ADOLPHUS S. ASHLEY, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS
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Adolphus Ashley challenged the trial court's denial of his habeas corpus petition by appealing to the appellate court, which converted the appeal to a certiorari petition. The court dismissed the petition for lack of jurisdiction because Ashley failed to timely serve his motion for rehearing within the required timeframe, and his arguments for equitable tolling lacked merit.
The court lacked jurisdiction because the motion for rehearing was not timely served and therefore did not postpone rendition of the order. The five-day extension Ashley sought does not apply in this context, and claims of interference by prison officials must be raised by motion to the trial court for relief from judgment, not by appellate proceeding.
[1] A motion for rehearing must be timely served to postpone rendition of an order.
[2] Jurisdiction to review an order by certiorari must be invoked within 30 days of the order's rendition.
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Join FLexlaw to unlock all legal intelligence“This court's certiorari jurisdiction, like appellate jurisdiction, must be invoked within 30 days of rendition of the order to be reviewed.”
Establishes the jurisdictional deadline for both certiorari and appellate review
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Join FLexlaw to unlock all legal intelligenceAshley filed a habeas corpus petition in circuit court, which was denied. He attempted to appeal the denial but failed to timely serve a motion for re…
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PER CURIAM.
Adolphus S. Ashley appealed an order of the -circuit court which denied a petition for writ of habeas corpus. Subsequently, this court converted the appeal to a petition for writ of certiorari. Fla. R.App. P. 9.040(c); Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla.1998).
On this court’s own motion, Ashley was directed to show cause why this proceeding should not be dismissed for lack of jurisdiction. A review of the file showed that a motion for rehearing was not timely served and it therefore did not postpone rendition of the order. Luttrell v. Florida Parole Comm’n, 578 So. 2d 11 (Fla. 1st DCA 1991). This court’s certiorari jurisdiction, like appellate jurisdiction, must be invoked within 30 days of rendition of the order to be reviewed. Fla. R.App. P. 9.020(h); 9.100(e)(1); 9.110(b). In response, petitioner argues that he should be entitled to an additional five days in computing the time for service of his motion for rehearing in accordance with Fla. R. Civ. P. 1.090(e). This argument is without merit. Grabarnick v. Florida Homeowners Association, 419 So. 2d 1065 (Fla.1982). He also contends that prison officials frustrated his ability to timely prepare and serve his motion for rehearing. We find that the proper avenue to present such a claim is by motion to the trial court for relief from judgment. Cf. Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983) (1.540(b) motion is remedy where party claims order was not received in time to appeal). Accordingly, we dismiss this proceeding for lack of jurisdiction without prejudice to petitioner’s right to move the trial court for relief from judgment.
DISMISSED.
ERVIN, MINER and KAHN, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)
- Goodman v. State, 578 So. 2d 11 (Fla. 1st DCA 1991)
- Grabarnick v. Fla. Homeowners Ass'n OF N. Broward, Inc., 419 So. 2d 1065 (Fla. 1982)