GEORGE M. DANIELS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A belated appeal should be granted when a motion for enlargement of time to move for rehearing is timely filed and shows good cause.
Petitioner sought postconviction relief, which was denied. His subsequent motion for enlargement of time to move for rehearing was denied, leading to …
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PER CURIAM.
George M. Daniels seeks a belated appeal from an order which denied his motion for postconviction relief. For the reasons set forth below, we grant the petition for belated appeal.
The Circuit Court for Duval County denied Daniels’ postconviction motion by or der of March 4, 2003, and on March 15, 2003, Daniels moved for an enlargement of time to move for rehearing. The motion for rehearing was filed on April 17, 2003. Both the motion for enlargement of time and the motion for rehearing were denied on July 10, 2003. Daniels filed a notice of appeal on August 6, 2003, which was assigned this court’s case number 1D03-3605. The appeal was dismissed. Daniels v. State, 860 So. 2d 21 (Fla. 1st DCA 2003).
Petitioner argues, and we agree, that a belated appeal should be granted in this circumstance because the time for moving for rehearing of denial of postcon-viction relief can be extended in accordance with Florida Rule of Criminal Procedure 3.050. See Nguyen v. State, 868 So. 2d 666 (Fla. 1st DCA 2004). In the instant case, the motion for enlargement of time to move for rehearing was filed within the time for moving for rehearing and stated good cause, Daniels’ need to schedule time in the prison library and to obtain the assistance of an inmate law clerk. Thus, the motion for extension of time should have been granted and the motion for rehearing would have therefore postponed rendition of the order, resulting in the notice of appeal being timely filed. Daniels is accordingly granted a belated appeal of the order of the Circuit Court for Duval County which denied his motion for postconviction relief in case number 99-13201-CF-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal with directions that it be treated as a timely notice of appeal.
PETITION GRANTED.
WOLF, C.J., WEBSTER and HAWKES, JJ., concur.
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McCORMICK v. State, 961 So. 2d 1099 (Fla. 2d DCA 2007)…ed,” McCormick made at least a prima facie statement of his reasons for the delay: being in transport with the Department of Corrections (forty days) and his inability to immediately access the prison law library (eleven days). Cf. Daniels v. State, 892 So. 2d 526 (Fla. 1st DCA 2004) (trial court should not have denied motion for enlargement of time when ground was movant’s need to schedule time in prison library and [*1102] obtain assistance of inmate law clerk). Finally, both Brantley and Cunniff allow for…
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Gary v. State, 5 So. 3d 713 (Fla. 1st DCA 2009)…d not postpone rendition of the April 3 order, the ensuing appeal was dismissed for lack of jurisdiction in Gary v. State, 993 So. 2d 96 (Fla. 1st DCA 2008). In now seeking a belated appeal, Gary relies on this Court’s decision in Daniels v. State, 892 So. 2d 526 (Fla. 1st DCA 2004). In Daniels, we granted a belated appeal based on the conclusion that the trial court improperly denied a motion for extension of time to seek rehearing where it was alleged that the movant needed to schedule time in the prison l…
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Gary v. State, 993 So. 2d 96 (Fla. 1st DCA 2008)…BENTON, J., concurring. This dismissal is without prejudice to the appellant’s right to file a petition for belated appeal. See Daniels v. State, 892 So. 2d 526 (Fla. 1st DCA 2004).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wyndham Int'l, Inc., 868 So. 2d 666 (Fla. 1st DCA 2004)
- Daniels v. State, 860 So. 2d 21 (Fla. 1st DCA 2003)