ZACHARY LINVILLE
v.
STATE
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A pro se inmate's notice of appeal is not timely filed when placed in the institution's hands without affirmatively directing that the original notice be mailed to the clerk of the lower court, even if the certificate of service lists the State Attorney or Attorney General.
[1] A notice of appeal must be filed with the clerk of the court whose order or judgment is being appealed within thirty days of rendition.
[2] When a pro se inmate relies on the institution for mailing a notice of appeal, the inmate must clearly state in writing that the original notice of appeal is to be mailed…
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Join FLexlaw to unlock all legal intelligence“the inmate must clearly state in writing that the original notice of appeal is to be mailed to and filed with the clerk of the court whose order or judgment is being appealed, and should include the name and address of that clerk of the court on the certificate of service.”
Court explaining the requirement for pro se inmates filing notices of appeal
Zachary Linville, a pro se inmate, placed a notice of appeal with his institution for mailing but listed only the State Attorney and Attorney General …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED ZACHARY LINVILLE,
Petitioner,
v. Case No. 5D18-1975 STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed August 24, 2018
Petition for Belated Appeal, A Case of Original Jurisdiction.
Zachary Linville, Wewahitchka, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
EDWARDS, J. The petition for belated appeal is denied. The record before this Court shows that
Petitioner, Zachary Linville, failed to comply with Florida Rule of Appellate Procedure
9.110(b). That rule requires the notice of appeal to be filed with the clerk of the court whose order or judgment is being appealed within thirty days of rendition. If a pro se inmate relies upon the institution in which the inmate is incarcerated to mail the inmate’s notice of appeal, the inmate must clearly state in writing that the original notice of appeal is to be mailed to and filed with the clerk of the court whose order or judgment is being appealed, and should include the name and address of that clerk of the court on the certificate of service.
Florida Rule of Appellate Procedure 9.420(a)(2) governs the procedure for a notice of appeal that is addressed to the clerk of the lower court and placed in the hands of the inmate’s institution for mailing. However, filing of the notice of appeal does not occur when an inmate, as Petitioner did here, places in the hands of the institution a notice of appeal with a certificate of service that lists the State Attorney and/or the Attorney
General, but which does not affirmatively direct mailing of the original notice of appeal to the clerk of the lower court.1
In this case, the time for filing the original notice of appeal with the clerk of the lower court has expired; therefore, this Court has no jurisdiction to entertain Petitioner’s appeal, and there is no legal basis for granting Petitioner’s request for a belated appeal.
PETITION DENIED. SAWAYA and TORPY, JJ., concur.