GERALD KLEPAREK, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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PER CURIAM.
We grant, in part, petitioner’s motion for rehearing and issue the following opinion.
On January 12, 2007, pursuant to the Jimmy Ryce Act, the trial court found petitioner Gerald Kleparek to be a sexually violent predator and committed Kleparek to the Department of Children and Families. Kleparek notified trial counsel that he wished to appeal, and counsel attempted to effectuate a timely appeal. However, the notice of appeal was untimely stamped by the clerk’s office and was thus five days late. Kleparek filed a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). This court denied the petition on June 4, 2007 by order and Kleparek filed a timely motion for rehearing.
While Kleparek is not entitled to relief under rule 9.141(c) as the underlying Ryce proceedings are civil in nature and not criminal, Cartwright v. State, 859 So. 2d 526 (Fla. 1st DCA 2003), we find that the proper vehicle is instead a petition for writ of habeas corpus seeking belated review of the lower tribunal’s order. See In Interest of E.H., 609 So. 2d 1289 (Fla.1992) (finding petitioner’s remedy to seek belated appeal of an order terminating parental rights was through a petition for writ of habeas corpus). We therefore treat the instant petition for belated appeal as a petition for writ of habeas corpus and grant belated review of the lower court’s January 12, 2007 order designating Kleparek a sexually violent predator and committing him to the Department of Children and Families.
WARNER, KLEIN and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Commitment OF James R. MAY. James R. May v. State, 975 So. 2d 579 (Fla. 2d DCA 2008)…n criminal cases. We ordered the parties to address the issue of whether this court has the authority to treat a petition for belated appeal of a Jimmy Ryce Act commitment order as a petition for habeas corpus. Mr. May, relying on Kleparek v. State, 964 So. 2d 225 (Fla. 4th DCA 2007), asserts that relief pursuant to a petition for writ of habeas corpus is appropriate. The State essentially agrees with Mr. May, contending that relief cannot be founded upon the authority of rule 9.141(c) but that Mr. May might…1 / 2
Authorities Cited
- In the Interest OF E.H., 609 So. 2d 1289 (Fla. 1992)
- Orange Cnty. v. Lewis, 859 So. 2d 526 (Fla. 5th DCA 2003)