STEPHEN COTTERELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appeal must be dismissed because the notice of appeal was untimely filed.
Cotterell appealed the denial of his motion to correct an illegal sentence. His notice of appeal was filed five days late under the mailbox rule.…
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Cotterell appeals from the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The order denying his motion was rendered August 24, 2004 and Cotterell’s notice of appeal, which was delivered to prison officials on September 28, 2004, was filed for purposes of the “mail box rule,”1 five days late. Cotterell responded to our show cause order that his appeal should not be dismissed as untimely because the order denying relief did not inform him he had 30 days in which to file a notice of appeal.
We have no choice in this case. We must dismiss for lack of jurisdiction. See Dunbar v. State, 688 So. 2d 993 (Fla. 5th DCA 1997). However, we note again our discomfort with the fact that Florida Rule of Criminal Procedure 3.850 requires a defendant be told he or she has 30 days in which to appeal and Rule 3.800 does not. It is a discrepancy without a reason and a trap for the unwary.
Recently the Florida Supreme Court adopted an amendment to Florida Rule of Criminal Procedure 3.800 to repair another equally illogical discrepancy between Rule 3.800(a) and Rule 3.850. The amendment authorizes defendants under both rules to file motions for rehearing, thereby tolling the time to file an appeal.2 Prior to the amendment, defendants who filed motions for rehearing under Rule 3.800(a) often lost their rights to appeal because their motions for rehearing did not toll the time to appeal and their notices of appeal, filed after denial of their motions for rehearing, were untimely. Perhaps this remaining discrepancy should also be addressed.
DISMISSED.
THOMPSON and TORPY, JJ., concur. . See Haag v. State, 591 So. 2d 614 (Fla.1992).
. See In Re Amendments to Florida Rules of Criminal Procedure, 886 So. 2d 197 (Fla. Oct. 7, 2004) (amendments become effective on January 1, 2005).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris v. State, 911 So. 2d 221 (Fla. 2d DCA 2005)…e district courts have regularly received untimely appeals from orders denying motions under rule 3.800(a). Most of these appeals have been dismissed by unpublished orders, but some are reflected in published opinions. See, e.g., Cotterell v. State, 890 So. 2d 315 (Fla. 5th DCA 2004). District court judges have been particularly bothered in cases where they were required to dismiss appeals because the defendant was confused about the rule prohibiting motions for rehearing in rule 3.800(a) proceedings. See, e.…
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Tarver v. State, 932 So. 2d 596 (Fla. 5th DCA 2006)…rescribed in Rule 9.140(b)(3), Florida Rules of Appellate Procedure, and that the fault in missing the filing deadline lies solely with Mr. Tarver, we deny the petition. See McIntosh v. State, 906 So. 2d 1272 (Fla. 5th DCA 2005); Cotterell v. State, 890 So. 2d 315 (Fla. 5th DCA 2004). PETITION DENIED. SAWAYA and PALMER, JJ., concur.…
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Coley v. State, 103 So. 3d 252 (Fla. 4th DCA 2012)…e date the trial court rendered its order denying appellant’s motion to correct illegal sentence. Fla. R.Crim. P. 3.800(a). As a consequence, this court is without jurisdiction to review the merits of the trial court’s order. See Cotterell v. State, 890 So. 2d 315, 316 (Fla. 5th DCA 2004); Jordan v. State, 549 So. 2d 805, 806 (Fla. 1st DCA 1989). This dismissal is without prejudice to appellant seeking belated appeal of the order pursuant to Florida Rule of Appellate Procedure 9.141(c). Dismissed. POLE…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Amendments to the Florida Rules of Criminal Procedure, 886 So. 2d 197 (Fla. 2004)
- Dunbar v. State, 688 So. 2d 993 (Fla. 5th DCA 1997)