ALFREDO ROCA-MORENO, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's appeal was dismissed as untimely, but without prejudice, allowing him to file a petition for belated appeal under Florida Rules of Appellate Procedure 9.141(c) if he can document that a timely motion for rehearing was filed but overlooked by the trial court clerk.
An appeal dismissed as untimely may be dismissed without prejudice to permit filing a petition for belated appeal when the appellant can demonstrate that a timely motion for rehearing was filed but overlooked by the trial court clerk.
[1] A trial court clerk's failure to receive or process a timely motion for rehearing, constituting state action, may entitle a defendant to file a belated appeal petition ev…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“defendant entitled to belated appeal when his right to appeal has been frustrated by the circuit court clerk's "state action"”
The court cited Thomas v. State and Latimore v. State to support the proposition that a belated appeal may be granted when state action by the clerk has frustrated the defendant's appellate rights.
Roca-Moreno filed a rule 3.850 motion and a timely motion for rehearing, but the trial court clerk advised him they had not received the rehearing mot…
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PER CURIAM.
Defendant, Alfredo Roca-Moreno, III, appeals the denial of his rule 3.850 motion. This court entered an order to show cause why his appeal should not be dismissed because his notice of appeal was untimely. He responds that although he filed a timely motion for rehearing, the clerk of the trial court advised him that they had not received any such motion. Mr. Roca-Mor-eno has provided us with a copy of what appears to be a timely motion for rehearing that would have tolled the time for fifing a notice of appeal.
Regardless, this appeal must still be dismissed as untimely. The dismissal, however, is without prejudice to the fifing of a petition for belated appeal that is under oath and that complies with Florida Rules of Appellate Procedure 9.141(c). Although the rule does not require it, if Mr. Roca-Moreno again provides documentation to establish that he filed an earlier, timely motion for rehearing, which was somehow overlooked due to the State’s actions, it would facilitate his request for a belated appeal. See Thomas v. State, 905 So. 2d 1037, 1038 (Fla. 5th DCA 2005), citing Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (stating defendant entitled to belated appeal when his right to appeal has been frustrated by the circuit court clerk’s “state action”).
DISMISSED without prejudice.
THOMPSON, MONACO and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997)
- State v. Thomas, 696 So. 2d 1290 (Fla. 4th DCA 1997)
- Thomas v. State, 905 So. 2d 1037 (Fla. 5th DCA 2005)