Opinion
Case No. 5D18-2484
03-08-2019
JERMAINE GREENE, Appellant, v. STATE OF FLORIDA, Appellee.
Jermaine Greene, Malone, pro se. No Appearance for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED 3.800 Appeal from the Circuit Court for Lake County, Don F. Briggs, Judge. Jermaine Greene, Malone, pro se. No Appearance for Appellee. WALLIS, J.
Appellant appeals the trial court's order denying his pro se Florida Rule of Criminal Procedure 3.800(a) motion. Appellant filed his Rule 3.800(a) motion to correct an illegal sentence in open court on June 20, 2018. The trial court initially denied Appellant's motion on June 28, 2018. Appellant mailed his notice of appeal with a certificate of service dated July 18, 2018. The notice of appeal did not have a mailing stamp. On July 19, 2018, the trial court withdrew its June 28 order and struck Appellant's pro se filings as nullities because Appellant was represented by counsel when he filed those motions.
We vacate the trial court's July 19 order because the trial court lacked jurisdiction. Because Appellant was incarcerated, his notice of appeal is deemed filed when he hands the same to prison officials for mailing. See Haag v. State, 591 So. 2d 614, 617 (Fla. 1992) (citing Houston v. Lack, 487 U.S. 266, 271-76 (1988)). Although normally the date of mailing is presumptively established by a stamp recording the date a document is handed to prison officials, Appellant's notice did not have such a mark. Due to the absence of the jail's mailing stamp, the presumptive date is that shown in the certificate of service. See Linville v. State, 260 So. 3d 440, 442 (Fla. 5th DCA 2018) (citing Fla. R. App. P. 9.420(a)(2)(B); Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000)). The date in the certificate of service on Appellant's notice of appeal is July 18. Thus, his notice of appeal is deemed filed on that date. See id. Once Appellant's notice of appeal was filed, the trial court was divested of jurisdiction. See Meintzer v. State, 943 So. 2d 966, 967 (Fla. 5th DCA 2006) (holding a trial court is divested of jurisdiction upon the filing of a notice of appeal). The trial court's withdrawing of the order under review and striking of the underlying motion was done without jurisdiction. We therefore vacate the July 19 order for lack of jurisdiction.
The mailbox rule of Haag has no application to litigants represented by counsel. See Joseph v. State, 157 So. 3d 546, 547-48 (Fla. 1st DCA 2015). The lower court did rule that at the time of the July 19 order Appellant was represented by counsel. However, the record in this case contains no supporting documents showing that, and the records in Appellant's other appeal do not elaborate on the scope of representation. This leaves review impeded. As a result, the mailbox rule should still apply to Appellant.
In addition, we note that Appellant has another appeal pending before this Court (Case Number 5D18-2382) that has the same circuit court case number as the case on appeal here. The record in 5D18-2382 reflects that counsel filed a notice of appearance in February 2018 and a motion to withdraw in July 2018. There is no clear indication in the record in either case of the scope of counsel's representation in this appeal. Therefore, it is not clear whether the instant pro se Rule 3.800(a) motion was filed while counsel represented Appellant. See Baker v. State, 210 So. 3d 140, 141 (Fla. 2d DCA 2016) (holding that appointment of counsel in criminal proceeding did not extend to simultaneous postconviction proceeding, meaning that defendant's pro se motions were not nullities). Because the record on appeal does not clarify this factual question, it should be resolved by the trial court. Accordingly, we reverse the June 28 order on appeal and remand for the trial court to determine the scope of counsel's representation. See id.; see also DiSanto v. State, 190 So. 3d 694, 694 (Fla. 5th DCA 2016) (requiring trial court to attach records explaining why Rule 3.800(a) claim lacked merit); Makoski v. State, 984 So. 2d 674, 674 (Fla. 5th DCA 2008) (reversing because record contained "no record attachments or rationale for the decision that will allow meaningful review in this Court") On remand, if the lower court still suspects that Appellant's Rule 3.800(a) motion was a nullity, then it should attach, to any new order striking that motion, records demonstrating the scope of counsel's representation. See Baker, 210 So. 3d at 141; see also DiSanto, 190 So. 3d at 694; Makoski, 984 So. 2d at 674.
Because this is a Rule 3.800(a) case, normally the burden would be on Appellant to identify records that demonstrate an entitlement to relief on their face. Fla. R. Crim. P. 3.800(a)(1). However, this rationale ceases to apply when the court denies relief for a procedural reason like the one identified above. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal "unless the record shows conclusively that the appellant is entitled to no relief"). --------
ORDER VACATED. REVERSED AND REMANDED with Instructions. LAMBERT and HARRIS, JJ., concur.