Summary
holding that the court was without authority to grant a belated appeal in a civil matter, but noting that petitioner could seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540
Summary of this case from Cartwright v. StateOpinion
No. 99-0224
Opinion filed April 20, 1999.
An appeal from an order of the Circuit Court for Escambia County, Terry D. Terrell, Judge.
Leo C. Hollingsworth, Jr., pro se appellant.
No appearance for appellees.
Leo C. Hollingsworth appeals a December 3, 1998, order of the circuit court denying his petition for writ of mandamus, and inasmuch as his notice of appeal was not filed with the trial court until January, 11, 1999, he was directed to show cause why this appeal should not be dismissed as untimely. In response, Hollings worth forthrightly concedes that his notice of appeal was not placed in the hands of prison officials for mailing until January 7, 1999. He alleges, however, that his inability to timely mail the notice of appeal resulted from the fact that while housed in his institution's segregation unit, he was unable to obtain necessary postage to mail the notice of appeal despite his repeated efforts to do so. On this basis, Hollingsworth requests that his appeal be permitted to proceed.
Because the proceedings below were civil in nature, this court lacks the authority to grant a belated appeal. Thus, in light of appellant's concession that his notice of appeal was untimely, we dismiss the appeal for lack of jurisdiction. However, given the matters alleged in his response, we do so without prejudice to Hollingsworth's right to seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540, requesting that the original order be vacated and a new order entered, such that the right to seek appellate review may be preserved. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983). We note for appellant's benefit that in the event such relief is granted by the circuit court, review of the new order should be undertaken by timely petition for writ of certiorari, rather than by appeal. See Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998).
BARFIELD, C.J., VAN NORTWICK and PADOVANO, JJ., concur.