LAWRENCE DEWAYNE SLOCUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2012-07-24
No. 1D11-6585
CLARK and MAKAR, JJ., concur.
95 So. 3d 911 Florida District Court of Appeal, First District (2012) Caution
Cited by 16 cases

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Holding

The court held that an appeal from an order denying postconviction relief is untimely if the notice of appeal is not filed within thirty days of that order, even if resentencing occurs later.


Headnotes

[1] An order granting in part and denying in part a motion for postconviction relief is a final order for appellate purposes, marking the conclusion of collateral proceedings…

[2] A timely appeal from an order denying postconviction relief is a jurisdictional prerequisite for appellate review of that order.

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Facts & Procedural History

Lawrence Slocum appealed an order denying in part his motion for postconviction relief. He filed a notice of appeal after the deadline for appealing t…

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Opinion of the Court
BENTON, C.J.

ORDER DISMISSING APPEAL

BENTON, C.J.

Lawrence Dewayne Slocum appeals an order denying in part the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss as untimely his appeal from the order finally deciding his claims for collateral relief.

Collateral proceedings began with a motion challenging convictions and sentences under Rule 3.850, and ended on July 27, 2011, when the postconviction court entered the order granting the motion in part and denying it in part: The court denied all relief as to the convictions, but set aside the sentences. In addition to disposing of all claims set out in the motion, the circuit court’s order appointed the Office of Regional Counsel to represent the movant as the defendant in the original case when he appeared for resentencing.

After resentencing in the original case, which occurred on October 19, 2011, counsel perfected an appeal by notice of appeal filed on November 7, 2011. Then, on November 17, 2011, Mr. Slocum filed another notice of appeal pro se, which reflected an intention to appeal, not only the resentenc-ing, but the order of July 27, 2Ó11, as well, insofar as it had denied collateral relief (although the notice of appeal referenced an apocryphal order purportedly denying collateral relief on October 19, 2011). New appointed counsel filed a brief raising only one issue, an issue going, not to the resen-tencing, but to the postconviction court’s summary denial of a claim stated in the Rule 3.850 motion.

When we ordered Mr. Slocum to show cause why his appeal from denial of collateral relief should not be dismissed as untimely, counsel argued that the November 7 notice of appeal

created jurisdiction to review not only the resentencing necessitated by the partial grant of relief on Slocum’s motion for postconviction relief, but also the July 27, 2011, partial denial of post-conviction relief. See King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001) (concluding that “the better course” in appeals in this posture is to allow all of the appellant’s challenges to remain in one case and to redesignate the appeal as a direct appeal from the new sentence”).

But King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001), does not control here. Our holding1 in King applies only when the *913appeal is both timely as to the resentenc-ing and timely as to the order denying the motion for postconviction relief.

The July 27, 2011 order denying relief in part and granting relief in part conclusively resolved all of Mr. Slocum’s postconviction claims, and finally concluded collateral proceedings.2

An order denying in part and granting in part relief ... marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes.... [I]f the part of the motion which is granted requires subsequent action on the principal case under attack, such as resentencing, [there is] no jurisdictional impediment imposed by the appeal from the postcon-viction motion to prevent that action.

Cooper v. State, 667 So.2d 932, 933 (Fla. 2d DCA 1996). We have held that “resen-tencing [in the original case] is a de novo proceeding,” Jones v. State, 35 So.3d 69, 70 (Fla. 1st DCA 2010), legally discrete from the collateral proceeding.

Because no notice of appeal was filed within thirty days of the order disposing of the appellant’s postconviction claims, and no issue has been raised regarding the resentencing, we are without jurisdiction to hear this appeal. For that reason, we dismiss the appeal.

Dismissed.

CLARK and MAKAR, JJ., concur.


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Citator

Cited By

  • Lamont Taylor v. State, 140 So. 3d 526 (Fla. 2014)
    …for review of the Fifth District Court of Appeal’s decision in Taylor v. State, 96 So. 3d 989 (Fla. 5th DCA 2012), which the Fifth District certified is in direct conflict with the decisions of the First District Court of Appeal in Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012), and the Second District Court of Appeal in Cooper v. State, 667 So. 2d 932 (Fla. 2d DCA 1996).1 The certified conflict issue presented in this case is whether an order disposing of a postconviction motion which partially denies…
  • Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019)
  • Lamont Taylor v. State, 96 So. 3d 989 (Fla. 5th DCA 2012)
    …d motion “did not create a new, separate proceeding. Instead, it is a motion filed in a continuation of the original criminal proceeding,” thus order granting motion was not final” because resentencing had not yet occurred); but see Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012) (dismissing appeal of denial of postconviction claims from resentencing order for lack of jurisdiction because earlier order denying in part and granting in part the postconviction claims “finally concluded collateral proceedings…

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