Higgs v. State

601 So. 2d 319, 1992 Fla. App. LEXIS 7952, 1992 WL 171379

Opinion

COBB, Judge.

In this habeas corpus proceeding we appointed the trial judge as commissioner to determine whether under the mailbox rule¹ petitioner timely appealed an order summarily denying his 3.850 motion for post-conviction relief. See Higgs v. State, 599 So.2d 274 (Fla. 5th DCA 1992). The trial court found that petitioner’s 3.850 motion was denied August 1, 1990, and his timely motion for rehearing was denied August 20, 1990. The court further found' that petitioner’s notice of appeal was postmarked September 19, 1990 and filed in the clerk’s office September 26, 1990. Applying the mailbox rule, the recorded date on the envelope indicates that petitioner timely placed the notice of appeal in the hands of the prison officials for mailing within the applicable thirty day period. See Fla. R.Crim.P. 3.850. Based on these findings, we treat the instant petition as a petition for writ of mandamus and direct the circuit court clerk of the fifth judicial circuit to transmit to this court the record in the 3.850 appeal as required by Florida Rule of Appellate Procedure 9.140(g).

PETITION GRANTED.

GOSHORN, C.J. and GRIFFIN, J., concur.

1 . See Haag v. State, 591 So.2d 614 (Fla.1992).