DWIGHT D. DUBOSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwight D. Dubose appeals the trial court's summary denial of his postconviction relief motion and dismissal of his motion for rehearing. The appellate court reverses because the trial court improperly calculated the rehearing deadline from the date of rendition rather than the date of service, and no certificate of service appears in the record to establish timeliness.
The appellate court reversed and remanded because the trial court erred in calculating the rehearing deadline from the date of rendition instead of the date of service, and the record lacks a certificate of service necessary to establish when the order was actually served on Dubose, making it impossible to determine whether the motion was timely.
[1] A motion for rehearing must be filed within 15 days of the date of service of the order, not the date of rendition.
[2] A trial court must provide record evidence establishing the untimeliness of a motion for rehearing.
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“a motion for rehearing must be filed "within 15 days of the date of service of the order."”
Establishes the correct legal standard for calculating the rehearing deadline under rule 3.850(g)
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Join FLexlaw to unlock all legal intelligenceThe trial court rendered an order denying Dubose's rule 3.850 postconviction relief motion on July 26, 2004. The order contained no certificate of ser…
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PER CURIAM.
Dwight D. Dubose appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and the trial court’s dismissal of his motion for rehearing. Because we are unable to determine whether Dubose’s motion for rehearing was timely filed, we reverse and remand for further proceedings.
The trial court’s order denying DuBose’s rule 3.850 motion was rendered on July 26, 2004. On August 24, 2004, Dubose filed a motion for rehearing which the trial court dismissed as untimely.1 In its order of dismissal, the trial court cites to rule 3.850(g) and correctly states that a motion for rehearing must be filed “within 15 days of the date of service of the order.” However, the trial court concludes that Du-bose’s motion for rehearing was untimely because “[a] review of the record reflects that the final Order was entered on July 26, 2004.”
It appears that the trial court calculated the fifteen day period for seeking rehearing from the date of rendition rather than the date of service of the order as required by the rule. The record reflects that the order rendered on July 26, 2004, contains no certificate of service. Nor is there any other record evidence that the order was served on Dubose by the clerk of court as required by rule 3.850(g). Therefore, we are unable to determine whether Dubose’s motion for rehearing was in fact untimely. See Jones v. State, 642 So. 2d 121, 122 (Fla. 5th DCA 1994) (‘Without a certificate of service it cannot be presumed that prompt notice of the order denying relief was given.”)
If Dubose’s motion for rehearing was timely filed, then the time to file the appeal of his rule 3.850 motion was tolled by Florida Rule of Appellate Procedure 9.020(i). Because the trial court calculated the rehearing period from the date of rendition rather than the date of service of the order, and because the timeliness of Dubose’s motion for rehearing cannot be determined from the record, we reverse the trial court’s order dismissing Dubose’s motion for rehearing. On remand, the trial court shall either attach record evidence establishing the untimeliness of the motion for rehearing and once again deny the motion as untimely or consider the motion on its merits.
Reversed and remanded.
FULMER, C.J., and CASANUEVA and KELLY, JJ., Concur. . The trial court’s order states that Dubose filed his motion for rehearing on August 31, 2004. However, his motion was delivered-to prison officials for mailing on August 24, 2004. See Pagan v. State, 899 So. 2d 1203 (Fla. 2d DCA 2005).
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Citator
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Corinthian Long v. State, 177 So. 3d 89 (Fla. 2d DCA 2015)…rtificate of service as required by rule 3.850(i). The court also did not acknowledge that because the final order was mailed to Long, under Florida Rule of Criminal Procedure 3.070 he had an extra three days to file his motion. In Dubose v. State, 906 So. 2d 1230, 1230 (Fla. 2d DCA 2005), the postconviction court also correctly cited rule 3.850(j) but then found the motion for rehearing to be untimely based on the date the final order was entered rather than on the date it was served. Because the final order…
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Rubin E. Palm v. State, 947 So. 2d 1199 (Fla. 1st DCA 2007)…ing relief was given,” and remanded the case to the lower tribunal for an evidentiary hearing to determine, among other things, whether the appellant failed to receive prompt notice of the denial of his 3.850 motion. See id. at 122; Dubose v. State, 906 So. 2d 1230 (Fla. 2d DCA 2005) (reversing dismissal of motion for rehearing where order did not contain certificate of service and there was no other record evidence indicating order had been served, as required by rule 3.850(g)); cf. Ortiz v. Moore, 741 So. 2d…
Authorities Cited
- Pagan v. State, 899 So. 2d 1203 (Fla. 2d DCA 2005)
- Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994)