ERIC MATTHEW RUSSELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that Florida Rule of Appellate Procedure 9.141(c) does not authorize a belated filing of a common law petition for certiorari, and thus the court has no power to grant such a petition.
[1] A petition for belated discretionary review under Florida Rule of Appellate Procedure 9.141(c) is not available to provide untimely review of a common law petition for ce…
[2] District courts of appeal have certiorari jurisdiction to review final orders of circuit courts acting in their review capacity.
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Join FLexlaw to unlock all legal intelligenceMr. Russell sought review of a circuit court's appellate decision affirming a denial of a postconviction motion. His initial filing was untimely and d…
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ORDER ON PETITIONER’S RENEWED PETITION FOR BELATED DISCRETIONARY REVIEW AND MOTION FOR RECONSIDERATION
This court earlier dismissed Eric Matthew Russell’s common law petition for second-tier certiorari as untimely. Mr. Russell has filed a renewed petition for belated discretionary review and motion for reconsideration. We strike the renewed petition; we grant reconsideration only to explain our reason for dismissing the original certiorari petition and to explain that a petition for belated discretionary review under Florida Rule of Appellate Procedure 9.141(c) is not available to provide untimely review of a common law petition for certiorari.
Mr. Russell was apparently charged with DUI as a second offense in county court in 2009. He entered a plea to this offense without realizing the effect it *484would have on his commercial driver’s license. He thereafter sought relief from his plea by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850. The county court denied the motion.1
Mr. Russell appealed to the circuit court, and it affirmed the county court’s order. He then filed a “notice of appeal” seeking review of the circuit court’s appellate decision. Because the circuit court’s order was not appealable, this court converted the proceeding to one in certiorari. See Fla. R.App. P. 9.030(b)(2)(B) (providing that the district courts of appeal have certiorari jurisdiction to review “final orders of circuit courts acting in their review capacity”); 9.040(c).
Unfortunately, the “notice of appeal” was filed beyond the thirty-day deadline for either a notice of appeal or a petition for certiorari. See Fla. R.App. P. 9.110(b), 9.100(c)(1). Accordingly, this court issued an order to show cause why the petition should not be dismissed as untimely. Mr. Russell’s attorney, apparently agreeing that the petition had been filed untimely, responded by filing a petition for belated appeal. He explained that Mr. Russell had asked him to “appeal” the circuit court’s ruling, but he had not timely filed a notice. We treated the petition as a motion and denied it, simultaneously dismissing the petition for certiorari as untimely.
Mr. Russell obtained new counsel who has filed a renewed petition for belated discretionary review2 and motion for reconsideration. He urges us to reconsider Mr. Russell’s request for review under the provision for belated discretionary review found in rule 9.141(c). We appreciate counsel’s diligence in pursuing this matter. Unfortunately, we conclude that we have no power to grant this petition.
Rule 9.141(q) simply does not encompass second-tier certiorari because second-tier certiorari falls under neither “belated appeal” nor “belated discretionary review.”3 We have constitutional authority to consider common law petitions for certiorari. See Art. V, § 4(b)(3), Fla. Const. When reviewing final orders of circuit courts acting in their appellate capacity, that power is recognized in rule 9.030(b)(2)(B). The common law petition for certiorari, however, is an original proceeding in a district court and is filed under Florida Rule of Appellate Procedure 9.100. Although it may function as a very narrow form of judicial review, it is not regarded as an appellate proceeding in the normal sense.4 We simply do not read *485rule 9.141(c) as authorizing a belated filing of a common law petition for certiorari.5 Accordingly, we hold that we have no power to extend the time to file such an original proceeding.6
Motion for reconsideration granted; petition for belated discretionary review is stricken.
KHOUZAM and SLEET, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perez v. Jones, 174 So. 3d 1088 (Fla. 1st DCA 2015)…, but we have no authority to grant a belated appeal in a civil proceeding, see Powell v. Florida Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999), nor do we have the authority to grant belated certio-rari review. See Russell v. State, 114 So. 3d 483 (Fla. 2d DCA 2013). Accordingly, the petition is DENIED. This disposition is without prejudice, however, to petitioner seeking relief in the lower tribunal. See generally, Milord v. Florida Parole Commission, 4 So. 3d 762 (Fla. 1st DCA 2009) (Browni…
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Hammons v. State, 158 So. 3d 758 (Fla. 2d DCA 2015)…order granting him a new trial for the charge of driving under the influence (third offense). The petition for writ of certiorari is untimely, and we do not have the authority to grant belated review of the circuit court order. See Russell v. State, 114 So. 3d 483, 484-85 (Fla. 2d DCA 2013). We note that even if the petition had been timely filed, it is without merit. After a jury found Hammons guilty, the county court granted Hammons’ motion for new trial based on the prosecutor’s comment that Hammons “vol…
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Crystal v. Fla. Dep't OF Corr., 160 So. 3d 499 (Fla. 1st DCA 2015)…frivolous, but we have no authority to grant a belated appeal in a civil proceeding, see Powell v. Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999), nor do we have the authority to grant belated certiorari review. See Russell v. State, 114 So. 3d 483 (Fla. 2d DCA 2013). Accordingly, the petition and supplemental petition are DENIED. This disposition is without prejudice, however, to petitioner seeking relief in the lower tribunal. See generally, Milord v. Florida Parole Commission, 4 So. 3d 762…
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763 (Fla. 1st DCA 2014)
- Sims v. State, 998 So. 2d 494 (Fla. 2008)
- In re Amendments to the Florida Rules of Civil Procedure, 102 So. 3d 451 (Fla. 2012)
- In re Amendments TO Fla. Rules OF Crim. Procedure 3.850 & 3.851, 72 So. 3d 735 (Fla. 2011)
- In re Amendments TO Fla. Rule OF App. Procedure 9.141, 992 So. 2d 233 (Fla. 2008)
- In re Amendments TO Fla. Rule OF App. Procedure 9.141, 1 So. 3d 168 (Fla. 2009)