CALVIN MORGAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Calvin Morgan sought a belated appeal of a revised order denying his post-conviction relief motion. The court held that his petition was actually timely under Florida rules because the time to appeal began only when the order was filed with the clerk, not when it was served, and he filed within thirty days of the filing date.
Morgan's petition for belated appeal was timely because the time to appeal begins from the date the order is filed with the clerk, not the date of service or receipt. Since the revised order was filed on May 19, 2003, and Morgan's petition was filed on June 8, 2003, it was filed within thirty days of the rendition date.
[1] The time to appeal an order begins to run from the date the signed, written order is filed with the clerk of the lower tribunal.
[2] A petition for belated appeal is unnecessary when the appeal is filed within thirty days of the rendition date of the order to be reviewed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Morgan has no need of a belated appeal because the time to appeal did not begin to run until the order was rendered, i.e., when the signed, written order was filed with the clerk of the lower tribunal.”
Establishes that the critical date for calculating the appeal deadline is when the order is filed with the clerk, not when served or received.
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Join FLexlaw to unlock all legal intelligenceMorgan had previously appealed a trial court's denial of his Rule 3.850 post-conviction relief motion. The appellate court reversed in part and remand…
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GRIFFIN, J.
Calvin Morgan seeks a belated appeal, alleging that state action frustrated his right to a timely appeal. He had earlier appealed the trial court’s denial of his 3.850 motion for post-conviction relief.
We reversed in part and remanded the case for further consideration of a sentencing issue. See Morgan v. State, 840 So. 2d 1151 (Fla. 5th DCA 2003).
The trial court entered a “revised order denying defendant’s motion for post-conviction relief.” This revised order was signed and dated by the circuit judge on April 22, 2003.
However, the certificate of service indicated that the order was not served until May 16, 2003. Morgan asserts that he did not receive his copy of the revised order until May 27, 2003.
On June 8, 2003, petitioner submitted his petition for belated appeal of the revised order. Morgan has no need of a belated appeal because the time to appeal did not begin to run until the order was rendered, i.e., when the signed, written order was filed with the clerk of the lower tribunal. See Fla. R.App. P. 9.020(h). As Morgan notes, the revised order was not filed with the clerk of the lower tribunal until May 19, 2003. His petition for belated appeal, which was “filed” here under the mailbox rule on June 8, 2003, was timely filed within thirty days of the rendition date of the order to be reviewed.
Accordingly, we treat the petition as a timely notice of appeal filed in the wrong court and transfer it to the circuit court. See Fla. R.App. P. 9.040(b)(1); Alfonso v. Dep’t of Envtl. Reg ulation, 616 So. 2d 44 (Fla.1993); Jackson v. State, 834 So. 2d 305 (Fla. 1st DCA 2002).
PETITION MODIFIED and TRANSFERRED.
SHARP, W., and THOMPSON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cayetano E. Alfonso v. Dep't OF Env't Reg., 616 So. 2d 44 (Fla. 1993)
- Jerravonnie L. Jackson v. State, 834 So. 2d 305 (Fla. 1st DCA 2002)
- Morgan v. State, 840 So. 2d 1151 (Fla. 5th DCA 2003)