JAMES ASHLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Ashley, an inmate, appealed the denial of his motion to correct an illegal sentence, but filed his notice of appeal 21 days late. The court dismissed the appeal for lack of jurisdiction, holding that the "mail box rule" does not permit time deadlines to run from when a prisoner receives a court order, and there is no "reverse mail box rule" allowing extensions based on delayed receipt.
The court held that the "mail box rule" under Florida Rule of Appellate Procedure 9.420(a)(2) allows inmate filings to be timely if placed with prison officials by the deadline, but does not permit deadlines to run from the date of receipt by the inmate. No "reverse mail box rule" exists that would extend deadlines based on late receipt. The appeal was dismissed for lack of jurisdiction without prejudice to seek a belated appeal through other remedies.
[1] A pro se inmate's document is timely filed if the inmate places it in the hands of an institution official for mailing on or before the last day for filing.
[2] The "mailbox rule" for pro se inmates requires the document to be placed in the hands of prison officials for mailing on or before the filing deadline.
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Join FLexlaw to unlock all legal intelligence“A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing.”
Establishes the scope of the "mail box rule" under Florida Rule of Appellate Procedure 9.420(a)(2), which runs from the date of placement with prison officials, not receipt by the inmate.
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Join FLexlaw to unlock all legal intelligenceAshley filed a notice of appeal from a trial court order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Proced…
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Ashley filed a notice of appeal from the trial court’s summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a); however, the notice was untimely. The rendition date of the order was January 3, 2003. The notice of appeal was served on the state on February 10, 2003 and a copy was provided to prison officials for purposes of mailing on February 9, 2003. The notice was actually filed in the lower court on February 24, 2003. In order to be within the thirty day time limit, the notice of appeal should have been filed on or before February 3, 2003. See Fla. R.App. P. 9.110(b).
Accordingly, this court ordered Ashley to show cause why his appeal should not be dismissed for lack of jurisdiction. Ashley responded that he did not receive a copy of the denial of his motion until January 27, 2003, and thus under the “mail box rule,” he had thirty days from the date of its receipt in which to file his appeal.
This is not a “mail box” rule situation. The Florida Supreme Court formalized the “mail box” rule when it adopted Florida Rule of Appellate Procedure 9.420(a)(2).
A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date, (emphasis added)
Applying that rule to this case, when Ashley delivered his notice of appeal to the prison officials on February 9, 2003, he was past the thirty-day deadline.
What Ashley is seeking in this case is a kind of “reverse mail box” rule which would make time deadlines for inmates run from the time a document is delivered to the prisoner by the prison officials. In his response, Ashley says he did not receive a copy of the trial court’s order denying his motion until January 27, 2003, and thus his filing of the notice of appeal was timely. However, at this time, there is no such rule.
In civil cases in which a party does not receive a copy of an order or judgment from the court until after the time for filing an appeal has expired, relief has been granted by allowing the party to file a motion to set aside the judgment or order because of clerical error.1 The lower court corrects or quashes the first order and renders another, thus allowing the thirty day time period to start running again.
This procedure might be appropriate in some criminal cases where the prisoner is not at fault. For instance if an appealable order or judgment was not delivered to the inmate by the prison officials until after the thirty day time period had expired or it was otherwise practically impossible to make a timely filing. Relief might also be appropriate by filing a petition for habeas corpus to seek a belated appeal pursuant to Rule 9.141. See Johnson v. State, 813 So. 2d 230 (Fla. 1st DCA 2002); Green v. State, 804 So. 2d 474 (Fla. 5th DCA 2002); Crocton v. State, 743 So. 2d 1188 (Fla. 5th DCA 1999); Richardson v. State, 624 So. 2d 804 (Fla. 1st DCA 1993).
Based on this record we have no recourse but to dismiss Ashley’s appeal for lack of jurisdiction without prejudice to seek a belated appeal.
DISMISSED.
SAWAYA and PLEUS, JJ., concur. . See Fla. R. Civ. P. 1.540(b); Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980).
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Rohn v. State, 920 So. 2d 1216 (Fla. 5th DCA 2006)…ilbox rule, which does not exist. However, relief may be appropriate in some circumstances. Thus, in my view, the proper course for this court to take is to dismiss this appeal without prejudice to Rohn to seek a belated appeal. See Ashley v. State, 845 So. 2d 1008 (Fla. 5th DCA 2003). . See Pagan v. State, 899 So. 2d 1203 (Fla. 2d DCA 2005) (explaining that under the mailbox rule a pro se inmate’s document is deemed filed when the inmate entrusts the document to prison officials for delivery).…
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Martini v. Young, 921 So. 2d 647 (Fla. 5th DCA 2005)…of Smith’s failure to circulate the order. See, e.g., Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla.1979)(trial counsel’s failure to mail correct copy of appealable order constituted clerical mistake within Rule 1.540(a)); Ashley v. State, 845 So. 2d 1008, 1009 n. 1 (Fla. 5th DCA 2003); Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980); Smith v. Garst, 289 So. 2d 774 (Fla. 2d DCA 1974). The February 21, 2003 “final” order was thus a final order authorized by rule 1.540(a). See Pennington III v. W…
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Archie v. State, 247 So. 3d 648 (Fla. 1st DCA 2018)…PER CURIAM. DISMISSED. See Henley v. State, 171 So. 3d 133 (Fla. 1st DCA 2015) (noting that time to appeal runs from date order is rendered by filing with the clerk of the court); see also Ashley v. State, 845 So. 2d 1008 (Fla. 5th DCA 2003) (time to appeal runs from date order is rendered, not date order is received by inmate appellant). WETHERELL, ROWE, and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authoriz…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- Town OF Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)
- Richardson v. State, 624 So. 2d 804 (Fla. 1st DCA 1993)
- Green v. State, 804 So. 2d 474 (Fla. 5th DCA 2001)
- Crocton v. State, 743 So. 2d 1188 (Fla. 5th DCA 1999)
- Fredrick Johnson v. State, 813 So. 2d 230 (Fla. 1st DCA 2002)