Alterisio v. State

Full title: MICHAEL ALTERISIO, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Dec 12, 1997

704 So. 2d 164 (Fla. Dist. Ct. App. 1997)

Opinion

Case No. 97-2706

Opinion filed December 12, 1997 Rehearing Denied January 22, 1998

Appeal from the Circuit Court for Seminole County, Thomas Freeman, Judge.

Michael Alterisio, Lake City, pro se.

No Appearance for Appellee.

ANTOON, J.

Michael Alterisio, the defendant, appeals the denial of his motion for postconviction relief which was filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We dismiss this appeal because the notice of appeal was filed more than thirty days after rendition of the trial court's order.

The issue presented in this case is whether the defendant tolled the thirty-day period for filing an appeal by filing a motion for rehearing. The trial court's order denying relief contains a certificate showing June 13, 1997 as the date of service. The defendant filed his motion for rehearing on July 7, 1997. The motion was denied on September 9, 1997. Pursuant to rule 3.850(g), a motion for rehearing must be filed within fifteen days of the date of service of an order denying postconviction relief. See Fla. R. Crim. P. 3.850(g). If the motion is timely filed, the time for appeal is tolled. See Fla. R. App. P. 9.020(h). The defendant's motion for rehearing was not notarized and did not contain a certificate of service. Consequently, this court cannot determine whether the defendant was entitled to the benefit of the mailbox rule established in Haag v. State, 591 So.2d 614 (Fla. 1992) (motion is considered filed when placed in the hands of prison officials.)

This court issued an order to show cause to the defendant why this appeal should not be dismissed as untimely. In his unsworn response, the defendant failed to tender any evidence establishing when his motion for rehearing was given to prison officials. Rather he merely asserted that delivery of the motion to prison officials was timely. Thus, the defendant has failed to meet his burden of proving that the motion for rehearing was timely presented to prison officials. See Haag v. State, 591 So.2d at 617, n.3.

APPEAL DISMISSED.

GRIFFIN, C.J., and GOSHORN, J., concur.