TELLY HOLLINGER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Telly Hollinger petitioned for a belated appeal after his original appeal was dismissed for counsel's failure to comply with appellate rules and court orders. The court granted the petition and allowed a new appellate proceeding to go forward, while also clarifying the jurisdictional status of the underlying judgment and sentence.
The court granted Hollinger's petition for a belated appeal and authorized a new appellate proceeding. The court clarified that the state's motion to correct the sentence was properly authorized under Rule 3.800(b)(1) and postponed rendition of the judgment, making the judgment and sentence the subject of appeal rather than the order granting the motion.
[1] A belated appeal may be granted when the original appeal was dismissed due to counsel's failure to comply with appellate rules and court orders.
[2] A court may grant a petition for a belated appeal and treat the lower tribunal's clerk's receipt of the opinion as a notice of appeal, even after mandate has issued in th…
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 belated appeal is now sought on behalf of Hollinger and it is argued that the appellant should not be deprived of the right of review due to counsel's shortcomings in the original appeal”
Establishes the basis for granting the petition—that counsel's inadequate representation should not bar appellate review
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHollinger was convicted and sentenced in Leon County case number 2003 CF 1877. Judgment and sentence were entered on June 21, 2004. The state filed a …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Telly Hollinger appealed his judgment and sentence in Leon County case number 2003 CF 1877 in this court’s case number 1D04-3372. That appeal was dismissed for counsel’s failure to comply with the Florida Rules of Appellate Procedure and the orders of this court. Hollinger v. State, 890 So. 2d 501 (Fla. 1st DCA 2004). A belated appeal is now sought on behalf of Hollinger and it is argued that the appellant should not be deprived of the right of review due to counsel’s shortcomings in the original appeal. The state expresses no objection in the circumstances.
We therefore grant the petition and afford Hollinger a belated appeal from judgment and sentence in Leon County case number 2003 CF 1877. Because mandate has issued in case number 1D04-3372, that case cannot be reinstated. Instead, it will be necessary to commence a new appellate proceeding. A copy of this opinion will be furnished to the clerk of the lower tribunal upon issuance of mandate, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).
Finally, we take this opportunity to clarify a jurisdictional concern. Judgment and sentence were entered on June 21, 2004, and the state moved to correct the sentence on July 2, 2004. The motion was granted and the sentence was amended on July 12, 2004. The notice of appeal was filed on July 21, 2004. Although the state’s motion purported to be made under Florida Rule of Criminal Procedure 3.800(a), that rule subdivision provides that such a motion may not be filed during the time allowed for filing of a motion under Rule 3.800(b)(1), which permits a motion to be filed before the filing of the notice of appeal. Thus, the state s motion was authorized by Rule 3.800(b)(1) and it postponed rendition of the judgment and sentence in accordance with Florida Rule of Appellate Procedure 9.020(h). In short, while the parties and the lower tribunal have been treating the case as one for appeal of the order granting the state’s motion, we find that it is the judgment and sentence which are appealed. The order of July 12, 2004, is, of course, reviewable in that appeal. Therefore, the new appellate proceeding shall be so designated.
PETITION GRANTED.
WEBSTER, POLSTON and HAWKES, JJ., concur.
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Shelton v. State, 944 So. 2d 501 (Fla. 5th DCA 2006)…in subsection (1) the procedure as it relates to a motion filed before appeal of the defendant’s sentence, and in subsection (2) the procedure as it relates to a motion filed pending appeal of the defendant’s sentence); see also Hollinger v. State, 920 So. 2d 1213 (Fla. 1st DCA 2006) (noting that the appeal of the petitioner’s judgment and sentence also provides the appellate court with jurisdiction to review the trial court’s order granting the state’s rule 3.800(b)(1) motion). Furthermore, rule 3.800(b)(1)…
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Ira Demetrius McPHERSON v. State, 198 So. 3d 675 (Fla. 2d DCA 2015)…ion for Rehearing to Correct Illegal Sentence was properly considered under rule 3.800(b)(1) because the motion was filed before the notice of appeal and had the effect of staying rendition of Mr. McPherson’s new sentence. .. See Hollinger v. State, 920 So. 2d 1213, 1213-14 (Fla. 1st DCA 2006). In addition, although Mr. McPherson states ⅛ the notice of appeal that he is appealing an order denying relief under rule 3.800(a), he. cited to. rule 3.800(b) in his motion. ■ Accordingly, we treat this appeal as a dir…
Authorities Cited
- Telly Hollinger v. State, 890 So. 2d 501 (Fla. 1st DCA 2004)
- Platt v. State, 890 So. 2d 501 (Fla. 1st DCA 2004)