WAYNE DUNBAR, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT

Fla. 3d DCA | 2017-04-19
No. 3D17-19
Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.
217 So. 3d 1103 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 2 cases

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Synopsis

Wayne Dunbar petitioned for a writ of mandamus seeking to compel the circuit court to transmit his appeal of an order striking his reply to a rule 3.850 motion as moot. The Florida District Court of Appeal dismissed the petition, holding that the reply was untimely and the order striking it was not appealable.


Holding

The trial court did not err in striking the reply as moot because the reply was filed outside the fifteen-day window for motions for rehearing and rule 3.850 does not authorize a reply to begin with. The appellate court lacks jurisdiction to review an order striking a reply because Florida Rule of Appellate Procedure 9.140(b) does not authorize an appeal of such an order.


Headnotes

[1] A motion for rehearing of an order denying a rule 3.850 motion must be filed within fifteen days of the service of the order.

[2] A reply filed after the time for filing a motion for rehearing has expired is not an authorized and timely motion that requires adjudication.

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Key Quotes

“Because Dunbar's September 16, 2016 reply was filed more than fifteen days after the trial court's August 25, 2016 order denying Dunbar's rule 3.850 motion, the trial court did not err by failing to treat Dunbar's reply as a motion for rehearing under rule 3.850(j).”

Establishes that the trial court properly rejected the late reply as untimely.

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Facts & Procedural History

Dunbar was convicted of possession of a firearm by a convicted felon. He filed a rule 3.850 motion to correct his sentence in August 2016, and the tri…

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Opinion of the Court
SCALES, J.

SCALES, J.

On January 3, 2017, Petitioner Wayne Dunbar filed with this Court the instant petition seeking a writ of mandamus. We dismiss the petition.

Last year, this Court affirmed without elaboration Dunbar’s conviction for possession of a firearm by a convicted felon. Dunbar v. State, 185 So.3d 1248 (Fla. 3d DCA 2016) (table). In August of 2016, Dunbar filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.850. The State responded on August 24, 2016. The following day, the trial court adjudicated Dunbar’s motion (granting his motion, in part, as to a jail credit calculation, but otherwise denying the motion), and Dunbar appealed this order to this Court on September 26, 2016. On April 12, 2017, this Court affirmed the decision of the trial court in case number 3D16-2361.

Presumably unaware that the trial court, on August 25, 2016, had denied his rule 3.850 motion, Dunbar, on September 16, 2016, filed a purported reply to the State’s August 24, 2016 response. Rather than treating Dunbar’s reply as a motion for rehearing1 of its August 25, 2016 order, the trial court simply struck Dunbar’s reply 2 as moot on October 5, 2016.3

Dunbar then forwarded a notice of appeal to the Miami-Dade Circuit Court in which he sought to appeal to this Court the trial court’s October 5, 2016 order striking his reply as moot. Because the circuit court apparently did not receive this notice of appeal, the clerk of the court did not transmit it to this Court. Thus, in the instant case, Dunbar has petitioned this Court to issue a writ of mandamus ordering the circuit court to transmit to this Court his appeal of the order striking his reply as moot.

Because Dunbar’s September 16, 2016 reply was filed more than fifteen days after the trial court’s August 25, 2016 order denying Dunbar’s rule 3.850 motion, the trial court did not err by failing to treat Dunbar’s reply as a motion for rehearing under rule 3.850(j). Dunbar’s reply was not an “authorized and timely motion”4 so as to authorize an adjudication by the trial court prior to this Court’s adjudication of Dunbar’s appeal in case number 3D16-2361. Because Florida Rule of Appellate Procedure 9.140(b) does not *1105authorize an appeal of an order striking a reply, this Court has no jurisdiction to review the trial court’s October 5, 2016 order. That the clerk of the circuit court did not receive or transmit Dunbar’s purported appeal of the trial court’s October 5, 2016 order is of no consequence. There are no grounds for this Court to issue a writ of mandamus.

Petition dismissed.


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Citator

Cited By

  • Dunbar v. State, 225 So. 3d 971 (Fla. 3d DCA 2017)
    …as to a jail credit calculation, but otherwise denying the motion), and Dunbar appealed the order to this Court on September 26, 2016. On April 12, 2017, this Court affirmed the decision of the trial court in case number 3D16-2361. Dunbar v. State, 217 So. 3d 1103, 1104 (Fla. 3d DCA 2017). Dunbar then filed the current motion seeking additional gain time.1 The trial court summarily denied the petition, and Dunbar here appeals. As an inmate in the custody of the DOC, Dunbar must fully exhaust his administra…

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