GABRIEL DEL RISCO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Del Risco filed a pro se notice of appeal from the denial of his Rule 3.860 post-conviction relief motion, but the trial court vacated the underlying order before the notice of appeal was filed with the clerk. The appellate court dismissed the appeal for lack of jurisdiction because there was no appealable order at the time the notice was filed.
The court lacks jurisdiction to hear the appeal because there was no appealable order at the time the notice of appeal was filed with the clerk. The mailbox rule cannot invoke the jurisdiction of an appellate court when the underlying order has been vacated by the trial court.
[1] A pro se notice of appeal is a nullity if filed after the trial court has vacated the order being appealed.
[2] The mailbox rule for filing notices of appeal cannot invoke the jurisdiction of an appellate court when the order being appealed has been vacated by the trial court.
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Join FLexlaw to unlock all legal intelligence“the mailbox rule cannot, without notice, invoke the jurisdiction of one court while divesting another court of jurisdiction”
Establishes that the mailbox rule for pro se inmates cannot be used to establish appellate jurisdiction when the underlying order has been vacated by the trial court
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Join FLexlaw to unlock all legal intelligenceDel Risco filed a pro se Rule 3.860 motion for post-conviction relief on September 11, 2013. The circuit court denied the motion by written order on S…
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ON MOTION FOR REHEARING AND TO VACATE OPINION FOR LACK OF JURISDICTION
We grant the appellant’s motion for rehearing and to vacate opinion for lack of jurisdiction, vacate the prior per curiam affirmance issued December 16, 2016, and issue the following opinion in its stead.
The defendant filed a pro se Florida Rule of Civil Procedure 3.860 motion for post-conviction relief in the circuit court on September 11, 2013. Counsel was retained to represent the defendant as to the motion for post-conviction relief. The matter was set for hearing, but defense counsel asserts that he was not properly notified of the hearing date. The motion was denied by the circuit court through a written order on September 29, 2016. Defense counsel was not immediately aware of the denial and unbeknownst to defense counsel, a copy of the order denying the motion was forwarded to the incarcerated defendant. Upon defense counsel’s motion, on October 26, 2016, the trial court subsequently vacated its September 29, 2016 order. However, on or about October 26, 2015, the defendant submitted his pro se notice of appeal in the instant case at his correctional facility, but it was not filed with the clerk of the court until October 30, 2015. Because the trial court had already vacated the September 29, 2015 order at the time the pro se notice of appeal was filed, there was no appealable order within the jurisdiction of this Court, and the notice of appeal is a nullity. See Little v. Little, 616 So.2d 1179, 1180 (Fla. 1st DCA 1993) (“[T]he mailbox rule cannot, without notice, invoke the jurisdiction of one court while divesting another court of jurisdiction.”). We therefore vacate our decision of December 16, 2015 and dismiss the appeal for lack of jurisdiction.
Appeal dismissed.
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Citator
Cited By
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Loor v. State, 239 So. 3d 764 (Fla. 3d DCA 2018)
Authorities Cited
- Little v. Little, 616 So. 2d 1179 (Fla. 1st DCA 1993)