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Ashley v. Moore

District Court of Appeal of Florida, First District
Oct 20, 1999
742 So. 2d 533 (Fla. Dist. Ct. App. 1999)

Summary

rejecting argument for additional time to serve motion for rehearing when underlying order is served by mail

Summary of this case from Pressley v. McNeil

Opinion

No. 98-3009.

Opinion filed October 20, 1999.

Petition for Writ of Certiorari — Original Jurisdiction.

Adolphus S. Ashley, pro se, Petitioner.

Robert A. Butterworth, Attorney General, and Caryl S. Kilinski, Assistant Attorney General, Tallahassee, for State of Florida.

No appearance for respondent Michael W. Moore, Secretary, Florida Department of Corrections, Tallahassee.


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 review ed. Fla.R.App.P. 9.020(h); 9.100(c)(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.


Summaries of

Ashley v. Moore

District Court of Appeal of Florida, First District
Oct 20, 1999
742 So. 2d 533 (Fla. Dist. Ct. App. 1999)

rejecting argument for additional time to serve motion for rehearing when underlying order is served by mail

Summary of this case from Pressley v. McNeil

rejecting argument for additional time to serve motion for rehearing when underlying order is served by mail

Summary of this case from Fenelon v. McNeil
Case details for

Ashley v. Moore

Case Details

Full title:ADOLPHUS S. ASHLEY, Petitioner, v. MICHAEL W. MOORE, Secretary, Florida…

Court:District Court of Appeal of Florida, First District

Date published: Oct 20, 1999

Citations

742 So. 2d 533 (Fla. Dist. Ct. App. 1999)

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