McKenzie v. State

238 So. 3d 404

• Court: District Court of Appeal of Florida
• Decided: January 24, 2018
• Docket: 17-2249
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 24, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-2249 Lower Tribunal No. 00-14941A ________________

Ryan C. McKenzie, Petitioner,

vs.

The State of Florida, Respondent.

A Case of Original Jurisdiction – Habeas Corpus

Ryan C. McKenzie, in proper person.

Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for respondent.

Before LAGOA, EMAS, and SCALES, JJ.

LAGOA, J. Petitioner, Ryan C. McKenzie (“McKenzie”), seeks a belated appeal of an

order denying his second motion for post-conviction relief filed pursuant to Florida

Rule of Civil Procedure 3.850. We grant the petition for a belated appeal.

On August 16, 2017, the trial court rendered its order denying McKenzie’s

motion for post-conviction relief, and the Miami-Dade Clerk of Court certified that

a copy of the order was furnished by mail to McKenzie on August 18, 2017. In his

sworn petition, McKenzie asserts that he is entitled to a belated appeal because he

did not receive a copy of the order denying his motion until after the time for

taking an appeal had expired. In addition to his sworn statement, McKenzie filed

his prison mailroom log request regarding legal mail received during the relevant

time period. McKenzie further filed a copy of the prison’s mail log record

received from a prison official where he is serving his sentence.

We directed the State to show cause why McKenzie should not be granted a

belated appeal. In its response, the State contends that because the mail log

provided by McKenzie is incomplete, it is possible that McKenzie received other

legal mail, including the copy of the order, on other days between August 18,

2017, and September 25, 2017. However, a review of the prison mail log indicates

that on September 25, 2017, McKenzie received legal mail from the Miami-Dade

Clerk of Court, supporting McKenzie’s allegation.

2 Accordingly, we find that McKenzie has established the right to obtain a

belated appeal from the August 16, 2017, order denying his motion for post-

conviction relief. See Brigham v. State, 769 So. 2d 1100, 1101 (Fla. 1st DCA

2000); Funchess v. Moore, 766 So. 2d 348, 348-49 (Fla. 1st DCA 2000).

Petition granted.