CORINTHIAN LONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Corinthian Long appealed the denial of his Rule 3.850 postconviction motion. The appellate court reversed and remanded because the postconviction court dismissed Long's motion for rehearing as untimely without establishing the date the final order was served, making it impossible to determine whether the motion was actually filed within the required fifteen days or whether the court had jurisdiction to hear the appeal.
The appellate court reversed and remanded because it could not determine whether Long's motion for rehearing was timely filed or whether it had jurisdiction to hear the appeal. The postconviction court failed to establish the date the final order was served on Long and did not account for the three extra days provided under Florida Rule of Criminal Procedure 3.070 when an order is mailed.
[1] A postconviction court must determine the timeliness of a motion for rehearing based on the date of service of the final order, not the date of entry.
[2] A final order in a postconviction proceeding must contain a certificate of service.
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Join FLexlaw to unlock all legal intelligence“we are unable to determine whether Long's motion for rehearing was timely filed and whether this court has jurisdiction to hear the merits of Long's appeal”
Establishes the core jurisdictional problem that requires reversal and remand
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Join FLexlaw to unlock all legal intelligenceOn October 17, 2014, the postconviction court denied Long's Rule 3.850 motion. Long filed a motion for rehearing on November 6, 2014, by placing it in…
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Corinthian Long appeals the final order denying his motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings because we are unable to determine whether Long’s motion for rehearing was timely filed and whether this court has jurisdiction to hear the merits of Long’s appeal.
On October 17, 2014, the postconviction court rendered the final order denying Long’s rule 3.850 motion. On November 6, 2014, Long filed his motion for rehearing by placing it in prison officials’ hands. See Fla. R. App. P. 9.420(a)(2)(A). The postconviction court dismissed the motion as untimely, noting that a motion for rehearing must be filed within fifteen days of service of the final order. See Fla. R. Crim. P. 3.850(j). Long then filed a notice of appeal on November 24, 2014.
Although the postconviction court correctly cited rule 3.850(j), it did not state the date the final order was served on Long. Indeed, the final order does not contain a certificate of service as required by rule 3.850(i). The court also did not acknowledge that because the final order was mailed to Long, under Florida Rule of Criminal Procedure 3.070 he had an extra three days to file his motion.
In Dubose v. State, 906 So.2d 1230, 1230 (Fla. 2d DCA 2005), the postconviction court also correctly cited rule 3.850(j) but then found the motion for rehearing to be untimely based on the date the final order was entered rather than on the date it was served. Because the final order did not contain a certificate of service and there was no other record evidence that the order was served on Dubose by the clerk as required by rule 3.850(j), this court could not determine if the motion for rehearing was timely filed and if it had jurisdiction to hear his appeal. See id.; see also Fla. R. App. P. 9.020(i)(l) (providing that timely motions for rehearing suspend rendition of the final order until the filing of a signed, written order disposing of the motion).
As in Dubose, we reverse and remand to the postconviction court to “either attach record evidence establishing the untimeliness of the motion for rehearing and once again deny the motion as untimely or consider the motion on its merits.” 906 So.2d at 1230-31.
Reversed and remanded.
SILBERMAN, CRENSHAW, and BLACK, JJ., Concur.
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Authorities Cited
- Dubose v. State, 906 So. 2d 1230 (Fla. 2d DCA 2005)