Valentin v. State

District Court of Appeal of Florida

Valentin v. State

873 So. 2d 562, 2004 Fla. App. LEXIS 7072, 2004 WL 1124970

CourtDistrict Court of Appeal of Florida

DecidedMay 21, 2004

DocketNo. 5D04-380

StatusPublished

This text of 873 So. 2d 562 (Valentin 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

Valentin v. State, 873 So. 2d 562, 2004 Fla. App. LEXIS 7072, 2004 WL 1124970 (Fla. Ct. App. 2004).

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Opinion

ON MOTION FOR REHEARING AND/OR MOTION TO REINSTATE BELATED APPEAL

SHARP, W., J.

Valentin files a motion for rehearing after this court dismissed his appeal from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. , On the face of the pleading it appeared Valentin’s appeal was untimely because the order sought to be appealed contained a certificate of service on Valentin’s counsel dated June 11, 2001. The notice of appeal was filed on January 13, 2004, some two years and six months late.

This court issued a show cause order to Valentin to show why his appeal should not be dismissed. He did not respond. We dismissed the appeal. However, his motion for rehearing recites under oath that Valentin did not receive the show cause order in time to make a response because he was transferred from prison in Sumter County, to the Orange County jail and this mail took a circuitous route to Tampa before arriving in Orange County. Valentin further alleges under oath that he did not receive a copy of the circuit court’s denial of his rule 3.850 motion until December of 2003, although he does not further specify those facts and circumstances nor why service on his attorney was not sufficient to constitute service on him.

We deny Valentin’s motion for rehearing or motion to reinstate but clarify that dismissal of the cause was without prejudice to Valentin to seek the appropriate remedy in such a case and circumstances — the filing of a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c) — which conforms to all of the requirements of that rule.

DENIED without prejudice.

PETERSON and PLEUS, JJ., concur.

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ON MOTION FOR REHEARING AND/OR MOTION TO REINSTATE BELATED APPEAL

SHARP, W., J.

Valentin files a motion for rehearing after this court dismissed his appeal from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. , On the face of the pleading it appeared Valentin’s appeal was untimely because the order sought to be appealed contained a certificate of service on Valentin’s counsel dated June 11, 2001. The notice of appeal was filed on January 13, 2004, some two years and six months late.

This court issued a show cause order to Valentin to show why his appeal should not be dismissed. He did not respond. We dismissed the appeal. However, his motion for rehearing recites under oath that Valentin did not receive the show cause order in time to make a response because he was transferred from prison in Sumter County, to the Orange County jail and this mail took a circuitous route to Tampa before arriving in Orange County. Valentin further alleges under oath that he did not receive a copy of the circuit court’s denial of his rule 3.850 motion until December of 2003, although he does not further specify those facts and circumstances nor why service on his attorney was not sufficient to constitute service on him.

We deny Valentin’s motion for rehearing or motion to reinstate but clarify that dismissal of the cause was without prejudice to Valentin to seek the appropriate remedy in such a case and circumstances — the filing of a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c) — which conforms to all of the requirements of that rule.

DENIED without prejudice.

PETERSON and PLEUS, JJ., concur.

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Bluebook (online)

873 So. 2d 562, 2004 Fla. App. LEXIS 7072, 2004 WL 1124970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentin-v-state-fladistctapp-2004.