Zachary Linville v. State

251 So. 3d 352

• Court: District Court of Appeal of Florida
• Decided: August 20, 2018
• Docket: 5D18-1975
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ZACHARY LINVILLE,

Petitioner,

v. Case No. 5D18-1975

STATE OF FLORIDA,

Respondent.

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Opinion filed August 24, 2018

Petition for Belated Appeal, A Case of Original Jurisdiction.

Zachary Linville, Wewahitchka, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.

EDWARDS, J.

The petition for belated appeal is denied. The record before this Court shows that

Petitioner, Zachary Linville, failed to comply with Florida Rule of Appellate Procedure

9.110(b). That rule requires the notice of appeal to be filed with the clerk of the court

whose order or judgment is being appealed within thirty days of rendition. If a pro se

inmate relies upon the institution in which the inmate is incarcerated to mail the inmate’s

notice of appeal, the inmate must clearly state in writing that the original notice of appeal is to be mailed to and filed with the clerk of the court whose order or judgment is being

appealed, and should include the name and address of that clerk of the court on the

certificate of service.

Florida Rule of Appellate Procedure 9.420(a)(2) governs the procedure for a notice

of appeal that is addressed to the clerk of the lower court and placed in the hands of the

inmate’s institution for mailing. However, filing of the notice of appeal does not occur

when an inmate, as Petitioner did here, places in the hands of the institution a notice of

appeal with a certificate of service that lists the State Attorney and/or the Attorney

General, but which does not affirmatively direct mailing of the original notice of appeal to

the clerk of the lower court.1

In this case, the time for filing the original notice of appeal with the clerk of the

lower court has expired; therefore, this Court has no jurisdiction to entertain Petitioner’s

appeal, and there is no legal basis for granting Petitioner’s request for a belated appeal.

PETITION DENIED.

SAWAYA and TORPY, JJ., concur.

1The Appellate Rules Committee should consider whether it would be desirable to amend rule 9.420(d)(1) and/or Form 9.900(a) by including language in a model pro se inmate certificate of service for notices of appeal, to the effect that “the original notice of appeal is to be mailed to and filed with the Clerk of the Circuit/County Court for ____ County” to clarify the requirement that the inmate affirmatively direct that the original notice of appeal is to be mailed to the clerk of the lower tribunal for filing.