Opinion
Case No. 5D04-380.
Opinion filed May 21, 2004.
3.850 Appeal from the Circuit Court for Orange County, Dorothy J. Russell, Judge.
Jose R. Valentin, Bushnell, pro se.
No Appearance for Appellee.
ON MOTION FOR REHEARING AND/OR MOTION TO REINSTATE BELATED APPEAL
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.