Cheshire v. State

District Court of Appeal of Florida

Cheshire v. State

848 So. 2d 1197, 2003 Fla. App. LEXIS 9469, 2003 WL 21471733

CourtDistrict Court of Appeal of Florida

DecidedJune 27, 2003

DocketNo. 5D03-620

StatusPublished

This text of 848 So. 2d 1197 (Cheshire 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.

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Cheshire v. State, 848 So. 2d 1197, 2003 Fla. App. LEXIS 9469, 2003 WL 21471733 (Fla. Ct. App. 2003).

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Opinion

THOMPSON, C.J.

Steven Cheshire appeals the summary denial of his motion for post conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We dismiss the appeal for lack of jurisdiction.

The order denying Cheshire’s Rule 3.853 motion was rendered on 21 November 2002. Cheshire served his motion for rehearing on 5 December 2002. The motion for rehearing was denied by order rendered on 17 December 2002, but Cheshire did not serve his notice of appeal until 7 February 2003, as evidenced by his certificate of service. Cheshire’s notice of appeal was filed more than thirty days after the order denying rehearing was rendered and was untimely because Cheshire had filed a second, unauthorized motion for rehearing, which was denied as successive. Because the notice of appeal was untimely, this court issued a show cause order. In response thereto, Cheshire alleged that he never received a copy of the order denying his first motion for rehearing. However, that order indicated that a copy was sent to Cheshire at his address of record, and Cheshire did not proffer as evidence the incoming mail log to show that legal mail was not delivered to his address following rendition of the order denying his first motion for rehearing. We therefore must dismiss the appeal for lack of jurisdiction without prejudice to Cheshire to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Jones v. State, 838 So.2d 659 n. 1 (Fla. 5th DCA 2003).

DISMISSED.

PETERSON and MONACO, JJ., concur.

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THOMPSON, C.J.

Steven Cheshire appeals the summary denial of his motion for post conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We dismiss the appeal for lack of jurisdiction.

The order denying Cheshire’s Rule 3.853 motion was rendered on 21 November 2002. Cheshire served his motion for rehearing on 5 December 2002. The motion for rehearing was denied by order rendered on 17 December 2002, but Cheshire did not serve his notice of appeal until 7 February 2003, as evidenced by his certificate of service. Cheshire’s notice of appeal was filed more than thirty days after the order denying rehearing was rendered and was untimely because Cheshire had filed a second, unauthorized motion for rehearing, which was denied as successive. Because the notice of appeal was untimely, this court issued a show cause order. In response thereto, Cheshire alleged that he never received a copy of the order denying his first motion for rehearing. However, that order indicated that a copy was sent to Cheshire at his address of record, and Cheshire did not proffer as evidence the incoming mail log to show that legal mail was not delivered to his address following rendition of the order denying his first motion for rehearing. We therefore must dismiss the appeal for lack of jurisdiction without prejudice to Cheshire to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Jones v. State, 838 So.2d 659 n. 1 (Fla. 5th DCA 2003).

DISMISSED.

PETERSON and MONACO, JJ., concur.

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848 So. 2d 1197, 2003 Fla. App. LEXIS 9469, 2003 WL 21471733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheshire-v-state-fladistctapp-2003.

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