ARTHUR GREEN A/K/A RICHARD SMART A/K/A RICHARD SMART GREEN A/K/A ARTHUR RICHARD SMART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Green appealed from orders denying his motion to vacate a manslaughter sentence under Rule 3.850, claiming the trial court erred in denying relief. The Fourth District dismissed the appeal for lack of jurisdiction because Green's notice of appeal was not timely filed within 30 days of the order denying the motion to vacate.
The court dismissed the appeal for lack of jurisdiction, holding that Rule 3.850 collateral proceedings are governed by civil procedure rules, which provide a 30-day appeal deadline. The motion for rehearing was neither timely nor proper under applicable rules and therefore could not postpone the rendition date, making the notice of appeal untimely.
[1] A proceeding under Rule 3.850, RCrP, to attack a judgment or sentence is collateral to the criminal action and must be litigated according to civil procedure rules.
[2] The time for taking an appeal from an order denying a motion to vacate under Rule 3.850, RCrP, is 30 days from the rendition of that order.
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Join FLexlaw to unlock all legal intelligence“A proceeding under Rule 3.850, R CrP, to attack a judgment or sentence or both is collateral to the criminal action under attack and such proceeding must be litigated in accordance with rules governing civil procedure, both at the trial and appellate levels, except where those rules are inconsistent with the specific provisions of Rule 3.850, RCrP.”
Establishes that Rule 3.850 motions are governed by civil procedure rules and therefore subject to the 30-day appeal deadline.
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Join FLexlaw to unlock all legal intelligenceGreen was indicted for first-degree murder in December 1971 and entered a guilty plea to manslaughter in February 1972, receiving a sentence of six mo…
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This purports to be an appeal from an order denying a motion to vacate a sentence and also an appeal from an order denying a motion for a rehearing on the motion to vacate.
The following are the significant procedural events which preceded the filing of this appeal. The defendant was indicted on 1 December 1971 for first degree murder. The court in which the indictment was filed, the Circuit Court for the Seventeenth Judicial Circuit, entered an order on the 7th day of December 1971 appointing a special public defender to represent the defendant. Thereafter, on 24 February 1972 the defendant appeared with counsel before the trial court and pled guilty to the lesser included offense of manslaughter. The plea was accepted, and the defendant was sentenced to imprisonment for six months to fifteen years. On 6 June 1972, the defendant filed a motion to vacate the judgment and sentence pursuant to Rule 3.850, RCrP, 33 F.S.A. When this motion was brought to the attention of the trial judge, he appointed as counsel for the defendant the same attorney who had represented the defendant as a special public defender in connection with the original criminal prosecution up through the time of the plea and sentencing.
On 4 October 1972 after an evidentiary hearing on the motion to vacate, the trial judge entered an order denying the same and appointed yet another attorney to represent the defendant for purposes of taking an appeal from the order denying the motion to vacate. This attorney, instead of promptly filing a notice of appeal, served a motion for a rehearing on 31 October 1972. The motion for rehearing was filed on 6 November 1972. On 8 November 1972, an order was entered by the trial court denying the motion for a rehearing on the motion to vacate, and a notice of appeal was filed in the trial court on 7 December 1972 purporting to appeal from both the order denying the motion to vacate and the order denying the motion for rehearing.
A proceeding under Rule 3.850, R CrP, to attack a judgment or sentence or both is collateral to the criminal action under attack and such proceeding must be litigated in accordance with rules governing civil procedure, both at the trial and appellate levels, except where those rules are inconsistent with the specific provisions of Rule 3.850, RCrP. Barton v. State, Fla.App.1965, 176 So.2d 597; State ex rel. Faircloth v. District Court of Appeal, Fla.1966, 194 So.2d 600, and Lawrence v. State, Fla.1967, 198 So.2d 328.
It follows that the time for taking an appeal from an order denying a motion to vacate is 30 days from the rendition of that order. See Rule 3.2, subd. b, F.A.R., 32 F.S.A. In the present case, the order' denying the motion to vacate was filed and made a matter of record on 5 October 1972. It was, therefore, rendered on that date, unless the motion for rehearing served by the defendant on 31 October 1972 postponed the rendition until 8 November 1972 when that motion was disposed of.
Rule 1.4, F.A.R. provides that a timely and proper motion for rehearing will postpone the rendition date. The motion for rehearing filed in the present case was neither timely nor proper. It was not proper because neither Rule 3.850, RCrP, nor the Florida Rules of Civil Procedure provide for such a motion. If Rule 1.530, RCP, 31 F.S.A., could conceivably be construed to authorize such a motion — and we do not believe it could — the motion would not have been timely under the provisions
*703of that rule. For the foregoing reason, the order denying the motion to vacate was “rendered” on 5 October 1972 and the notice of appeal was not timely, and this court is without jurisdiction to review the order.
To the extent that the notice of appeal attempts to appeal from the order denying the motion for rehearing, it brings nothing to this court for review where no appeal has been taken from the final order as to which the rehearing was sought. Finley v. Finley, Fla.1958, 103 So.2d 191.
For the foregoing reasons, this appeal is dismissed for want of jurisdiction.
WALDEN and MAGER, JJ., concur.
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State v. Lasley, 507 So. 2d 711 (Fla. 2d DCA 1987)…orpus proceeding an action under rule 3.850 is considered civil in nature and collateral to the criminal prosecution which resulted in the judgment of conviction, notwithstanding the inclusion of rule 3.850 within the criminal rules. Green v. State, 280 So. 2d 701 (Fla. 4th DCA 1973); Tolar v. State, 196 So. 2d 1 (Fla. 4th DCA 1967); Lett v. State, 195 So. 2d 608 (Fla. 2d DCA 1967). Florida Rule of Appellate Procedure 9.110(b), not 9.140(c)(2), controls, and affords the prospective appellant thirty days to fi…
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Dubose v. State, 371 So. 2d 1053 (Fla. 3d DCA 1979)…PER CURIAM. Affirmed. See, e. g., Silver v. State, 188 So. 2d 300 (Fla.1966); State v. District Court of Appeal, Third District, 187 So. 2d 980 (Fla.1966); Gillman v. State, 346 So. 2d 586 (Fla. 1st DCA 1977), and Green v. State, 280 So. 2d 701 (Fla. 4th DCA 1973).…
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Baker v. State, 352 So. 2d 588 (Fla. 3d DCA 1977)…uary 28, 1977, denying a motion to vacate the judgment and sentence entered against him. The notice of appeal, filed on March 11, 1977, was filed untimely; therefore, this court lacks jurisdiction to entertain the appeal. See, e. g., Green v. State, 280 So. 2d 701 (Fla. 4th DCA 1973); Sparks v. State, 262 So. 2d 251 (Fla. 4th DCA 1972); Pitts v. State, 225 So. 2d 352 (Fla. 1st DCA 1969); and Fla.App. Rule 3.2. Accordingly, the appeal is dismissed for lack of jurisdiction. Dismissed.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chambers v. State, 176 So. 2d 597 (Fla. 3d DCA 1965)
- Williams v. Levine, 103 So. 2d 191 (Fla. 1958)
- Finley v. Coralee Russell Finley, 103 So. 2d 191 (Fla. 1958)
- State of Fla. ex rel. Earl Faircloth v. The Dist. Court OF Appeal IN & FOR the First Dist., 194 So. 2d 600 (Fla. 1966)
- Price v. Miami Extruders, Inc., 198 So. 2d 328 (Fla. 1967)
- Lawrence v. State, 198 So. 2d 328 (Fla. 1967)