SHAWN Q. WHIPPLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the notice of appeal was timely filed, vesting jurisdiction in the court.
Appellant filed a notice of appeal more than 30 days after the order on post-conviction relief was served. Appellant then filed a motion for rehearing…
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PER CURIAM.
On September 11, 2003, the appellant filed a notice of appeal seeking review of an Order on “Motion for Post Conviction Relief,” which had been entered and served on the appellant by mail on June 3, 2003. Because this notice was not filed within 30 days of the order on appeal, we issued an order to show cause why this appeal should not be dismissed as untimely. The appellant filed a response along with a copy of his motion for rehearing, filed on June 23, 2003, which was denied on August 25, 2003.
Having considered the appellant’s response, the show cause order is hereby discharged. See Fla. R.App. P. 9.020(h). A motion for rehearing directed at an order on a 3.850 motion for post-conviction relief must be filed within 15 days of the date of service of the order. See Fla. R.Crim. P. 3.850(g). However, when the order is served by mail, Rule 3.070 provides that three days shall be added to this time period. See King v. State, 504 So. 2d 405 (Fla. 1st DCA 1987). In this case, the appellant had 18 days from the June 3, 2003 service date to file a motion for rehearing. The end of this period fell on Saturday, June 21, 2003. Therefore, the appellant had until Monday, June 23, 2003 to file his motion for rehearing. See Fla. R.Crim. P. 3.040. As the motion was filed on June 23, 2003, it was timely and delayed rendition of the order on appeal until the motion was disposed of on August 25, 2003. Thus, the notice of appeal filed on September 11, 2003, was also timely and effective to vest jurisdiction in this Court.
On December 15, 2003, the appellant filed a Petition for Writ of Habeas Corpus for a Belated Appeal. However, because this appeal was timely filed, the petition for belated appeal is denied as moot. Accordingly, this appeal shall proceed from the Order on “Motion for Post Conviction Relief,” filed on June 3, 2003.
ALLEN, DAVIS and HAWKES, JJ., concur.
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Rubin E. Palm v. State, 982 So. 2d 1226 (Fla. 1st DCA 2008)…y 10, 2006, appealing the order on the appellant’s postconviction motion, rendered and served on March 9, 2006, was untimely. Appellant’s motion for rehearing filed on March 30, 2006 was also untimely. See Fla. R.Crim. P. 3.853(e); Whipple v. State, 867 So. 2d 433 (Fla. 1st DCA 2004). Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). DI…
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Watkins v. State, 217 So. 3d 1135 (Fla. 3d DCA 2017)…of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.” Id. “However, when the order is served by mail, Rule 3.070 provides that three days shall be added to this time period.” Whipple v. State, 867 So. 2d 433 (Fla. 1st DCA 2004); see also Parks v. State, 126 So. 3d 352 (Fla. 3d DCA 2013).4 Watkins filed his motion for rehearing on October 25, 2016. In support of the argument that his motion for rehearing was timely, Watkins points to the two stamp marks…
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Floyd v. State, 893 So. 2d 588 (Fla. 1st DCA 2004)…ng that he intended to file a motion for rehearing. Rule 3.850(g) provides that a motion for rehearing must be filed within 15 days of rendition of the order or within 18 days if the order was served by mail. Fla. R.Crim. P. 3.070; Whipple v. State, 867 So. 2d 433 (Fla. 1st DCA 2004). Because neither the letter nor the subsequently filed motion for rehearing was timely, the time for filing the notice of appeal was not tolled. Childs v. State, 649 So. 2d 349 (Fla. 1st DCA 1995) (holding that an untimely motion…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- King v. State, 504 So. 2d 405 (Fla. 1st DCA 1986)
- King v. State, 504 So. 2d 405 (Fla. 1st DCA 1987)