Callaghan v. State

District Court of Appeal of Florida

Callaghan v. State

32 So. 3d 72, 2009 Fla. App. LEXIS 9596, 2009 WL 2032361

CourtDistrict Court of Appeal of Florida

DecidedJuly 15, 2009

Docket2D09-270

StatusPublished

Cited by1 cases

This text of 32 So. 3d 72 (Callaghan v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Callaghan v. State, 32 So. 3d 72, 2009 Fla. App. LEXIS 9596, 2009 WL 2032361 (Fla. Ct. App. 2009).

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Opinion

ALTENBERND, Judge.

Daniel Callaghan appeals an order entered by the trial court in his criminal case to resolve motions filed several years after this court affirmed the judgment and sentence on appeal. Callaghan v. State, 939 So.2d 100 (Fla. 2d DCA 2006) (table decision). We dismiss the appeal because the *73 order is a nonfinal order not entitled to review.

Our record is very sparse. However, it appears that on May 27, 2008, Mr. Callaghan filed a “Motion for Judge to Act as Seventh Juror” and a motion for new trial. On October 27, 2008, the trial judge denied the unusual motion asking him to sit as a seventh juror and dismissed the motion for new trial as untimely but without prejudice to Mr. Callaghan’s right to file a proper postconviction motion within thirty days.

Although it is not in our record, within thirty days, Mr. Callaghan apparently filed an amended motion for new trial. The trial court concluded that its earlier order may have confused Mr. Callaghan, so it once again dismissed the motion without prejudice, giving Mr. Callaghan another thirty days in which to file a proper post-conviction motion. Mr. Callaghan appealed that order of dismissal to this court.

Both of these rulings seem appropriate and reflect a judge attempting to be quite patient with a pro se litigant while complying fully with Spera v. State, 971 So.2d 754 (Fla.2007). Unfortunately, both orders contain language informing the defendant that he “has thirty (30) days from the date of this Order to file an appeal.” That advice was legally incorrect. Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008). Both the earlier order and this order on appeal are nonfinal postconviction orders that cannot be challenged until the trial court enters a final order on postconviction.

Dismissed.

KELLY and LaROSE, JJ„ Concur.

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ALTENBERND, Judge.

Daniel Callaghan appeals an order entered by the trial court in his criminal case to resolve motions filed several years after this court affirmed the judgment and sentence on appeal. Callaghan v. State, 939 So.2d 100 (Fla. 2d DCA 2006) (table decision). We dismiss the appeal because the *73 order is a nonfinal order not entitled to review.

Our record is very sparse. However, it appears that on May 27, 2008, Mr. Callaghan filed a “Motion for Judge to Act as Seventh Juror” and a motion for new trial. On October 27, 2008, the trial judge denied the unusual motion asking him to sit as a seventh juror and dismissed the motion for new trial as untimely but without prejudice to Mr. Callaghan’s right to file a proper postconviction motion within thirty days.

Although it is not in our record, within thirty days, Mr. Callaghan apparently filed an amended motion for new trial. The trial court concluded that its earlier order may have confused Mr. Callaghan, so it once again dismissed the motion without prejudice, giving Mr. Callaghan another thirty days in which to file a proper post-conviction motion. Mr. Callaghan appealed that order of dismissal to this court.

Both of these rulings seem appropriate and reflect a judge attempting to be quite patient with a pro se litigant while complying fully with Spera v. State, 971 So.2d 754 (Fla.2007). Unfortunately, both orders contain language informing the defendant that he “has thirty (30) days from the date of this Order to file an appeal.” That advice was legally incorrect. Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008). Both the earlier order and this order on appeal are nonfinal postconviction orders that cannot be challenged until the trial court enters a final order on postconviction.

Dismissed.

KELLY and LaROSE, JJ„ Concur.

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Bluebook (online)

32 So. 3d 72, 2009 Fla. App. LEXIS 9596, 2009 WL 2032361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callaghan-v-state-fladistctapp-2009.

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