ROBERT A. GAITHER, APPELLANT,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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The appellate court dismissed the appeal because the issue of the lien was not timely raised in the circuit court.
Appellant challenged a lien imposed on his inmate trust account for costs incurred in filing a petition for writ of mandamus. The petition challenged …
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HAWKES, J.
Appellant challenges the circuit court’s imposition of a lien on his inmate trust account for costs incurred in filing a petition for writ of mandamus. The petition for writ of mandamus challenged the amount of gain-time the Department of Corrections awarded. As the State correctly concedes, Appellant’s challenge directly affected the time he would spend in prison. Consequently, this is a collateral criminal proceeding for which a lien is improper. See Schmidt v. Crusoe, 878 So. 2d 361 (Fla.2003).
However, Appellant raised the issue in the circuit court by filing a “Petition to Reopen Collateral Criminal Proceeding” seven months after the court entered its order denying Appellant’s petition. This court has held that, for a lien challenge to be preserved for appeal, the issue must be properly and timely raised in the circuit court. See Kemp v. McDonough, 955 So. 2d 635 (Fla. 1st DCA 2007); Parker v. McDonough, 958 So. 2d 1108 (Fla. 1st DCA 2007); Norman v. Fla. Parole Comm’n, 957 So. 2d 697 (Fla. 1st DCA 2007).
Because the circuit court proceeding sought review of quasi-judicial action by a lower tribunal (i.e., the Department of Corrections), it was governed by the Florida Rules’ of Appellate Procedure. See Wilkinson v. McDonough, 960 So. 2d 911 (Fla. 1st DCA 2007). Appellant’s recourse was to file a motion for rehearing or clarification pursuant to Florida Rule of Appellate Procedure 9.330. Treating Appellant’s petition’as having been filed according to that rule, it was untimely. Consequently, this court lacks jurisdiction to address the appeal on its merits. The appeal is hereby DISMISSED.
KAHN and PADOVANO, JJ., concur.
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Hale v. McNEIL, 988 So. 2d 1123 (Fla. 1st DCA 2008)…pellant’s filings were untimely, this Court does not have jurisdiction over his claims. When an inmate has failed to act timely, he cannot invoke this Court’s jurisdiction merely by filing a new pleading in the trial court. See Gaither v. McDonough, 968 So. 2d 57, 58 (Fla. 1st [*1125] DCA 2007) (finding a lack of appellate jurisdiction when an inmate waited seven months to challenge the imposition of a lien on his trust account). If so, there would be no time limits on inmates, which would be contrary to the…
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Autley Mobley v. McNEIL, 35 So. 3d 972 (Fla. 1st DCA 2010)…PER CURIAM. DENIED. See Gaither v. McDonough, 968 So. 2d 57 (Fla. 1st DCA 2007). WEBSTER, LEWIS, and ROBERTS, JJ., concur.…
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Brown v. Fla. Parole Comm'n, 989 So. 2d 669 (Fla. 1st DCA 2008)…[*670] PER CURIAM. This appeal is DISMISSED for lack of jurisdiction. See Gaither v. McDonough, 968 So. 2d 57, 58 (Fla. 1st DCA 2007). DAVIS, PADOVANO, and ROBERTS, JJ., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003)
- Kemp v. McDONOUGH, 955 So. 2d 635 (Fla. 1st DCA 2007)
- Wilkinson v. McDONOUGH, 960 So. 2d 911 (Fla. 1st DCA 2007)
- Norman v. Fla. Parole Comm'n, 957 So. 2d 697 (Fla. 1st DCA 2007)
- W.T. Parker v. McDONOUGH, 958 So. 2d 1108 (Fla. 1st DCA 2007)