from an order denying his motion filed pursuant to Rule 3.850(a) challenging his 1995 criminal convictions. However, it appears untimely. In response to this court’s show cause order as to why this appeal should not be dismissed, Proctor alleges he did not receive a copy of the trial court’s order until February 5, 2003, or March 24, 2003.
The order sought to be appealed in this case was rendered on January 7, 2003. Under the Florida Appellate Rules, Proctor should have filed his notice of appeal no later than 30 days after the rendition date. Fla. R.App. P. 9.140(b)(1)(D) & (3). Failure to do so deprives this court of jurisdiction to hear the appeal.
Pursuant to the “mail box” rule1 this time period can be “extended” for an inmate in the state prison system by establishing that he or she delivered the notice of appeal to prison authorities for purposes of mailing, prior to the expiration date for filing the notice of appeal. The date of delivery is deemed the date of fifing or service under the mail box rule.
In this case, Proctor failed to assert or establish he timely delivered the notice of appeal to the prison authorities. Thus, we must dismiss this appeal for lack of jurisdiction.
However, this dismissal is without prejudice to file a petition in this court seeking a belated appeal pursuant to all the requirements of Rule 9.141. The allegations must be made under oath, and must establish a basis for granting a belated appeal. Such circumstances may include the fact that, due to no fault on the part of the prison inmate, the inmate did not receive a copy or notice of the order sought to be appealed until a time past the last day to timely file a notice of appeal, via the mail box rule, or so close thereto, that fifing a timely notice was difficult, and that, as a practical matter, the notice was filed as quickly as possible, after receipt or notice of the order, under the circumstances.
DISMISS without prejudice to file petition for belated appeal.
PETERSON and ORFINGER, JJ., concur. . Fla. R.App. P. 9.420(a)(2); Griffin v. Sistuenck, 816 So. 2d 600 (Fla.2002); Thompson v. State, 761 So. 2d 324 (Fla.2000); Haag v. State, 591 So. 2d 614 (Fla.1992).
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Citator
Cited By (28 total)
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Quinnell v. State, 946 So. 2d 579 (Fla. 1st DCA 2006)…PER CURIAM. Because the notice of appeal was not timely filed, this appeal is dismissed for lack of jurisdiction. This dismissal is without prejudice to appellant’s right to file a petition for belated appeal. See Proctor v. State, 845 So. 2d 1007 (Fla. 5th DCA 2003). BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.…
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Despart v. State, 871 So. 2d 312 (Fla. 5th DCA 2004)…denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. Because his appeal is untimely, we dismiss without prejudice to Despart to file a petition for a belated appeal. See Proctor v. State, 845 So. 2d 1007 (Fla. 5th DCA 2003). DISMISSED. PETERSON and ORFINGER, JJ., concur.…
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Harris v. State, 911 So. 2d 221 (Fla. 2d DCA 2005)…Appellate Procedure, 685 So. 2d 773 (Fla.1996). It has been suggested that a belated appeal of an order under rule 3.800(a) might be authorized pursuant to rule 9.141(c)(4). See Despart v. State, 871 So. 2d 312 (Fla. 5th DCA 2004); Proctor v. State, 845 So. 2d 1007 (Fla. 5th DCA 2003). We have found no opinion, however, permitting such a belated appeal when the defendant merely alleges that the order did not contain language notifying him of the time limits for appeal. It would be tempting to latch onto this…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Griffin v. D.R. Sistuenck, 816 So. 2d 600 (Fla. 2002)