TERRENCE A. SMARTMAYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The notice of appeal was untimely because the motion for rehearing was not filed within the prescribed time period and therefore did not toll the time for appeal.
[1] An untimely motion for rehearing does not toll the time for filing a notice of appeal from an order denying postconviction relief.
[2] A defendant is not precluded from filing a subsequent timely motion for postconviction relief when the prior motion was dismissed as untimely rather than on the merits.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a motion for post-conviction relief, which the trial court denied. Appellant then filed a motion for rehearing, which was also denied.…
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PER CURIAM.
Terrence A. Smartmays appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Smart-mays filed a rule 3.850 motion asserting various claims of ineffective assistance of trial counsel concerning his 2004 convictions.1 On November 3, 2005, the trial court rendered an order denying the motion, noting “the defendant’s motion is premature” without further explanation.
On December 11, 2005 (mailbox rule), some thirty-eight (38) days after the rendition of the denial order, Mr. Smartmays filed a motion for rehearing. The motion was denied on March 8, 2006.
On March 28, 2006, Mr. Smartmays filed a notice of appeal. Based on what appeared to be Mr. Smartmays’s untimely motion for rehearing, this Court ordered him to show cause why this appeal should not be dismissed. His response did not address the issue.
The trial court’s order denying the rule 3.850 motion was rendered on November 3, 2005. Mr. Smartmays had thirty (30) days following the rendition of that order in which to appeal or fifteen (15) days of the date of service of that order in which to seek rehearing. See Fla. R.Crim. P. 3.850(g). Mr. Smartmays did neither.
Consequently, Mr. Smartmays’s untimely motion for rehearing did not toll the time in which he was permitted to file a notice of appeal.
Therefore, the notice of appeal is untimely and must be dismissed. See Jones v. State, 838 So. 2d 659 (Fla. 5th DCA 2003); Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997); Childs v. State, 649 So. 2d 349 (Fla. 1st DCA 1995).
Consequently, we withdraw our earlier opinion in this matter and the mandate. Because Mr. Smartmays’s postconviction motion was not dismissed on the merits, he is not precluded from filing another timely motion.
APPEAL DISMISSED; MOTION TO RECALL MANDATE GRANTED.
SAWAYA, ORFINGER and LAWSON, JJ., concur. . Mr. Smartmays’s convictions and sentences were affirmed on appeal. See Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005).
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Watkins v. State, 217 So. 3d 1135 (Fla. 3d DCA 2017)…or rehearing was not timely filed and thus did not toll rendition of the September 28, 2016, order denying Watkins’s motion for illegal sentence. See Parks, 126 So. 3d at 352; Reid v. Cooper, 955 So. 2d 31, 32 (Fla. 3d DCA 2007); Smartmays v. State, 937 So. 2d 712, 713 (Fla. 5th DCA 2006); Jones v. State, 838 So. 2d 659, 660 (Fla. 5th DCA 2003). Because Watkins filed an untimely motion for rehearing, we focus our inquiry on whether Watkins filed a timely Notice of Appeal. Rule 9.110(b) requires that an appea…
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Bell v. State, 952 So. 2d 1228 (Fla. 5th DCA 2007)…as hamstrung by internal prison policies regarding access to the prison library. Such claims in an unsworn response are insufficient for purposes of bestowing jurisdiction on this Court to entertain the instant appeal. See, e.g., Smartmays v. State, 937 So. 2d 712 (Fla. 5th DCA 2006). Similarly, the unsworn nature of Mr. Bell’s response renders it insufficient to treat the response as a petition for belated appeal. See Fla. R.App. P. 9.141(c)(3)(F). Mr. Bell’s recourse is to file a proper petition for belate…
Authorities Cited
- Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005)
- Brown v. State, 649 So. 2d 349 (Fla. 1st DCA 1995)
- Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997)
- Iven B. Jones, III v. State, 838 So. 2d 659 (Fla. 5th DCA 2003)