Opinion
Case No. SC06-61.
June 1, 2006.
Lower Tribunal No. 4D05-2772.
As petitioner is asking the Court to direct the Fourth District Court of Appeal to reinstate his appeal, his petition to invoke the Court's all writs jurisdiction is being considered as a petition for writ of mandamus. A petition for writ of mandamus is the proper vehicle to seek reinstatement of an improperly dismissed appeal. See Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, 511 So. 2d 293, 294 (Fla. 1987).
Florida Rule of Appellate Procedure 9.140(b)(3) requires a criminal defendant to file a notice of appeal with the clerk of the lower tribunal within thirty days after the rendition of a final judgment. Respondent does not state when the order denying his motion to vacate, set aside, or correct his sentence filed pursuant to Florida Rule of Criminal Procedure 3.850 was rendered. He does not state when he filed his notice of appeal. Without these two facts, it is impossible to determine whether his appeal was timely.
Petitioner has failed to demonstrate a clear legal right to the relief requested. Consequently, the petition for writ of mandamus is denied. See Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000) (holding that in order to be entitled to a writ of mandamus, the petitioner must show that he has a clear legal right to performance of the requested act, that the respondent has an indisputable legal duty to perform that act, and that no other adequate remedy exists).
WELLS, ANSTEAD, LEWIS, QUINCE and BELL, JJ., concur.