ROBERTO RODRIGUEZ, APPELLANT,
v.
FLORIDA PAROLE COMMISSION, JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEES
PER CURIAM.
We conclude that the notice of appeal herein was not timely filed and, therefore, dismiss the appeal for lack of jurisdiction. The post-judgment motion filed by counsel was not timely, and therefore did not suspend rendition of the circuit court’s final order. See Fire & Casualty Ins. Co. of Conn. v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002). Because appellant was represented by counsel, the pro se “Motion for Relief from Judgment” was a legal nullity. See Marsh v. State, 919 So. 2d 540 (Fla. 3d DCA 2005); Booker v. State, 807 So. 2d 800 (Fla. 1st DCA 2002). As such, the pro se motion likewise did not postpone rendition of the trial court’s final order. APPEAL DISMISSED.
KAHN, and LEWIS, JJ., concur. BENTON, J., DISSENTS WITH OPINION.
BENTON, J.,
dissenting.
I would deem counsel’s motion for rehearing timely, treating it as an adoption of appellant’s clearly timely pro se motion for relief from judgment, which was in the nature of a motion for rehearing. The trial court had acted on neither motion when the notice of appeal was filed, so the previously entered order denying extraordinary relief (to which the motions were addressed) was, in my view, “rendered by the filing of the notice of appeal.” Fla. RApp. P. 9.020(h)(3).
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Michel v. State, 989 So. 2d 679 (Fla. 4th DCA 2008)…ter of law, whether the force used by the defendant was deadly or non-deadly, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Mathis v. State, 973 So. 2d 1153 (Fla. 1st DCA 2006), rev. denied, 954 So. 2d 1156 (Fla.2007); see also Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006). A deadly weapon, such as a knife, can be used without deadly force. DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA 1998) (…
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Cruz v. State, 971 So. 2d 178 (Fla. 5th DCA 2007)…d by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Id.; see also Mathis v. State, 973 So. 2d 1153, 2006 WL 3017251 (Fla. 1st DCA Oct. 25, 2006), rev. denied, 954 So. 2d 1156 (Fla.2007); Mathews v. State, 799 So. 2d 265 (Fla. 1st DCA 2001). Weighing the evidence is the sole prerogative of the jury and the trial court should decide whether to give…
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Cliff Berry, Inc. v. State, 116 So. 3d 394 (Fla. 3d DCA 2012)…lief). In the following cases relied on by the majority, failure to instruct the jury regarding his theory of defense was found to be error, but in each case the defendant testified and offered evidence as to his theory of defense. Mathis v. State, 973 So. 2d 1153, 1157 (Fla. 1st DCA 2006) (finding that a self-defense instruction was required based on facts including the defendant’s testimony that the victim was the aggressor and he was simply defending himself); Chavers v. State, 901 So. 2d 409, 411 (Fla. 1s…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thiel C. Frierson v. State, 810 So. 2d 988 (Fla. 1st DCA 2002)
- Marsh v. State, 919 So. 2d 540 (Fla. 3d DCA 2005)
- Simmons v. State, 807 So. 2d 800 (Fla. 1st DCA 2002)