Opinion
No. 91-4.
February 28, 1991.
Appeal from the Circuit Court for Brevard County; John Dean Moxley, Judge.
Jimmie Lee Forehand, pro se.
No appearance for appellee.
Defendant Jimmie Lee Forehand filed a Notice of Appeal on December 26, 1990 seeking review of an order rendered November 19, 1990 denying his Rule 3.850 motion. No timely motion for rehearing was filed which would toll the time to appeal. See Fla.R.App.P. 9.020(g). Since the notice of appeal was not filed within thirty (30) days of rendition of the order to be reviewed, this court lacks jurisdiction. See, e.g., Fuller v. Wainwright, 238 So.2d 65 (Fla. 1970) (time to appeal motion for post-conviction relief expires when notice is not filed within thirty days of rendition); Pitts v. State, 225 So.2d 352 (Fla. 1st DCA 1969) (filing of notice of appeal is jurisdictional and court is without authority to exercise jurisdiction where notice of appeal of order denying post-conviction motion was not filed within thirty days of rendition and no timely motion for rehearing was filed). Accordingly, the appeal is dismissed. However, the dismissal is without prejudice to the filing of a petition for writ of habeas corpus for a belated appeal, if it can be shown that state action interfered with the defendant's right to appeal. See, e.g., Clifford v. State, 513 So.2d 772 (Fla. 2d DCA 1987).
APPEAL DISMISSED.
COBB and W. SHARP, JJ., concur.