State Ex Rel. Shevin v. District Court of Appeal

316 So. 2d 50 (1975)

STATE of Florida ex rel. Robert L. SHEVIN, Attorney General, Relator, v. The DISTRICT COURT OF APPEAL of Florida, THIRD DISTRICT, et al., Respondents.

No. 46585.

Supreme Court of Florida.

July 17, 1975.

*51 Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for relator.

Phillip A. Hubbart, Public Defender and Kurt Marmar, Asst. Public Defender, for respondents.

PER CURIAM.

Respondent was tried and convicted of robbery and received a sentence of life imprisonment. On January 14, 1974, the trial court denied his motion to vacate filed under Fla.R.Cr.P. 3.850. On February 20, 1974, he filed his notice of appeal with the District Court of Appeal, Third District. The State moved to dismiss contending that notice of appeal was not timely filed. Respondent conceded that his appeal was not timely filed, but alleged that the untimeliness was due to State action since he was not advised of his right to appeal the denial of his Rule 3.850 Motion.

The Clerk of the Eleventh Judicial Circuit Court through affidavit informed the Third District that the respondent had been informed of the denial of his Rule 3.850 Motion but not of his right to appeal same to the appropriate District Court of Appeal. The Third District denied the motion to dismiss.

The relator then filed a suggestion for Writ of Prohibition with this Court and sought issuance of a rule nisi directing the Third District to show cause why it should not be prohibited from continuing to exercise jurisdiction over the cause. We issued the rule nisi and a return has been properly filed.

The principal issue to be decided is whether a prisoner who has filed a motion under Rule 3.850 is entitled to be notified of both the right to appeal a denial of the requested relief and of the accompanying time limitation.

O'Malley v. Wainwright, 237 So. 2d 813 (Fla.App.2d 1970), construed this Court's decision in Baggett v. Wainwright, 229 So. 2d 239 (Fla. 1969), to hold that a movant under Rule 3.850 must be notified of his right to appeal any denial of the requested relief. We agree.

Rule 3.850 grants a right of appeal to a movant who has received an adverse ruling. This right is rendered useless if the movant is not informed of its existence and of the time limitation governing its utilization.

Consequently, relator's suggestion for Writ of Prohibition is discharged. Jurisdiction of the cause is thus retained by the District Court of Appeal, Third District, which has correctly treated the appeal as one timely filed.

It is so ordered.

ADKINS, C.J., BOYD, McCAIN and ENGLAND, JJ., and BOYER, District Judge, concur.

OVERTON, J., concurs in result only.