RICKEY NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Neal appeals the summary denial of his post-conviction relief motion, but the appeal is dismissed for lack of jurisdiction because his notice of appeal was filed far beyond the thirty-day deadline. The court found that Neal's motion for rehearing was also untimely, failing to toll the appellate period.
The court lacks jurisdiction to hear the appeal because Neal's notice of appeal was filed more than thirty days after the order was served, and his untimely motion for rehearing did not toll the appellate period. The court dismisses the appeal without prejudice to Neal's right to seek a belated appeal if he can prove he was not actually served until December 28, 2004.
[1] A certificate of service prevails over a handwritten notation to establish the presumptive date of service of an order.
[2] A motion for rehearing is untimely if filed more than fifteen days after service of the order, plus three additional days for service by mail, unless the motion is filed…
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Join FLexlaw to unlock all legal intelligence“Because the motion for rehearing was filed more than fifteen days after service of the order, it was untimely and did not toll the time for taking an appeal.”
Establishes that the untimely rehearing motion failed to extend the appellate filing deadline
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Join FLexlaw to unlock all legal intelligenceNeal filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The order denying this motion was served on Neal on Dec…
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Neal appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. It appears from this record that the order denying post-conviction relief was served on Neal on December 22, 2004. His motion for rehearing was not filed under the mail box rule1 until January 13, 2005. Because the motion for rehearing was filed more than fifteen days after service of the order, it was untimely and did not toll the time for taking an appeal. See generally, Fla. R.Crim. P. 3.850(g); Fla. R.App. P. 9.020(h); Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997). Neal’s notice of appeal was not filed under the mail box rule until September 14, 2005, long after the running of the thirty days required for affording an appellate court jurisdiction over an appeal.2
Neal argues that the prison did not receive the order denying relief until January 3, 2005 and that he did not personally receive the order until January 4, 2005. However, this was still within the fifteen-day period for filing a motion for rehearing. If he received the order denying relief within the rehearing period, he had fifteen days from the date of service of the order to file a motion for rehearing, with an additional three days added because the order denying relief was served by mail. See Fla. R.Crim. P. 3.070. Because the order denying relief was served on Neal on December 22, 2004, Neal had eighteen days in which to place his motion for rehearing into the hands of prison officials or until January 9, 2005. Since January 9, 2005 fell on a Sunday, he had until January 10, 2005, Monday, to place his motion for rehearing into the hands of prison officials under the mail box rule. He missed this time deadline by three days.
Neal points to a handwritten note on the side of the order denying the 3.850 motion: “ce deft 12/28/04,” followed by unidentified initials. He claims this shows that he was not served until December 28, 2004. However, the certificate of service prevails over a handwritten notation to establish the presumptive date of service. See Thompson v. State, 761 So. 2d 324 (Fla.2000).
Accordingly, we dismiss this appeal for lack of jurisdiction without prejudice to Neal to seek a belated appeal in which he bears the burden of pleading and proving the order was not actually served on him until December 28, 2004. See Fla. R.App. P. 9.141(c).
DISMISSED.
THOMPSON and SAWAYA, JJ„ concur. . See Haag v. State, 591 So. 2d 614 (Fla.1992).
. See Fla. R.Crim. P. 3.850(g); Fla. R.App. P. 9.140(b)(1)(D).
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Cothron v. State, 927 So. 2d 109 (Fla. 5th DCA 2006)…PER CURIAM. AFFIRMED. See Neal v. State, 915 So. 2d 746 (Fla. 5th DCA 2005). SHARP, W., ORFINGER and LAWSON, JJ., concur.…
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Penate v. State, 967 So. 2d 364 (Fla. 5th DCA 2007)…t of the opinion. While not an ideal scenario, Petitioner clearly had sufficient time to file the instant petition within 30 days from the rendition of the opinion. This Court has required a similar standard from pro se litigants. In Neal v. State, 915 So. 2d 746 (Fla. 5th DCA 2005), this Court dismissed the appellant’s rule 3.850 appeal as untimely because the ap [*365] pellant had failed to file a timely motion for rehearing in the lower court, thus, his time for filing a notice of appeal was not tolled. T…
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Watkins v. State, 217 So. 3d 1135 (Fla. 3d DCA 2017)…. This second stamp mark, however, fails to support the timeliness argument as it does not reflect a date of service. Indeed, the law is clear that it is the certificate of service that establishes the presumptive date of service. See Neal v. State, 915 So. 2d 746, 747 (Fla. 5th DCA 2005). The second [*1138] stamp mark dated October 13, 2016, only establishes that the order attached to the notice of appeal is a certified copy of the original order. As such, we find that the presumptive date of service for the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997)