Electronical]v Filed 06/]2/20l3 J I:20:09 AM ET

RECEIVED.6/]2/20l3 J I:4R:4i Thomas D. Hall. Cicrk. Supreme Court

IN TH E SUPREME COURT OF FLORIDA

CASE NO. SCI 2-2318

LAMONT TAYLOR,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON DISCRETIONARY REVIEW FROMTHE FIFTH DISTRICT COURT OF APPEAL

INITIAL BRI EF OF PETITIONE R

.lohn It llamiltonFlorida Bar No. 0774103jhamilton@ foley.comFOLEY & LARDNER LLPI 11 N. Orange Ave., Suite 1RDOPost Office l'iox 2193Orlando, Floridu32F|U2-2193Teleplione: (407) 423-7656Facsimile: (407)648-1743

Attomevs for Petitioner

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES........................................................................................iii

PRELIMINARY STATEMENT....................................................................................1

STATEMENT OF THE CASE......................................................................................1

STATEMENT OF FACTS.............................................................................................2

SUMMARY OF ARGUMENT...................................................................................12

ARGUMENT................................................................................................................15

A. THIS COURT HAS JURISDICTION TO REVIEW THISCASE.......................................................................................................15

1. Certified Conflict Exists...............................................................15

2. The Nature of the Certified Conflict............................................15

B. THE FIFTH DISTRICT ERRED AS A MATTER OF LAWIN HOLDING THAT THE ORDER DISPOSING OFTAYLOR'S RULE 3.850 MOTION-GRANTING IT INPART AND DENYING IT IN PART-WAS NOT FINALOR APPEALABLE.................................................................................25

1. In Its Decision, the Fifth District Erroneously Failed toRecognize and Appreciate the Nature of ProceedingsUnder Rule 3.850..........................................................................26

2. The Fifth District's Decision is Inconsistent With thisCourt's Own Postconviction Jurisprudence......._...._..............32

3. The Fifth District's Decision Would Have DisastrousPolicy Implications for the State of Florida.................................33

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4. The Fifth District's Decision Would Create Bad AppellatePolicy Because of the Different Rules and ProceduresGoverning Appeals in Postconviction Proceedings andAppeals in Traditional Criminal Proceedings..............................35

C. TAYLOR IS INDEPENDENTLY ENTITLED TO RELIEFBECAUSE OF THE CIRCUIT COURT'S VIOLATION OFITS LEGAL DUTY TO ADVISE TAYLOR ACCURATELYOF HIS APPELLATE RIGHTS.............................................................39

1. The Trial Court's Alleged Error in Misinforming Taylor ofHis Appellate Rights Required the Fifth District to TreatTaylor's Appeal as Timely Filed..................................................39

2. In the Alternative, the Fifth District Should Have TreatedTaylor's Notice of Appeal as Premature......................................43

3. At the Very Least, the Fifth District Should Have ProvidedTaylor With the Opportunity to Demonstrate His Entitlementto a Belated Appeal......................................................................46

CONCLUSION.............................................................................................................48

CERTIFICATE OF SERVICE.....................................................................................49

CERTIFICATE OF COMPLIANCE...........................................................................49

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TABLE OF AUTHORITIESPage

CASES

Allen v. Butterworth,756 So. 2d 52 (Fla. 2000) ..................................................................................27

Amendments to Fla. R. App. P.,696 So. 2d 1103 (Fla. 1996) ..............................................................................34

Anglin v. State,970 So. 2d 903 (Fla. 5th DCA 2007) ................................................................18

Arizmendi v. State,894 So. 2d 309 (Fla. 2005) ..............................................................................46

Baudanza v. Baudanza,

78 So. 3d 656 (Fla. 4th DCA 2012) ..................................................................25

Cabrera v. State,623 So. 2d 825 (Fla. 2d DCA 1993) .................................................................32

Carriles v. State,102 So. 3d 704 (Fla. I st DCA 2012) ...............................................................25

Caulfield v. Cantele,837 So. 2d 371 (Fla. 2002) ................................................................................31

Cavanagh v. State,775 So. 2d 294 (Fla. 2d DCA 2000) .................................................................18

Cervino v. State,785 So. 2d 631 (Fla. 5th DCA 2001) ......._......_..19-20, 24-25, 28-29, 30, 43

Clearwater Fed. Savings & Loan Ass'n v. Sampson,336 So. 2d 78 (Fla. 1976) ..................................................................................31

Cooper v. State,667 So. 2d 932 (Fla. 2d DCA 1996) ......................................2, 15-19, 22-25, 28

4841-1249-2564.1

111

Coyle v. City ofFt. Lauderdale,785 So. 2d 1254 (Fla. 4th DCA 2001), reviewdenied, 807 So. 2d 653 (Fla. 2002) ...................................................................48

In re Crim. P., Rule No. 1,151 So. 2d 634 (Fla. 1963) ..............................................................................26

Darden v. State,588 So. 2d 275 (Fla. 2d DCA 1991) ...............................................................46

Davis v. State,768 So. 2d 1208 (Fla. 2d DCA 2010) .............................................................37

Denson v. Sang,

491 So. 2d 288 (Fla. 1st DCA 1986) .........................................................45-46

Department ofRevenue ex rel. Smith v. Sellers,47 So. 3d 916 (Fla. 1st DCA 2010) ..................................................................25

Diaz v. State,686 So. 2d 679 (Fla. 3d DCA 1996) .....................................................18-19, 25

Douglas v. California,372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) .....................................37

Florida League ofCities, Inc. v. State Admin. Comm'n,586 So. 2d 397 (Fla. 1st DCA 1991) ...............................................................44

Ford v. State,575 So. 2d 1225 (Fla. 1st DCA), reviewdenied, 581 So. 2d 1310 (Fla. 1991) ...............................................................37

Freeman v. State,94 So. 3d 591 (Fla. 2d DCA 2012) ........_.......................................................18

Gardner v. School Bd. of Glades County,73 So. 3d 314 (Fla. 2d DCA 2011) .................................................................44

Gordon v. State,688 So. 2d 995 (Fla. 5th DCA 1997) ....._.......................................................18

4841-1249-2564.1

lV

Gowins v. State,662 So. 2d 1348 (Fla. 5th DCA 1995) ........................................................19-20

Hastings v. Osius,104 So. 2d 21 (Fla. 1958) ...........................................................................30-31

Henry v. State Dep't ofAdmin.,

431 So. 2d 677 (Fla. 1st DCA 1983) ...............................................................44

Herring v. State,76 So. 3d 891 (Fla. 2011), cert. denied,-U.S, -, 133 S. Ct. 28, 183 L. Ed. 676 (2012) ............................................32

Holley v. State,859 So. 2d 568 (Fla. 5th DCA 2003) ..............................................................46

Jackson v. State,983 So. 2d 562 (Fla. 2008) ................................................................................29

Janelli v. Pagano,

492 So. 2d 796 (Fla. 2d DCA 1986) ...............................................................31

Johnson v. State,

961 So. 2d 195 (Fla. 2007), reviewdenied, 83 So. 3d 708 (Fla. 2012) .....................................................................29

Jones v. Florida Parole Comm'n,

48 So. 3d 704 (Fla. 2010) ............................................................................26-27

Jones v. State,

35 So. 3d 69 (Fla. 1st DCA 2010) ..............................................................22,29

Jordan v. State,32 So. 3d 727 (Fla. 1st DCA 2010) .................................._............................20

Jordan v. State,81 So. 3d 595 (Fla. 1st DCA 2012) .............................................................20-22

Landrv v. State,666 So. 2d 121 (Fla. 1995) _....................._...................................._.....41-43

4841-1249-2564.1

V

Larson & Larson, P.A. v. TSE Indus., Inc.,22 So. 3d 36 (Fla. 2009) ...................................................................................31

Latin Express Serv., Inc. v. State Dep't ofRevenue,

660 So. 2d 1059 (Fla. 1st DCA 1995) .......................................................45-46

Lee County Elec. Coop., Inc. v. Jacobs,

820 So. 2d 297 (Fla. 2002) ................................................................................25

Leger v. State,

818 So. 2d 697 (Fla. 5th DCA 2002) ................................................................18

Libertelli v. State,

755 So. 2d 122 (Fla. 2d DCA 2000) .................................................................18

Libertelli v. State,

775 So. 2d 339 (Fla. 2d DCA 2000) .................................................................18

Logan v. State,

846 So. 2d 472 (Fla. 2003) ..............................................................................38

Luna v. State,

781 So. 2d 1093 (Fla. 2d DCA 2001) ...............................................................18

Mann v. State,

937 So. 2d 722 (Fla. 3d DCA 2006), review denied,954 So. 2d 1156 (Fla.), cert. denied, 532 U.S. 883,128 S. Ct. 289, 169 L. Ed. 2d 138 (2007) .......................................................37

Martin v. State,

711 So. 2d 542 (Fla. 2d DCA 1998) .................................................................18

McCarta v. State,722 So. 2d 200 (Fla. 2d DCA 1998) .................................................................18

McDaniel v. Florida Keys Aqueduct Auth.,

699 So. 2d 843 (Fla. 3d DCA 1997) ...............................................................44

Melendez v. State,711 So. 2d 543 (Fla. 2d DCA 1998) ................._............................................18

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Melton v. State,56 So. 3d 868 (Fla. 1st DCA), reviewdenied, 72 So. 3d 747 (Fla. 201 1) ...................................................................37

Miranda v. Arizona,384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) .....................................4

Pesta v. Department ofCorrections,63 So. 3d 788 (Fla. 1st DCA 2011) ..................................................................25

Pippin v. State,616 So. 2d 1182 (Fla. 1st DCA 1993) .............................................................46

Prince v. State,40 So. 3d 11 (Fla. 4th DCA), causedismissed, 47 So. 3d 1290 (Fla. 2010) ............................................................37

Richardson v. State,546 So. 2d 1037 (Fla. 1989) ..............................................................................26

Rudel v. Rudel,38 Fla. L. Weekly D858 (Fla. 4th DCA Apr. 17, 2013) ..................................25

Saye v. Pieschacon,750 So. 2d 759 (Fla. 1st DCA 2000) ...............................................................31

Sheppard v. State,

391 So. 2d 346 (Fla. 5th DCA 1980) ..............................................................38

Sheppard v. State,17 So. 3d 275 (Fla. 2009) .................................................................................38

Short v. State,783 So. 2d 262 (Fla. 2d DCA 2001) .................................................................18

Slocum v. State,95 So. 3d 911 (Fla. 1st DCA 2012) ............................2, 15, 21-22, 24-25, 28-29

State ex rel. Shevin v. District Court ofAppeal,316 So. 2d 50 (Fla. 1975) .........................................................._...41-42, 46-48

4841-1249-2564.1

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State v. Creighton,469 So. 2d 735 (Fla. 1985) ................................................................................34

State v. Michael,530 So. 2d 929 (Fla. 1988) ................................................................................32

State v. Pettis,520 So. 2d 250 (Fla. 1988) ................................................................................34

State v. Rudolf821 So. 2d 385 (Fla. 2d DCA 2002) .................................................................29

State v. Rygwelski,899 So. 2d 498 (Fla. 2d DCA 2005) .................................................................34

State v. Weeks,166 So. 2d 892 (Fla. 1964) ...................................................................26-27, 37

State v. White,470 So. 2d 1377 (Fla. 1985) ........................................................................27-28

Sterman v. Florida State Univ. Bd. ofRegents,414 So. 2d 1102 (Fla. 1st DCA 1982) .............................................................44

Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .................................10

Taylor v. State,923 So. 2d 514 (Fla. 5th DCA 2006) ..................................................................3

Taylor v. State,56 So. 3d 785 (Fla. 5th DCA 2011) ...................................................._.............8

Taylor v. State,96 So. 3d 989 (Fla. 5th DCA 2012) ..................................1-2, I l-12, 15-16, 18,

23-25, 28, 30, 32, 46-478

United States v. Scott,437 U.S. 82, 98 S. Ct. 2187, 57 L Ed. 2d 65 (1978) .......................................34

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United States v. Wilson,420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975) ...................................34

Vaughn v. State,

888 So. 2d 679 (Fla. 3d DCA 2004) ...............................................................37

Wahlquist v. School Bd. ofLiberty County,423 So. 2d 471 (Fla. 1st DCA 1982) ...............................................................44

Wells v. State,

744 So. 2d 1007 (Fla. 2d DCA 1999) ...............................................................18

Wendler v. City ofSt. Augustine,

108 So. 3d 1141 (Fla. 5th DCA 2013) ........................................................25-26

Westgate Miami Beach, Ltd. v. Newport Operating Corp.,55 So. 3d 567 (Fla. 2010) .................................................................................31

White v. State,

450 So. 2d 556 (Fla. 2d DCA 1984) ...........................................................19-20

Wood v. State,

750 So. 2d 592 (Fla. 1999) ................................................................................26

Wooten v. State,

67 So. 3d 216 (Fla. 2d DCA 2011) ...................................................................18

CONSTITUTIONAL PROVISIONS

U.S. Const. amend V................................................................................................4, 34

U.S. Const. arnend VI .............._........._...........__.___..._...____...27

Art. V, § 3(b)(3), Fla. Const. .......................................................................................15

Art. V, § 3(b)(4), Fla. Const. .......................................................................................15

STATUTES

22 U.S.C. § 2255...........................................................................................................27

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1X

§ 120.569(1), Fla. Stat. ...............................................................................................44

§ 120.59(4), Fla. Stat. (1995).....................................................................................45

§ 120.68, Fla. Stat. (1995)..........................................................................................45

COURT RULES

Fla. Crim. P. R. 1 (1963) .......................................................................................26-27

Fla. R. Crim. P. 3.070 (2009) ........................................................................................7

Fla. R. Crim. P. 3.800..............................................................................................29-30

Fla. R. Crim. P. 3.800(a)..............................................................................................20

Fla. R. Crim. P. 3.850.........................................................................1, 3, 12-13, 16-23,26-30, 32-34, 36, 40-42, 46

Fla. R. Crim. P. 3.850(g) (1996) .................................................................................17

Fla. R. Crim. P. 3.850(h) ..........................................................................................7,41

Fla. R. Crim. P. 3.850(i) ...........................................................17-18, 24, 37, 40, 43, 45

Fla. R. Crim. P. 3.851.............................................................................................29, 32

Fla. R. App. P. 9.030(a)(2)(A)(vi) ...............................................................................15

Fla. R. App. P. 9.110(l) ...............................................................................................46

Fla. R. App. P. 9.120(b) ......____._..._.._.._....__......_...........................2

Fla. R. App. P. 9.140..._..............._..........._........................._........_..._14,35-38

Fla. R. App. P. 9.140(a) ...............................................................................................36

Fla. R. App. P. 9.140(b)(1)(A) ....................................................................................35

Fla. R. App. P. 9.140(b)(1)(E) .............._......_........_....__............_..__.......35

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Fla. R. App. P. 9.140(b)(1)(F) .....................................................................................35

Fla. R. App. P. 9.140(b)(4) ..........................................................................................35

Fla. R. App. P. 9.140(c)(1)(K) .....................................................................................35

Fla. R. App. P. 9.140(c)(1)(M) ....................................................................................35

Fla. R. App. P. 9.140(c)(1)(N) .....................................................................................35

Fla. R. App. P. 9.140(c)(3) ....................................................................................35,37

Fla. R. App. P. 9.140(f) ................................................................................................35

Fla. R. App. P. 9.140(g)...............................................................................................35

Fla. R. App. P. 9.141........................................................................................14,36, 38

Fla. R. App. P. 9.141(b) .........................................................................................36-37

Fla. R. App. P. 9.141(b)(2)(A) ....................................................................................36

Fla. R. App. P. 9.141(b)(2)(B) .....................................................................................36

Fla. R. App. P. 9.141(b)(2)(C) .....................................................................................36

Fla. R. App. P. 9.141(c)................................................................................................47

Fla. R. App. P. 9.141(c)(5)(A) .....................................................................................47

Fla. R. App. P. 9.210(a)(2) ..........................................................................................49

Fla. R. App. P. 9.420(a)(2) .......................................................................................1

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PRELIMINARY STATEMENT

In this brief, the petitioner, Lamont Taylor, is referred to as "Taylor." The

respondent, State of Florida, is referred to as the "State."

The three-volume record on appeal is cited as R: : , according to volume

and page number. Taylor's initial brief in the district court is cited as IB: ,

according to page number. The State's answer brief is cited as AB:_, according to

page number.

STATEMENT OF THE CASE

Taylor is an inmate currently serving a 15-year sentence of incarceration.

R:2:218-19. On November 10, 2011, he filed1 in the trial court a notice of appeal

(R:3:379-80) through which he sought to appeal orders in which the trial court: (1)

granted in part and denied in part Taylor's motion for postconviction relief under rule

3.850 of the Florida Rules of Criminal Procedure (R:2:203-05); (2) denied his motion

for rehearing of that order (R:3:377-78); (3) denied his amended motion for rehearing

of that order (R:3:366); and (4) denied his motion for clarification of the order

denying his amended motion for rehearing (R:3:377-78). R:3:379-80.

On August 10, 2012, the Fifth District Court of Appeal issued a decision

dismissing Taylor's appeal for lack of jurisdiction. Taylor v. State, 96 So. 3d 989,

1 In this brief, whenever Taylor refers to a date on which he "filed" an appellate-related document, he uses the date on which he placed the document in the handsof an institutional official for filing, as reflected in the certificate of service on thedocument. See Fla. R. App. P. 9.420(a)(2).

14841-1249-2564.1

993 (Fla. 5th DCA 2012). The court certified that its decision conflicted with the

decisions in Cooper v. State, 667 So. 2d 932 (Fla. 2d DCA 1996), and Slocum v.

State, 95 So. 3d 911 (Fla. 1st DCA 2012). Id.

On August 21, 2012, Taylor filed with the Fifth District a timely motion for an

enlargement of time to file a motion for rehearing. That court granted the motion in

an order entered on August 30, 2012, in which the court granted Taylor an

enlargement of time through October 15, 2012 to file a motion for rehearing. Taylor

timely filed such a motion on September 7, 2012. The Fifth District denied the

motion in an order rendered on October 1, 2012.

On October 25, 2012, Taylor timely filed a notice to invoke this court's

discretionary jurisdiction. See Fla. R. App. P. 9.120(b). Through an order dated

April 16, 2012, this court accepted jurisdiction and appointed appellate counsel for

Taylor.

STATEMENT OF FACTS

In September 2003, Taylor was criminally charged with five counts:

Count I-Trafficking in 400 grams or more of cocaine;

Count II-Possession of cocaine with intent to sell or deliver;

Count III-Delivery of cocaine;

Count IV-Possession of more than 20 grams of cannabis; and

Count V-Possession of drug paraphernalia.

4841-1249-2664.1

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R:1:10-14. He pled nolo contendere to Counts I, II, IV, and V. R:15-18. The State

filed a nolleprosequi as to Count III. R:1:29. The trial court adjudicated Taylor guilty

on the counts to which he pled and sentenced him to a term of incarceration for 22

years. R:19-21, 25-28.

The judgments of conviction and sentence were rendered on January 7, 2005.

R:19-21, 25-28. On February 7, 2006, the Fifth District Court of Appeal affirmed the

conviction and sentence on direct appeal, affirming without a written opinion. Taylor

v. State, 923 So. 2d 514 (Fla. 5th DCA 2006) (table).

In the meantime, on February 2, 2007, Taylor, acting pro se, filed in the trial

court a motion for postconviction relief pursuant to rule 3.850 of the Florida Rules of

Criminal Procedure. R:1:36-50. The trial court, sua sponte, entered an order

dismissing that motion without prejudice because it contained an insufficient oath.

R:1:51.

Taylor filed an amended motion for postconviction relief (the "Rule 3.850

Motion") on March 22, 2007, together with a supporting memorandum of law.

R:1:52-76, 77-87. In that motion, Taylor raised four grounds for relief:

Ground One-Ineffective assistance of trial counsel in misadvisingTaylor on the sentence that he would receive in exchange for an openplea of nolo contendere (R:1:55-58);

Ground Two-Ineffective assistance of trial counsel in failing toinvestigate the facts concerning Taylor alleged confession and in failingto file a motion to suppress Taylor's statements to the police, when

4841-1249-2564.1

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those statements were obtained in violation of Taylor's rights underMiranda v. Arizona, 384 U.S. 436 (1966) (R:1:58-60);

Ground Three-Ineffective assistance of trial counsel in failing toadvise Taylor that his convictions for trafficking and possession ofcocaine violated the Double Jeopardy Clause of the Fifth Amendment tothe United States Constitution (R:1:60-62); and

Ground Four-Ineffective assistance of trial counsel in failing to callwitnesses who would have supported Taylor's motion to suppress(R:1:62-65).

R:1:55-65.

The trial court directed the State to file a response to Taylor's Rule 3.850

Motion. R:1:88. The State did so (R:1:92-124), and Taylor filed a reply to that

response (R:1:129-40, 141-57).

On January 14, 2009, the trial court entered an order summarily denying relief

to Taylor on Grounds One and Two of his Rule 3.850 Motion and finding that an

evidentiary hearing was required with respect to Grounds Three and Four. R:1:159-

63.

Taylor thereafter filed a motion for the appointment of counsel to represent

him at the court-ordered evidentiary hearing. R:1:165-67. He also filed a demand for

discovery. R:1:177. The record does not reflect a formal ruling on Taylor's motion

for the appointment of counsel-except to the extent that the court implicitly denied

that motion by later proceeding with the evidentiary hearing without appointing

4841-1249-2.564.1

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counsel for him. R:2:282-83. The record also does not reflect that the State complied

with Taylor's demand for discovery.

The evidentiary hearing on Grounds Three and Four of Taylor's Rule 3.850

Motion took place on March 24, 2009. R:2:201-02, 280-302. Taylor was present at

that hearing, but the trial court did not appoint counsel to represent him. R:2:201,

282-83. Taylor's trial attorney testified as a witness for the State. R:2:201, 284-301.

On March 30, 2009, the trial court entered an order (the "Rule 3.850 Order")

disposing of the balance of Taylor's Rule 3.850 Motion. R:2:203-05. In that order,

formally entitled "Order Denying in Part and Granting in Part Motion for

Postconviction Relief After Evidentiary Hearing," the trial court denied relief to

Taylor with respect to Ground Four of his Rule 3.850 Motion. R:2:204-05. But the

court partially granted relief as to Ground Three. R:2:203-04. Specifically, as to that

ground, the court ruled as follows:

Ground Three: The Defendant alleges that trial counsel failed toadvise him that his convictions for trafficking in cocaine andpossession with intent to sell or deliver cocaine violate the doublejeopardy clause. According to the Defendant, had he known ofthe double jeopardy issue, he would not have entered his nolocontendere pleas and w ould have insisted on proceeding to trial

At the evidentiary hearing, Debra Ferwerda, trial counsel for theDefendant, testified that the State filed the nolle prosequi as to theincorrect count. According to Ms. Ferwerda, she had pointed outto the State the double jeopardy issue and the State agreed to filea nolle prosequi as to Count 2-possession of cocaine with intentto sell and deliver cocaine. However, the State inadvertently filedthe nolle prosequi as to Count 3.

4841-1249-2564.1

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This Court finds Ms. Ferwerda to be a credible witness. Becausethe Defendant was never supposed to be convicted of Count 2,his claim that his plea was involuntary is refuted. Nevertheless,he was convicted of Count 2 and that conviction must be vacated.Further, the vacation of the conviction will change the minimumguideline sentence. Since the record does not demonstrate that thesame sentence would have been imposed with a correctedscoresheet, a resentencing hearing is necessary.

R:2:203-04.2

The Rule 3.850 Order concluded as follows:

Based on the foregoing, it is ORDERED:

1. Ground 3 of the Defendant's motion is DENIED in part andGRANTED in part.

2. The Defendant's conviction and sentence for Count 2 isvacated.

3. The Defendant is to be brought before this Court on April 21,2009 at 8:30 am for resentencing.

4. The Office of the Public Defender is appointed to representthe Defendant at resentencing.

5. Ground 4 of the Defendant's motion is DENIED.

6. The Defendant is advised that he mayfile an appeal in writingwithin thirty (30) daysfrom the date ofrendition ofthis Order.

7. The Clerk of the Court shall promptly serve a copy of thisOrder upon the Defendant including an appropriate certificate ofservice.

2 The trial court eventually entered an order dismissing Count Two of the chargesagainst Taylor "on double jeopardy grounds." R:2:243.

4841-1249-2564.1

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R:2:204-05 (emphasis added).

The Rule 3.850 Order was served on Taylor by mail on March 30, 2009.

R:2:205. On April 15, 2009, Taylor filed a timely motion for rehearing directed to

that order. R:2:206-13; see Fla. R. Crim. P. 3.850(h) ("The party may file a motion

for rehearing of any final order addressing a motion under this rule within 15 days of

the date of service of the final order"); see also Fla. R. Crim. P. 3.070 (2009)

("Whenever a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a notice or other paper on

the party and the notice or paper is served on the party by mail, 3 days shall be added

to the prescribed period").

Taylor was resentenced as scheduled on April 21, 2009. R:2:223-24, 303-21.

He was sentenced to 15 years of incarceration (reduced from his original sentence of

22 years). R:2:218-19.

At the resentencing hearing, the circuit court orally advised Taylor of his right

to appeal the new sentence-without ever mentioning his right (or duty) to appeal the

Rule 3.850 Order at the same time. R:2:311. Similarly, the resentencing order

(rendered on April 21, 2009) referred to Taylor's right to appeal from his new

sentence, but did not reference the Rule 3.850 Order. R:2:219.

Taylor filed a notice of appeal on May 21, 2009. R:2:233. In that notice, he

stated that he was appealing from "the Final judgement [sic] of this court dated April

4841-1249-2564=1

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21, 2009." R:2:233. He described "[t]he nature of the judgement [sic] appealed" as "a

Final order sentencing the Defendant and the Decision, the case concerning that

sentence. Defendant's stentence[sic]/resentence on 4-21-09 only." R:2:233.3 On

March 8, 2011, the Fifth District Court of Appeal, without issuing a written opinion,

affirmed Taylor's new sentence on direct appeal. Taylor v. State, 56 So. 3d 785 (Fla.

5th DCA 2011)(table).

On July 13, 2011, Taylor, again acting pro se,4 filed in the trial court a motion

that he entitled "Amended Motion for Rehearing of Post Conviction Denial for

3.850." R:3:327-65. That motion was essentially a supplement to the still-pending

motion for rehearing that Taylor had previously filed on April 15, 2009 with respect

to the Rule 3.850 Order. R:2:206-13.

On September 2, 2011, the trial court, sua sponte, entered an order entitled

"Order Denying 'Amended Motion for Rehearing of Post Conviction Denial for

3.850.'" R:3:366. The court held that the motion was "procedurally barred" because

it was not filed within 15 days from the date of service of the Rule 3.850 Order.

R:3:366. The order contained no language concerning Taylor's appellate rights.

Fhe i Hih Distnet mmily dismissed Taylor's appeal based upon his failure to paya filing fee or to file an order of insolvency. R:2:250. The court denied Taylor'sfirst motion to reinstate that appeal, but reinstated it upon a second motion for thatrelief-after Taylor obtained the appropriate order of insolvency. R:2:254, 258,259, 263.

4 Taylor continued to act pro se throughout the balance of the proceedingsdescribed in this brief.

4841-1249-2564.1

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On September 18, 2011, Taylor filed a motion that he styled as "Emergency

Motion for Clarification." R:3:367-76. In that motion, Taylor pointed out (among

other things) that he had filed a timely motion for rehearing directed to the Rule

3.850 Order-and he referred the trial court to the motion that he had filed on April

15, 2009. R:3:367-68. Taylor also noted that that motion still remained pending.

R:3:367-68.

On October 14, 2011, the trial court, sua sponte, rendered an order ("the Order

Denying Rehearing") entitled "Order Denying 'Emergency Motion for

Clarification.'" R:3:377-78. That order reads, in pertinent part, as follows:

THIS MATTER came before the Court for consideration ofDefendant Lamont Taylor's "Emergency Motion forClarification," filed on September 21, 2011.[5]

In the instant Motion, Defendant claims that this Court's previousdenial of his "Amended Motion for Rehearing of Post ConvictionDenial for 3.850," filed on July 13, 2011 was in error, andattaches a previously filed Motion for Rehearing, filed on April15, 2009.[FN 1] In this Court's first denial of Defendant'sMotion for Rehearing, this Court determined that Defendant'smotion was untimely because it was filed over two years after hisMotion for Postconviction [sic] had been denied.

[FN 1: This Motion for Rehearing is missing from the court file,and the Court was not aware of this motion until Defendant

5 As previously noted, the record reflects that the motion was actually filed onSeptember 18, 2011. R:3:367.

4841-1249-2564.1

9

attached a copy of it.[6]]

This Court has now considered Defendant's original Motion forRehearing, filed on April 15, 2009. A Motion for Rehearingpermits a defendant to identify specific facts or points of law thatthe Court overlooked or misapprehended, but it may not be usedto re-argue the merits of the Court's findings or to expressdisagreement with its ruling. However, in his original Motion,Defendant merely restates his original claims. This is notappropriate.

After due consideration, the Court finds no legal basis to grantrehearing and stands by its original ruling, finding thatDefendant's claims are either refuted by the record or that they donot meet the standard set forth in Strickland v. Washington, 466U.S. 668 (1984).

Based on the foregoing, it is ORDERED AND ADJUDGED thatthe Motion for Rehearing is DENIED.

R:3:377. In its Order Denying Rehearing, the trial court did not address the

substantive arguments that Taylor had raised in his amended motion for rehearing.

The order also did not include any language addressing any appellate rights that

Taylor might have.

On November 10, 2011, Taylor filed a notice of appeal. R:3:379-80. In that

notice, Taylor stated that he was appealing "the final order[s] of this court denying

Postconviction relief, Rehearing of 3.850, Amended Rehearing and Appointment of

Counsel entered on March 30, 2009; 9/6/11; 10;13/11." R:3:379. The Fifth District's

4 This statement from the trial court is perplexing because the record on appealreflects that Taylor's original motion for rehearing was in the court file, at thelocation at which one would expect to find it. R: R:2:206-13.

4841-1249-2564.1

10

dismissal of that appeal on jurisdictional grounds is the decision that is now the

subject of the current proceeding in this court-the case in which this brief is being

filed. See Taylor v. State, 96 So. 3d 989, 993 (Fla. 5th DCA 2012).

Taylor raised three issues on appeal: (1) the trial court's failure to appoint

counsel to represent him at the evidentiary hearing on his Rule 3.850 Motion (IB:8-

10); (2) the trial court's conclusion that Taylor's trial counsel was not ineffective for

failing to investigate, or failing to file a motion to suppress, Taylor's alleged

confession (IB:11-13); and (3) the trial court's conclusion that Taylor's trial counsel

was not ineffective for failing to call witnesses at a suppression hearing (IB:14-17).

In its answer brief, the State responded to each of those arguments. AB:5-18.

The Fifth District did not reach the merits of Taylor's appeal. Instead, it

dismissed the appeal for lack of jurisdiction. 96 So. 3d at 993. Before doing so, the

court did not issue an order to show cause requesting Taylor to address the

jurisdictional issue. Nor did the State raise any jurisdictional issues in its answer

brief. On the contrary, the State stated in its answer brief that Taylor's "notice of

appeal was timely filed from the denial of the motion for rehearing." AB:3.

The Fifth District nevertheless concluded (as more fully discussed in the

Argument section of this brief) that the Rule 3.850 Order was not a final appealable

order, because further judicial labor-Taylor's resentencing-was required

thereafter. 96 So. 3d at 992-93. Thus, according to the Fifth District, Taylor was

4841-1249-2564.1

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required to appeal from the Rule 3.850 Order at the same time that he appealed from

his resentencing, notwithstanding the then-pending motion for rehearing that Taylor

had filed with respect to the Rule 3.850 Order. Id.

Taylor unsuccessfully moved for rehearing of the decision dismissing his

appeal. The Fifth District's order denying rehearing was rendered on October 1,

2012, and Taylor timely filed a notice to invoke this court's discretionary jurisdiction

on October 25, 2012.

SUMMARY OF ARGUMENT

This court's jurisdiction in this case arises both because of a certified

conflict and because the Fifth District's decision in fact expressly and directly

conflicts with decisions of other district courts of appeal on the same question of

law. The issue on which conflict exists is whether an order disposing of a motion

under rule 3.850 of the Florida Rules of Criminal Procedure is final and appealable

if the disposition of that motion requires further judicial labor-in the form of a

resentencing--in the movant's underlying criminal prosecution. The Fifth

District's decision was in error on that point.

Under well established Florida law, the proceedings on a rule 3.850 motion

are civil in nature and are not part of the underlying criminal prosecution. A

resentencmg, in contrast, is manifestly part of the criminal prosecution-and is

obviously not civil in nature. The two are legally and jurisdictionally distinct.

4841-1249-2664.1

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Thus, both the resentencing order in Taylor's case and the Rule 3.850 Order were

final orders, and each was independently appealable. The latter, however, was not

rendered for appellate jurisdictional purposes until after the disposition of Taylor's

appeal from his resentencing order. And once the Rule 3.850 Order was rendered,

Taylor timely prosecuted an appeal from that order. The Fifth District accordingly

erred in concluding that it lacked subject matter jurisdiction over that appeal.

The Fifth District's conclusion also cannot be reconciled with this court's

postconviction jurisprudence in capital cases. In those cases, this court regularly

recognizes as final and appealable orders that partially grant, and partially deny, a

death-sentenced inmate's motion for postconviction relief-when, for example, a

trial court vacates an inmate's death sentence or orders a new sentencing hearing.

This court does not require the new sentence to be imposed-or the new

sentencing hearing to take place-before the order on the postconviction motion is

deemed final and appealable for appellate jurisdictional purposes.

Additionally, the Fifth District's decision creates horrible consequences for

the State in future cases. If, as the Fifth District held, an order on a rule 3.850

motion is not final or appealable until after the completion of any further judicial

labor in the underlying criminal prosecution, the State, for example, would be

unable to appeal an order in which the order had the effect of granting a defendant

a new trial. And if that new trial resulted in an acquittal, the State would be barred

4841-1249-2564.1

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by Double Jeopardy principles from appealing-and forever foreclosed from

obtaining appellate review of the trial court's award of postconviction relief to the

defendant.

Further, the Fifth District's decision will create bad appellate policy and

create unnecessary confusion in the area of Florida appellate practice. The court's

decision essentially requires defendants to prosecute a "hybrid" type of appeal that

is currently unknown to Florida law. A portion of that appeal would be plenary in

nature, directed to the defendant's sentence, governed by rule 9.140 of the Florida

Rules of Appellate Procedure, and subject to the defendant's constitutional right to

appointed appellate counsel. The other portion of the appeal would be limited,

confined to postconviction issues, governed by rule 9.141, and not subject to the

right to counsel.

Finally, the Fifth District's decision should be quashed irrespective of this

court's resolution of the certified conflict, due to the trial court's failure to comply

with its legal duty to inform Taylor accurately of his appellate rights with respect

to the Rule 3.850 Order. Under Florida law, the consequences of the trial court's

crror cannot properly be visited upon Taylor, and he cannot properly be deprived

of his right to appellate review of the Rule 3.850 Order because of the trial court's

mistake.

4841-1249-2564.1

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ARGUMENT

A. THIS COURT HAS JURISDICTION TO REVIEW THIS CASE

1. Certified Conflict Exists

This court has discretionary jurisdiction to review Taylor's case under article

V, section 3(b)(4), of the Florida Constitution because the Fifth District certified that

its decision in this case conflicted with decisions of two other district courts of appeal

on the same question of law: Cooper v. State, 667 So. 2d 932 (Fla. 2d DCA 1996),

and Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012). See Taylor v. State, 96 So.

3d 989, 993 (Fla. 5th DCA 2012); see also Fla. R. App. P. 9.030(a)(2)(A)(vi).

2. The Nature of the Certified Conflict

Even without the Fifth District's certification, it would nonetheless be clear

that conflict jurisdiction existed here under article V, section 3(b)(3), of the Florida

Constitution.7

The issue in this case that has given rise to interdistrict conflict concerns the

finality of an order disposing of a motion for postconviction relief under rule 3.850 of

the Florida Rules of Criminal Procedure, when that disposition entails further judicial

labor-in this case, a resentencing-in the underlying crirninal case. In Taylor's case,

the Fifth District held that an order of that nature is not final or appealable-and must

instead be appealed, if at all, only after the additional judicial labor in the underlying

In its jurisdictional brief, the State did not deny the existence of conflict or urgethis court to decline discretionary review. See State's Jurisdictional Brief at 3-5.

4841-1249-2564.1

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criminal proceeding has been concluded. 96 So. 3d at 992-93. The First and Second

Districts, in contrast, have held that such an order is final and appealable.

This issue first arose in the district courts in Cooper v. State, 667 So. 2d 932

(Fla. 2d DCA 1996). In that case, an inmate filed a motion for postconviction relief

under rule 3.850, raising two grounds of ineffective assistance of counselane

concerning his conviction and the second concerning his sentence. Id. at 933. The

trial court held an evidentiary hearing on the motion and denied the claim concerning

the inmate's conviction but granted relief on the sentence-related claim. Id. Over

three months later, the inmate filed in the trial court a motion seeking leave to file a

belated appeal with respect to the portion of his motion that the court had denied. Id.

The trial court denied the inmate's motion (which it treated as a successive motion

under rule 3.850) on the ground that "the order for which he sought belated review

was not an appealable, final order." Id.

The Second District reversed. It held that the order denying the inmate's

original motion for postconviction relief was an appealable final order. Id. The

court's rationale was as follows:

An order which denies a claim in a postconviction motion andgrants an evidentiary hearing on a different claim in the samemotion is not appealable until all issues raised have been ruledupon by the court. Judicial economy favors this rule whichforbids piecemeal appeals until all pending matters raised in asingle motion have been resolved and which can then beefficiently reviewed in one appellate proceeding. An orderdenying in part and granting in part relief however, marks the

4841-1249-2564,1

16

end of the judicial labor which is to be expended on the motion,and the order is finalfor appellate purposes. And, as here, if thepart of the motion which is granted requires subsequent action onthe principal case under attack, such as resentencing, we perceiveno jurisdictional impediment imposed by the appeal from thepostconviction motion to prevent that action.

Id. (emphasis added). The Second District further noted that the State's right to

appeal from the ruling granting the inmate a new sentencing hearing accrued upon

the rendition of the order partially granting the inmate's motion for postconviction

relief. Id.

Additionally, the Cooper court referred to the provision in rule 3.850

providing for an appellate remedy-noting that "[e]ither party could have sought

review of the order denying in part and granting in part the postconviction motion."

Id. The provision in question, now contained within subdivision (i) of rule 3.850,8

reads as follows:

(i) Appeals. An appeal may be taken to the appropriate appellatecourt from a final order addressing a motion under this rule. Allfinal orders addressing a motion under this rule shall include astatement that the party has a right to appeal within 30 days of therendition of the final order. All nonfinal orders addressingmotions under this rule shall include a statement that "this orderis a nonfinal, nonappealable order."

8 At the time of the Cooper decision, the provision was embodied in subdivision(g) of rule 3.850. 667 So. 2d at 933.

4841-1249-2564.1

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Fla. R. Crim. P. 3.850(i)."

The Third District relied upon Cooper in Diaz v. State, 686 So. 2d 679 (Fla. 3d

DCA 1996). In that case, the defendant was convicted in seven of eight cases that

were consolidated for trial. Id. at 679. The defendant filed a motion for a new trial,

and the circuit court ordered an evidentiary hearing with respect to two of the cases

but denied it with respect to the other five. Id. The defendant sought to appeal, but the

Third District dismissed the appeal for lack of jurisdiction. Id. Citing Cooper (and

other cases as well), the Third District reasoned:

After the evidentiary hearing already granted, the court will haveto determine whether this newly discovered evidence wouldprobably produce an acquittal on retrial. At that point, the courtwill either grant a new trial, or deny the motion for a new trial

9 The Second District has cited Cooper frequently in subsequent cases. Althoughthose opinions have usually been short orders dismissing appeals for lack ofjurisdiction (and lacking any discussion of the facts or procedural postures of thecases), Cooper generally seems to have been cited for the proposition (not at issuehere) that an order on a motion under rule 3.850 is not final or appealable if the orderaddresses (and denies) only a portion of a rule 3.850 motion and leaves the balance ofthe motion for later disposition. See, e.g., Freeman v. State, 94 So. 3d 591, 591 (Fla.2d DCA 2012); Wooten v. State, 67 So. 3d 216, 216 (Fla. 2d DCA 2011); Short v.State, 783 So. 2d 262, 262 (Fla. 2d DCA 2001); Luna v. State, 781 So. 2d 1093, 1093(Fla. 2d DCA 2001); Libertelli v. State, 775 So. 2d 339, 339-40 (Fla. 2d DCA 2000);Cavanagh v. State, 775 So. 2d 294, 294 (Fla. 2d DCA 2000); Libertelli v. State, 755So. 2d 122, 122 (Fla. 2d DCA 2000); Wells v. State, 744 So. 2d 1007, 1007 (Fla. 2dDCA 1999); Wells v. State, 744 So. 2d 1007, 1007 (Fla. 2d DCA 1999); McCarta v.State, 722 So. 2d 200, 200 (Fla. 2d DCA 1998); Melendez v. State, 711 So. 2d 543,543 (Fla. 2d DCA 1998); Martin v. State, 711 So. 2d 542, 542 (Fla. 2d DCA 1998).On that point, the Fifth District and the Second District are in agreement. See, e.g.,Taylor, 96 So. 3d at 990-91; Anglin v. State, 970 So. 2d 903, 903 (Fla. 5th DCA2007); Leger v. State, 818 So. 2d 697, 697 (Fla. 5th DCA 2002); Gordon v. State,688 So. 2d 995, 995 (Fla. 5th DCA 1997).

4841-1249-2564.1

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and find the evidence would not have changed the results. It is atthat time, when the court either grants in part and denies in partthe entire motion, or denies it completely that this matter will beripefor appeal.

Id. (emphasis added).

In Cervino v. State, 785 So. 2d 631 (Fla. 5th DCA 2001), the Fifth District

reached a conclusion that was irreconcilable with Cooper (although the Fifth District

did not mention Cooper in its decision). In that case, an inmate raised two grounds

for relief in a motion for postconviction relief under rule 3.850. Id. at 631. In his first

ground, the inmate asserted that he was entitled to be resentenced. In his second, he

raised claims of ineffective assistance of counsel. Id. The trial court entered an order:

(1) summarily denying relief on the second claim; but (2) partially granting relief on

the first claim and scheduling a new sentencing hearing. Id. at 631-32. The inmate

appealed.

The Fifth District dismissed the inmate's appeal "as an improper piecemeal

appeal." Id. at 631. Its rationale was as follows:

The trial court's order is not appealable because it does notconstitute a final order. By its own terms, the order contemplatesfuture action on Cervino's motion because it calls for aresentencmg heanng w ith regard to the first claim. Therefore. thejudicial labor in the trial court has not ended. . . . This court in[Gowins v. State, 662 So. 2d 1348 (Fla. 5th DCA 1995)] quotedthe following language from White v. State, 450 So. 2d 556 (Fla.2d DCA 1984):

4841-1249-2564.1

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The question [arises] as to the appealability of an orderpartially disposing of a Rule 3 motion.[1°] If this werepurely a civil case, such a partial order would not beappealable unless it disposed of claims unrelated to theremaining claims. An order or judgment is not consideredfmal until it disposes of all the issues presented. The samepolicies against allowing piecemeal appeals apply here.We see no reason not to apply this principle to ordersentered on Rule 3 motions. (footnotes omitted)[.]

Gowins, 662 So. 2d at 1349 (quoting White, 450 So. 2d at 557).Accordingly, we dismiss this appeal sua sponte for lack ofjurisdiction. Cervino would of course be free to appeal once thetrial court disposes of his motion in its entirety.

Id. at 632.

A comparable issue arose in Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA

2012). In that case, an inmate filed a motion for postconviction relief under rule

3.800(a) (not rule 3.850). Id. at 596. The trial court denied the motion, and the inmate

appealed. The First District reversed because the trial court failed to attach

documents conclusively refuting the inmate's facially sufficient claim. See Jordan v.

State, 32 So. 3d 727, 727-28 (Fla. 1st DCA 2010). On remand, however, the trial

granted the motion and ordered a resentencing hearing-but the trial judge passed

away before that hearing could take place. Id. The State filed a motion for

reconsideration 77 days after the entry of the order granting the inmate's motion. Id.

° The motion at issue in White was a motion under rule 3.850. White, 450 So. 2d at556-57.

4841-1249-2.564.1

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Over the inmate's objection, a successor judge vacated the earlier order and denied

the inmate's rule 3.800(a) motion for postconviction relief. The inmate appealed. Id.

The inmate argued on appeal that the successor judge lacked jurisdiction to

vacate the earlier order granting postconviction relief, even though the resentencing

hearing had not yet taken place. Id. The State confessed error on that point. Id. And

the First District accepted the confession of error, agreeing that "[t]he order entered

by the first judge granting Appellant's rule 3.800(a) motion was a final order because

it brought the postconviction proceeding to an end." Id. The First District therefore

quashed the order on appeal and remanded with directions to reinstate the prior order

granting the inmate's postconviction motion-and to proceed with the resentencing.

Id.

More directly on point was the First District's later decision in Slocum v. State,

95 So. 3d 911 (Fla. 1st DCA 2012). In that case, an inmate filed a rule 3.850 motion

challenging both his convictions and sentences. Id. at 912. On July 27, 2011, the trial

court rendered an order: (1) denying all relief with respect to the convictions, but (2)

setting aside the sentences and ordering a new sentencing hearing. Id. The

resentencina occurred on October 19, 2011, after which the inmate, through counsel,

filed a notice of appeal on November 7, 2011. Id. Thereafter, on November 17, 2011,

the inmate, acting pro se, filed a second notice of appeal, reflecting an intention to

appeal not only the resentencing but also the partial denial of his rule 3.850 motion.

4841-1249-2564.1

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Id. And when the inmate's counsel filed the initial brief, the only issue raised

concerned the summary denial of a claim in the inmate's rule 3.850 motion-and no

issues concerning the inmate's resentencing. Id.

The First District ordered the inmate to show cause why his appeal from the

denial of postconviction relief should not be dismissed as untimely. Id. In response,

the inmate argued that his notice of appeal was sufficient to vest appellate jurisdiction

to review not only the resentencing order but also the earlier order on his rule 3.850

motion. Id.

The First District rejected the inmate's argument. Id. at 913. Citing both

Cooper and Jordan, the First District held that "[t]he July 27, 2011 order denying

relief in part and granting relief in part conclusively resolved all of Mr. Slocum's

postconviction claims, and finally concluded collateral proceedings." Id. According

to the First District, the mere fact that the trial court ordered a resentencing in its

order disposing of the inmate's rule 3.850 motion did not divest that order of finality

because "resentencing [in the original case] is a de novo proceeding." Id. (quoting

Jones v. State, 35 So. 3d 69, 70 (Fla. 1st DCA 2010)). Thus, the First District

dismissed the appeal for lack ofjurisdiction "[b]ecause no notice of appeal was filed

within thirty days of the order disposing of the appellant's postconviction claims, and

no issue has been raised regarding the resentencing." Id. at 913.

4841-1249-2564.1

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Taylor's case was the next reported decision addressing the finality and

appealability of orders disposing of a rule 3.850 motion but calling for additional

judicial labor in the underlying criminal case. In Taylor, the Fifth District relief upon

its prior decision in Cervino and held that the Rule 3.850 Order that the trial court

entered in Taylor's case was not final or appealable because it contemplated further

judicial labor-Taylor's resentencing. 96 So. 3d at 991-93.

In discussing the Second District's contrary conclusion in Cooper, the Fifth

District stated as follows:

Both Cervino and Cooper narrowly focused on whether furtherjudicial labor was contemplated on the defendants'postconviction motion, rather than then [sic] entire "cause"between the parties. The courts disagreed on the effect ofordering resentencing. This court held that ordering resentencingcontemplated further judicial labor on the motion while theSecond District held that it did not. This court's holding inCervino is more faithful to the traditional finality test becauseordering a resentencing contemplates further judicial labor in thecause between the parties. [Citations omitted.] Where Cooperwould require an appeal from an order granting in part anddenying in part postconviction relief, and a separate appeal froma subsequent resentencing if necessary, Cervino recognizes that adefendant should simply raise all issues in one appeal afterresentencmg.

Because Cervino appears to more faithfully follow the supremecourt's rule of finality and policy preventing piecemeal appeals,and without a meaningful distinction between Cervino and theinstant case, we follow Cervino and conclude that the trial court'sMarch 31, 2009, order [the Rule 3.850 Order] was not a final,appealable order. As such, Taylor's motion for rehearing did nottoll the time for appeal-and Taylor should have raised any

4841-1249-2564.1

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issues related to the trial court's March 31, 2009 order on appealafter his resentencing-as this court instructed in Cervino.

Id. at 992-93 (emphasis in original; footnote omitted). In a footnote, the Fifth District

also suggested that "Taylor's notice of appeal of his resentencing arguably

constituted an abandonment of his motion for rehearing." Id. at 993 n.l.

In its decision, the Fifth District conceded that "[i]t could be argued that

following Cervino created a trap for Taylor resulting in the denial of his ability to

obtain appellate review of the denial of his postconviction claims." Id. at 993. In that

regard, the court noted: (1) that "[t]he March 31, 2009 order appeared to be final, and

even notified Taylor of his right to appeal as required under rule 3.850(i)"; and (2)

that "Taylor filed a timely motion for rehearing and the court did not rule on the

motion until long after resentencing."Id. Nonetheless, the Fifth District stated:

However, Cervino was the law in this district at the time and itclearly held that such orders are not final. Cervino alsorecognized that the defendant would be "free to appeal once thetrial court disposes of his motion in its entirety," meaning afterresentencing. 785 So. 2d 631. Thus, Taylor could havechallenged the denial of his postconviction claims in his appealfrom the resentencing, but expressly limited his appeal to theresentencmg.

Id." The court therefore dismissed Taylor's appeal for lack of jurisdiction and

certified conflict with Cooper and Slocum.°Id.

The Fifth District also noted that "Taylor lost his ability to seek a belatedappeal" because he "wait[ed] more than two years to pursue the matter further." 96So. 3d at 993.

4841-1249-2664 1

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This court should now clarify which line of cases is correct: Those of the Fifth

District in Cervino and Tävlor or those of the First and Second Districts in Slocum

and Cooper (and arguably the Third District in Diaz as well). As explained below,

the latter are right. The Fifth District's decision here to the contrary should therefore

be quashed, and its earlier decision to the same effect in Cervino should be

disapproved.

B. THE FIFTH DISTRICT ERRED AS A MATTER OF LAW INHOLDING THAT THE ORDER DISPOSING OF TAYLOR'SRULE 3.850 MOTION-GRANTING IT IN PART ANDDENYING IT IN PART-WAS NOT FINAL OR APPEALABLE

The existence of subject matter jurisdiction is a question of law. See, e.g.,

Baudanza v. Baudanza, 78 So. 3d 656, 658 (Fla. 4th DCA 2012); Pesta v.

Department of Corrections, 63 So. 3d 788, 790 (Fla. 1st DCA 2011). Thus, the Fifth

District's decision in this case is subject to de novo review in this court. See, e.g., Lee

County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 299 (Fla. 2002); Rudel v. Rudel,

38 Fla. L. Weekly D858, D859 (Fla. 4th DCA Apr. 17, 2013); Department of

Revenue ex rel. Smith v. Sellers, 47 So. 3d 916, 918 (Fla. 1st DCA 2010); see

generally Wendler v. Citv ofSt. Augustine, 108 So. 3d 1141, 1143 n.3 (Fla. 5th DCA

Subsequent to Taylor, the First District relied on Slocum to dismiss an inmate'sappeal, noting Taylor with a "but see" citation. See Carriles v. State, 102 So. 3d704, 704 (Fla. 1st DCA 2012). According to the First District's online docket, theappellant in Carriles did not seek rehearing or discretionary review from this court.

484b1249-2564.1

25

2013). For several independently dispositive reasons, the district court was wrong in

its conclusion as a matter of law, and its decision should accordingly be quashed.

1. In Its Decision, the Fifth District Erroneously Failed toRecognize and Appreciate the Nature of Proceedings UnderRule 3.850

The Fifth District's principal error in this case was ultimately a simple one: it

failed to appreciate the nature of the proceedings on Taylor's Rule 3.850 Motion. The

court failed to recognize that the proceedings on that motion represented a distinct,

independent, insular, and ancillary proceedingwivil, not criminal, in nature-within

Taylor's underlying criminal case. Those civil proceedings were commenced when

Taylor filed his Rule 3.850 Motion, and they concluded only upon the rendition of

the Order Denying Rehearing. Contrary to what the Fifth District concluded, they did

not conclude upon the rendition of the resentencing order in the underlying criminal

case.

Rule 3.850 originated as Criminal Procedure Rule No. 1, which this court

adopted in 1963. See In re Crim. P., Rule No. 1, 151 So. 2d 634, 634 (Fla. 1963).

That rule supplants the remedy of habeas corpus in most criminal cases." See, e.g.,

State v. Weeks, 166 So. 2d .892, 894 (Fla. 1964). And Florida law is clear that habeas

corpus proceedings are civil actions. See, e.g., Jones v. Florida Parole Comm'n, 48

Rule 3.850 also supplants the common law writ of coram nobis for criminaldefendants in custody. See Wood v. State, 750 So. 2d 592, 594 (Fla. 1999);Richardson v. State, 546 So. 2d 1037, 1038-39 (Fla. 1989).

4841-1249-2564 1

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So. 3d 704, 708 (Fla. 2010); Allen v. Butterworth, 756 So. 2d 52, 60 (Fla. 2000).

Correspondingly, proceedings under rule 3.850 are civil in nature as well. See, e.g.,

Weeks, 166 So. 2d at 894.

As this court explained in Weeks:

The federal courts have held that post-conviction habeas corpusand proceedings under [28 U.S.C. § 2255] are not steps in acriminal prosecution. On the contrary, they are in the nature ofindependent, collateral civil actions which are not clothed with

the aspects of a "criminal prosecution" under the Sixth

Amendment. In view of the admitted similarity between ourRule 1 and Section 2255, we feel justified in applying thefederal precedents to the situation at hand. This is so eventhough our Rule is designated for convenience as CriminalProcedure Rule #1. The designation was adopted to alertinterested parties to its availability as a new procedural methodfor post-conviction relief. While it provides a process forassaulting a criminal judgment it is no more a step in a

criminal prosecution than is post-conviction habeas corpus or a

Section motion. The Florida rule provides for an independent,civil, collateral attack on a criminal court judgment. Its federal

statutory ancestor, Section 2255, supra, has been construed tohave the same effect.

Id. (emphasis added). Thus, proceedings under rule 3.850 "are civil in nature and

do not constitute steps in a criminal prosecution." Id. at 896.

In State v. White, 470 So. 2d 1377 (Fla. 1985), this court elaborated upon the

distinction between civil proceedings under rule 3.850 (and other postconviction

remedies) and proceedings in the underlying criminal case:

Appellee misunderstands the nature of collateral post-

conviction remedies such as those provided by rule 3.850 andwrits of error coram nobis and habeas corpus. Rule 3.850

4841-1249-2564.1

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provides a judicial remedy whereby a post-conviction motionfor relief may be heard in the trial court where the records andwitnesses and others with knowledge of the case are likely tobe. Thus, the rule avoids both the cumbersomeness of the writof error coram nobis whereby a petition is addressed to thecognizant appellant court seeking authority to approach the trialcourt and the inefficiency of the writ of habeas corpus whichentails approaching a court unfamiliar with the case at hand.These post-conviction remedies are not steps in a criminalprosecution but are in the nature of independent collateral civilactions from which either the government of the defendant(petitioner) may appeal.

Id. at 1378 (footnote and citations omitted; emphasis added).

And once the true nature of a rule 3.850 proceeding is understood-as a civil

action that does not constitute any part of the underlying criminal prosecution-it

becomes rather obvious that the First District and Second District reached the

correct conclusions in Slocum and Cooper respectively-and that the Fifth District

erred in Cervino and Taylor. As the First and Second Districts recognized, the

collateral civil actions that were commenced through the filing of rule 3.850

motions concluded only upon the rendition of orders disposing of those motions

with finality-and not upon any judicial labor that may or may have occurred in

the underlying criminal prosecution. Legally, conceptually, and jurisdictionally,

one had nothing to do with the other.

Moreover, the Fifth District's error in Taylor was even greater than the one

that it made in Cervino-because of a subtle, yet important, expansion of

Cervino's erroneous reasoning in Taylor.

4841-1249-2564.1

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Specifically, in Cervino the Fifth District at least recognized (even if only

implicitly) that a trial court's ruling on a rule 3.850 motion becomes fmal and

appealable once that motion is fully resolved. 785 So. 2d at 632 ("Cervino would

of course be free to appeal once the trial court disposes of his motion in its

entirety"). The court's error, however, was its belief that the resentencing that the

trial court ordered when it partially granted the rule 3.850 motion in that case

constituted "future action on Cervino's motion." Id. (emphasis added).

The court was clearly wrong. The resentencing did not represent further

action on Cervino's motion; it instead represented further action in Cervino's

underlying criminal prosecution. The First District has held that a resentencing is a

de novo proceeding. See Slocum, 95 So. 3d at 913; Jones v. State, 35 So. 3d 69, 70

(Fla. 1st DCA 2010). But even if that is not accurate-and a resentencing is instead

merely a continuation of the original criminal prosecution-it is obvious that a

resentencing, unlike the proceedings on a rule 3.850 motion, is a part of the criminal

prosecution and is not a civil proceeding. So, for that reason, the decision in Cervino

was unquestionably wrong."

" The arguments in this brief would almost certainly apply equally to proceedingsunder rule 3.851 of the Florida Rules of Criminal Procedure, the capital counterpartto rule 3.850. But those arguments may or may not apply to proceedings under rule3.800, given that the history and purposes of rule 3.800 differ somewhat from rules3.850 and 3.851. See generally Jackson v. State, 983 So. 2d 562, 570-74 (Fla. 2008);see also Johnson v. State, 961 So. 2d 195, 196-98 (Fla. 2007); State v. Rudolf, 821So. 2d 385, 386 (Fla. 2d DCA 2002). Taylor takes no position on any issues

4841-1249-2564.1

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But Tavlor went even further afield. In that decision, the Fifth District

expressly declined to ascertain the finality of an order disposing of a rule 3.850

motion by reference to the final adjudication of that motion. Instead, the court

"focused on whether further judicial labor was contemplated" in the "entire cause

between the parties." 96 So. 3d at 992 (emphasis in original). The court therefore

obliterated the well established distinction between the civil action embodied within

the proceedings under a rule 3.850 motion and the underlying criminal case. Its

reasoning in that regard is intellectually and jurisdictionally indefensible.

In large part, the Fifth District based its decisions in Cervino and Taylor on

the policy against piecemeal appeals. Taylor, 96 So. 3d at 993; Cervino, 785 So. 2d

631-32. And that is admittedly an important policy--but it does not trump long

settled jurisdictional principles or well established case law defining the distinctions

between civil postconviction proceedings and proceedings in the underlying criminal

prosecution.

Nor, of course, is it even remotely remarkable that a single case could give

rise to multiple orders that are each deemed final and appealable for appellate

jurisdictional purposes. Indeed, that scenario arises routinely in civil cases. For

example, postjudgment awards of costs and attorneys' fees are treated as-and

appealed as-final, appealable orders. See, e.g., Hastings v. Osius, 104 So. 2d 21,

concerning orders entered on rule 3.800 motions-and this court obviously does notneed to reach any issues of that nature in this case.

4841-1249-2564.1

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22 (Fla. 1958); Saye v. Pieschacon, 750 So. 2d 759, 761 (Fla. 1st DCA 2000);

Janelli v. Pagano, 492 So. 2d 796, 796-97 (Fla. 2d DCA 1986); see also Westgate

Miami Beach. Ltd. v. Neuport Operating Corp., 55 So. 3d 567, 574-77 (Fla. 2010);

Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 47 (Fla. 2009).

As this court has observed, orders of that nature are "incident to the merits of

the original case." Caulfield v. Cantele, 837 So. 2d 371, 375 (Fla. 2002). They are

independently final and appealable because "[w]here an order after judgment is

dispositive of any question, it becomes a final post decretal order. To the extent that it

completes the judicial labor on that portion of the cause after judgment, it becomes

final as to that portion and should be treated as a fmal judgment." Id. (quoting

Clearwater Fed. Savings & Loan Ass 'n v. Sampson, 336 So. 2d 78, 79 (Fla. 1976)).

The rationale here is substantially the same. Under Florida law, the civil

proceedings on Taylor's Rule 3.850 Motion were independent of the criminal

prosecution of him, including his resentencing. Because it conflated-and failed to

recognize the distinctions between--the two, the Fifth District reached the wrong

conclusion on the question of whether the Rule 3.850 Order was final and

appealable. It was. The Fifth District's dismissal of Taylor's appeal from that order

was therefore erroneous as a matter of law, and its decision should accordingly be

484b1249-2564.1

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quashed."

2. The Fifth District's Decision is Inconsistent With thisCourt's Own Postconviction Jurisprudence

In addition to the foregoing, the Fifth District's decision in this case also

conflicts with this court's own postconviction jurisprudence in the capital arena. That

inconsistency provides a further reason for quashing the Fifth District's decision.

Specifically, in capital cases, this court permits appeals by the State when a

trial court grants a postconviction motion and vacates a death sentence; this court

does not require a new sentencing hearing to take place-or a new sentence to be

imposed-before the order on the postconviction motion is deemed final and

appealable. See, e.g., Herring v. State, 76 So. 3d 891, 892 (Fla. 2011) (order vacating

death sentence on motion filed under rule 3.851, appealed before life sentence

imposed); State v. Michael, 530 So. 2d 929, 930 (Fla. 1988) (order vacating death

sentence and ordering new sentencing hearing on motion filed under rule 3.850,

appealed before new sentencing hearing took place).

is The Fifth District's decision also cannot be sustained on the alternative groundthat "Taylor's notice of appeal of his resentencing arguably constituted anabandonment of his motion for rehearing." Taylor, 96 So. 3d at 993 n.l. The FifthDistrict's statement in that regard begs the question. If Taylor's notice of appeal fromhis resentencing did not encompass the Rule 3.850 Order as well-and it did not-then that notice of appeal could not have constituted an abandonment of the pendingmotion for rehearing directed to the Rule 3.850 Order. The case that the Fifth Districtcited, Cabrera v. State, 623 So. 2d 825 (Fla. 2d DCA 1993), is clearlydistinguishable because that case involved a defendant who did appeal from anorder denying his rule 3.850 motion while a motion for rehearing directed to thatorder was still pending. Id. at 826.

4841-1249-2564.1

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Orders of that nature in capital cases are no different conceptually and

jurisdictionally-and no more (or less) final and appealable-than the Rule 3.850

Order that the trial court entered in Taylor's case. In both instances, the proceedings

on the postconviction motion have been concluded, but further proceedings are

contemplated in the underlying criminal case. Yet this court, in capital cases, has

properly and consistently recognized that those additional proceedings are not

necessary to render final and appealable the order disposing of the postconviction

motion. The same principle squarely applies here; the Rule 3.850 Order in Taylor's

case was final and appealable, and the Fifth District's conclusion to the contrary was

erroneous as a matter of law.

3. The Fifth District's Decision Would Have Disastrous PolicyImplications for the State of Florida

An additional reason for quashing the Fifth District's decision arises from the

fact that it would have horrendous policy implications for the State of Florida.

Indeed, the necessary consequences of the Fifth District's view would be so

disastrous that Taylor would actually be somewhat surprised if the State, upon

reflection, actually seeks to defend the decision below.

Specifically, if (as the Fifth District held) an order disposing of a rule 3.850

motion is not final or appealable until after the completion of any further judicial

proceedings that the order necessitates in the underlying criminal case, then that

principle would not be restricted merely to situations (such as the one presented here)

4841-1249-2564 1

3 3

in which the further judicial labor consists solely of a resentencing. Instead, that

principle would logically and necessarily apply as well to all further judicial labor

required in the underlying criminal case by an order disposing of a rule 3.850 motion.

For example, if a trial court granted relief with respect to an inmate's

convictions-necessitating a new trial on one (or all) of the charges that were brought

against that individual-the Fifth District's view would render the State unable to

appeal that order until after the new trial had taken place. But the new trial, of course,

might produce an acquittal-which would prevent an appeal by the State for Double

Jeopardy reasons. See, e.g., State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988); State v.

Creighton, 469 So. 2d 735, 740 (Fla. 1985), recededfrom in part on other grounds,

Amendments to Fla. R. App. P., 696 So. 2d 1103, 1104 (Fla. 1996); State v.

Rygwelski, 899 So. 2d 498, 503 (Fla. 2d DCA 2005); see generally United States v.

Wilson, 420 U.S. 332, 335-53 (1975), overruled in part on other grounds, United

States v. Scott, 437 U.S. 82, 94-101 (1978).

And if that occurred, the State would never have the ability to obtain appellate

review of the order granting postconviction relief to the inmate. As attractive as such

a rule of law might be to the incarcerated population of this state and to the criminal

defense bar, it presumably would not be palatable to the State-or to the courts. As

such, the Fifth District's view surely cannot be an accurate statement of Florida law.

4841A249-2564.1

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4. The Fifth District's Decision Would Create Bad AppellatePolicy Because of the Different Rules and ProceduresGoverning Appeals in Postconviction Proceedings andAppeals in Traditional Criminal Proceedings

Additional policy-based reasons exist for disapproving the Fifth District's

conclusion in this case. Among the most compelling are the terrible consequences

that the Fifth District's decision would create in the realm of Florida appellate

practice.

For example, appeals in a defendant's underlying criminal case are plenary in

nature and are governed by rule 9.140 of the Florida Rules of Appellate Procedure.

Among other things, that rule governs appeals by a defendant from: (1) judgments

adjudicating guilt; (2) unlawful or illegal sentences; and (3) sentences. See Fla. R.

App. P. 9.140(b)(1)(A), (E), (F). And, similarly, that rule also governs appeals by the

State from orders: (1) imposing an unlawful or illegal sentence; (2) imposing a

sentence outside the range permitted in the sentencing guidelines; and (3) imposing

sentences outside the range recommended by the sentencing guidelines. See Fla. R.

App. P. 9.140(c)(1)(M), (N).

In appeals under rule 9.140, the parties generally enjoy the full panoply of

appellate procedures typically available in a plenary appeal, including: (1) a full

record; (2) the ability to prosecute a cross-appeal; (3) full briefing; and (4) possible

oral argument. See Fla. R. App. P. 9.140(b)(4), (c)(1)(K), (c)(3), (f), (g); see

4841-1249-2564.1

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generally Fla. R. App. P. 9.140(a) ("Appeal proceedings in criminal cases shall be as

in civil cases except as modified by this rule").

Appeals of orders disposing of motions for postconviction relief under rule

3.850, however, are governed by an entirely different rule-rule 9.141 of the Florida

Rules of Appellate Procedure. See Fla. R. App. P. 9.141(b). Under rule 9.141, the

procedures are much different-and more summary in nature-than appeals under

rule 9.140. For example, when a rule 3.850 motion is summarily granted or denied

without an evidentiary hearing: (1) only a limited record (which is not paginated or

indexed) is forwarded to the appellate court; (2) no briefs are required; (3) an

appellee is not required to file anything at all unless the court orders otherwise; and

(4) oral argument is rarely granted. See Fla. R. App. P. 9.141(b)(2)(A), (B), (C).

The Fifth District's decision in this case would theoretically require an inmate

such as Taylor to prosecute an appeal that is governed by both rule 9.140 and rule

9.141-the former with respect to Taylor's resentencing and the latter with respect to

the ruling on Taylor's Rule 3.850 Motion. And, in a different case, the same scenario

could confront the State as well. But such an appellate beast is currently unknown to

Florida law-and there is no reason for this court to authorize the creation of such a

confusing monster.16

16 The Fifth District's decision also creates uncertainty with respect to the time forthe State to file a notice of appeal in the type of "hybrid" appeal that that court hasimplicitly mandated by its decision in this case. In proceedings under rule 9.140,

4841-1249-2564.1

36

And this is not merely an academic concern that would be of interest only to

those fascinated by the intricacies of appellate practice, procedure, and jurisdiction.

On the contrary, it has dramatic, "real life" consequences.

Perhaps most notably, the Fifth District's decision will generate uncertainty in

an area of law that is currently reasonably clear-the constitutional right to the

appointment of counsel in appellate proceedings. Specifically, right now the law is

relatively clear: (1) that an indigent criminal defendant has a constitutional right to

appointed counsel in a direct appeal from a conviction or sentence"; but (2) that such

an individual has no absolute constitutional right (at least outside the capital context)

to appointed counsel in appeals from orders on motions for postconviction relief."

the State has 15 from the date an order is rendered within which to file a notice ofappeal. See Fla. R. App. P. 9.140(c)(3). But the State has 30 days to appeal inproceedings under rule 3.850. See Fla. R. Crim. P. 3.850(i). Presumably, under theFifth District's view, a notice of appeal filed on days 16 through 30 by the Statewould be timely with respect to rule 9.141 issues but untimely with respect to rule9.140 issues. But that is merely a guess on the part of Taylor's counsel; the FifthDistrict gave no guidance on that question.

See, e.g., Vaughn v. State, 888 So. 2d 679, 681 (Fla. 3d DCA 2004); Davis v.State, 768 So. 2d 1208, 1210 (Fla. 2d DCA 2010); Ford v. State, 575 So. 2d 1335,1337 (Fla. 1st DCA 1991); see generally Douglas v. California, 372 U.S. 353, 354-58 (1963).

See, e.g., State v. Weeks, 166 So. 2d 892, 895-97 (Fla. 1964); Melton v. State, 56So. 3d 868, 872 n.14 (Fla. 1st DCA 2011); Prince v. State, 40 So. 3d 11, 12 (Fla.4th DCA 2010); Mann v. State, 937 So. 2d 722, 726-27 (Fla. 3d DCA 2006).

4841-1249-2564.1

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But the Fifth District's decision in this case now calls these well settled

principles into doubt-or at least creates serious questions as to how those principles

are to be applied in the future.

If the Fifth District is right-and inmates such as Taylor must, for example,

prosecute an appeal from the denial of postconviction relief in the same proceeding in

which they appeal a resentencingdoes that mean that public defenders and other

appointed appellate counsel of this state will now be required to brief and argue an

inmate's postconviction claims on appeal at the same time that they argue issues that

would otherwise be encompassed solely within a plenary appeal under rule 9.140? Or

will be the presence of an order denying postconviction relief in conjunction with a

resentencing order cause some trial judges to deny to inmates altogether the services

of appointed counsel? Or will public defenders or other appointed counsel file initial

briefs limited solely to rule 9.140 issues and leave it to the inmates themselves to

brief any rule 9.141 issues-leading to appeals in which two initial briefs are filed on

behalf of a single appellant?19

These questions (and undoubtedly others as well) become necessary to answer

only if this court approves the Fifth District's decision. But the very fact that that

19 Cf ÊOgan v. State, 846 So. 2d 472, 475 (Fla. 2003) ("The defendant has no right. . . to partially represent himself and, at the same time, be partially represented bycounsel" (quoting Sheppard v. State, 391 So. 2d 346, 347 (Fla. 5th DCA 1980(citations omitted)), recededfrom in part, Sheppard v. State, 17 So. 3d 275, 281-82(Fla. 2009).

4841-1249-2564.1

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decision gives rise to those questions in the first place-and creates the need for

those answers-further illustrates the Fifth District's analytical error here. Its

decision should therefore be quashed.

D. TAYLOR IS INDEPENDENTLY ENTITLED TO RELIEFBECAUSE OF THE CIRCUIT COURT'S VIOLATION OF ITSLEGAL DUTY TO ADVISE TAYLOR ACCURATELY OF HISAPPELLATE RIGHTS

An independent reason--unrelated to the certified conflict-also exists for

quashing the Fifth District's decision in this case. It arises from the undisputed fact

(assuming the Fifth District was correct in its decision) that the trial court expressly

misinformed and misadvised Taylor of his appellate rights, despite an unambiguous

legal duty requiring the trial court to do otherwise. If, as the Fifth District concluded,

the trial court made an error in what it said to Taylor about his appellate rights, the

consequences of that error should not be visited upon Taylor. In holding otherwise,

the Fifth District erred. Its decision should therefore be quashed, irrespective of how

(or even whether) this court resolves the certified conflict. At least three independent

approaches to that question each leads to that same conclusion. Each is separately

discussed below.

L The Trial Court's Alleged Error in Misinforming Taylor ofHis Appellate Rights Required the Fifth District to TreatTaylor's Appeal as Timely Filed

Under this court's precedent, the Fifth District was not permitted simply to

dismiss Taylor's appeal as untimely, when it was undisputed that the alleged

4841-1249-2564.1

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untimeliness was occasioned solely by Taylor's reliance upon alleged erroneous

information that the trial court provided to him concerning his appellate rights with

respect to the Rule 3.850 Order. On the contrary, the Fifth District was required to

treat Taylor's appeal as timely filed under the circumstances presented here.

Rule 3.850 provides, in pertinent part, as follows:

(i) Appeals. An appeal may be taken to the appropriate appellatecourt from a fmal order addressing a motion under this rule. Allfinal orders addressing a motion under this rule shall include astatement that the party has the right to appeal within 30 days ofrendition of the final order. All nonfinal orders addressingmotions under this rule shall include a statement that "this orderis a nonfinal, nonappealable order."

Fla. R. Crim. P. 3.850(i) (emphasis added).

Consistent with this rule, the trial court's Rule 3.850 Order in this case

included the following statement: "The Defendant is advised that he may file an

appeal in writing within thirty (30) days from the date of rendition of this Order."

R:2:205. And, of course, despite the Fifth District's ultimate conclusion that the Rule

3.850 Order was actually "a nonfinal, nonappealable order," that order nowhere

included the statement required by rule 3.850(i) saying "that 'this order is a nonfinal,

nonappealable order '" See R:2:204-05.

Because the trial court itself characterized the Rule 3.850 Order as a final

order, it is hardly surprising that Taylor, an unsophisticated inmate unschooled in the

law, took that court at its word and proceeded accordingly. In that regard, he relied

4841-1249-2564.1

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upon and followed rule 3.850(h) by filing a timely motion for rehearing directed to

the Rule 3.850 Order on April 15, 2009. R:2:206-13. That rule provides as follows:

(h) Rehearing. The party may file a motion for rehearing of anyfinal order addressing a motion under this rule within 15 days ofthe date of service of the final order. A timely motion forrehearing shall toll finality of any final order addressing a motionunder this rule.

Fla. R. Crim. P. 3.850(h).

It was only years later-when the Fifth District issued its decision in this case

on August 10, 2012-that Taylor learned that he apparently should not have listened

to, or relied upon, the trial court's words. And the price for doing so was the

complete loss of an appellate remedy to which Taylor was entitled as a matter of

right. Under the circumstances presented here, "the result is abhorrent." Landry v.

State, 666 So. 2d 121, 129 (Fla. 1995) (Wells, J., concurring). The failure here was

not on the part of Taylor; it was on the part of the trial judge and the State, and it is

they, not Taylor, who should bear the responsibility for that failure.

As this court said in State ex rel. Shevin v. District Court ofAppeal, 316 So. 2d

50 (Fla. 1975): "Rule 3.850 grants a right of appeal to a movant who has received an

adverse ruling. This right is rendered useless if the movant is not informed of its

existence and of the time limitation governing its utilization." Id. at 51 (emphasis

added). In that case, a life-sentenced defendant sought to appeal an order denying his

motion for postconviction relief under rule 3.850. Id. The State moved to dismiss the

4841-1249-2564.1

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appeal as untimely. In response, the defendant "conceded that his appeal was not

timely filed, but alleged that the untimeliness was due to State action since he was

not advised of his right to appeal the denial of his Rule 3.850 Motion." Id.

The Third District denied the State's motion to dismiss, and the State sought,

through a petition for a writ of prohibition in this court, to bar the Third District

from continuing to exercise jurisdiction over the defendant's appeal. Id. This court

described "[t]he principal issue to be decided" as "whether a prisoner who has filed

a motion under Rule 3.850 is entitled to be notified of both the right to appeal a

denial of the requested relief and of the accompanying time limitation." Id.

(emphasis added). As previously noted, this court held that the defendant's right to

appeal "is rendered useless if the movant is not informed of its existence and of the

time limitation governing its utilization." Id. This court therefore denied the State's

prohibition petition and stated that the Third District had "correctly treated the

appeal as one timely filed." Id.

The same result should obtain here-and for the same reasons. As Justice

Wells said in his concurring opinion in Landrv:

The responsibility for this failure must be bome by the trial courtand counsel who represented the State. They are charged with theduty to know and apply the rules. The administration of justice isdependent upon the trial court and counsel for the Statecompetently and faithfully fulfilling this duty.

4841-1249-2564.1

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Judges and attorneys who lack an understanding or knowledge ofrules of procedure or of a decision of this Court which had beenrendered several years before the trial, or who ignore rules ordecisions of this Court cause this type of severe failure in thejudicial system.

Id. at 129-30.2°

The integrity of the judicial system in Florida is damaged immeasurably by

outcomes such as the one that occurred in the Fifth District here. If the Fifth District

was correct m its decision, then the fault for the loss of Taylor's appellate rights

belongs entirely with the trial court and its failure to follow rule 3.850(i). Under those

circumstances, as this court instructed in Shevin, the Fifth District should have treated

Taylor's appeal as timely filed. Its failure to do so was error.

2. In the Alternative, the Fifth District Should Have TreatedTaylor's Notice of Appeal as Premature

A different analytical approach leads to the conclusion that Taylor's notice

of appeal was actually premature. That conclusion flows from a well settled line of

cases in the area of administrative appeals.

2° Landry admittedly presented an extreme situation. In that case, this court wasforced to order the discharge of a death-sentenced murderer because of the trialcourt's flagrant disregard of the rules governing speedy tnak 666 So 2d at 125.129 In this case, Taylor does not mtend to 3imilarly enticize or question thecompetence of- either the tnal judge or the State's counsel in Taylor'spostconviction proceedings. The Fifth District concluded that they made a mistakein not adhering to Cervino. Taylor believes, of course, that Cervino was wronglydecided, but he does not dispute that it was binding precedent in the Fifth Districtat the time that the Rule 3.850 Order in Taylor's case was rendered. Taylor has noreason to believe that the failure by the trial court and the State's counsel to followCervino was anything other than a simple oversight.

4841-1249-2564.1

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Specifically, there are numerous reported cases involving: (1) administrative

proceedings in which a governing statute or rule required an administrative body to

render a final order informing the parties of their appellate rights or right to judicial

review-and the times within which those rights must be exercised; (2) orders did

not comply with those requirements; and (3) arguments that a party seeking to

appeal from, or obtain judicial review of, those orders did not do so on a timely

basis.

Those arguments are consistently rejected, and a clear body of law has

emerged in which the Florida courts have held that the appeals or requests for

judicial review were actually premature due to the deficiencies in the underlying

orders. See, e.g., Gardner v. School Bd. of Glades County, 73 So. 3d 314, 317 (Fla.

2d DCA 2011); McDaniel v. Florida Keys Aqueduct Auth., 699 So. 2d 843, 843

(Fla. 3d DCA 1997); Florida League of Cities, Inc. v. State Admin. Comm'n, 586

So. 2d 397, 413-15 (Fla. 1st DCA 1991); Henry v. State Dep't ofAdmin., 431 So.

2d 677, 679-80 (Fla. 1st DCA 1983); Wahlquist v. School Bd. ofLiberty County,

423 So. 2d 471, 473 (Fla. 1st DCA 1982); Sterman v. Florida State Univ. Bd. of

Regents, 414 So. 2d 1102, 1103-04 (Fla. 1st DCA 1982); see also § 120.569(1),

Fla. Stat.

This principle applies to notices of appeal that would otherwise be untimely

if a proper order-containing the correct language about a party's appellate

4841-1249-2564.1

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rights-had been entered. See, e.g., Latin Express Serv., Inc. v. State Dep't of

Revenue, 660 So. 2d 1059, 1060 (Fla. 1st DCA 1995). As explained by the Latin

Express court:

This court has repeatedly recognized that a notice of agencyaction that fails to inform a party of its right to seekadministrative review and the relevant time limits associatedtherewith is inadequate to trigger commencement of theadministrative process. Likewise, we have recognized thatwhere an agency's order fails to comply with the statutoryrequirements that a party be advised of its rights to judicialreview and the time limits associated with invoking that right,the order departs from the essential requirements of law. In thatcircumstance, we quashed the defective order, and remanded tothe agency with directions to enter a new final order complyingwith the statute.

Although the order in this case adequately apprised appellant ofits right to institute an action in circuit court or anadministrative forum, it did not, as required by section120.59(4), apprise appellant of its alternative right to seek

review in this court pursuant to section 120.68, and the timelimit associated with seeking such review. On this basis, we

conclude that rather than being untimely, appellant's notice ofappeal is in fact premature, in that the agency has not yetentered a final order in compliance with the requirements of theAdministrative Procedure Act.

Id. (emphasis added).

The same principles apply here. If, as the Fifth District concluded, the trial

court misinformed Taylor about his appellate rights with respect to the Rule 3.850

Order in violation of rule 3.850(i), then the trial court not only committed error, it

departed from the essential requirements of law. See id.; Denson v. Sang, 491 So.

4841-1249-2564.1

45

2d 288, 289 (Fla. 1st DCA 1986). Under Latin Express and the other cases cited

above, the Fifth District therefore should have concluded that the time for Taylor

to appeal from the Rule 3.850 Order was never properly triggered. The Fifth

District should therefore have treated Taylor's notice of appeal as premature and

allowed the circuit court to render a proper order that operated to vest appellate

jurisdiction in the Fifth District. See Fla. R. App. P. 9.110(l). Its failure to do so

was error.

3. At the Very Least, the Fifth District Should Have ProvidedTaylor With the Opportunity to Demonstrate HisEntitlement to a Belated Appeal

Consistently with Shevin, the district courts of this state have routinely held

that an inmate is entitled to a belated appeal if an order denying his or her motion

for postconviction relief under rule 3.850 fails to contain the required statement

regarding the inmate's appellate rights. See, e.g., Arizmendi v. State, 894 So. 2d

309, 309 (Fla. 2005); Pippin v. State, 616 So. 2d 1182, 1183 (Fla. 1st DCA 1993);

Darden v. State, 588 So. 2d 275, 275 (Fla. 2d DCA 1991); see also Holley v. State,

859 So. 2d 568, 568 (Fla. 5th DCA 2003).

But the Fifth District summarily denied even that relief to Taylor here-

without even providing him with an opportunity to brief or argue (or submit evidence

on) whether he should be granted a belated appeal. In that regard, the court said only

that "that by waiting more than two years to pursue the matter further, Taylor lost his

4841-1249-2564.1

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ability to seek a belated appeal pursuant to Florida Rule of Appellate Procedure

9.141(c), which might have been available as a remedy for any confusion as to the

appeal deadline had Taylor acted more diligently." Taylor, 96 So. 3d at 993.

The Fifth District's conclusory resolution of Taylor's ability to seek a belated

appeal-when that issue had not even been presented to the court-was certainly

inappropriate, and its ultimate conclusion was flatly inconsistent with Shevin. The

two-year limitation to which the Fifth District referred is not absolute. On the

contrary, the governing rule provides as follows:

(A) A petition for belated appeal shall not be filed more than 2years after the expiration of time for filing the notice of appealfrom a final order, unless it alleges under oath with a specificfactual basis that the petitioner was unaware a notice of appealhad not been timelyfiled or was not advised ofthe right to appealor was otherwise prevented from timely filing the notice ofappeal due to circumstances beyond the petitioner's control, andcould not have ascertained such facts by the exercise ofreasonable diligence. In no case shall a petition for belated appealbe filed more than 4 years after the expiration of time for filingthe notice of appeal.

Fla. R. App. P. 9.141(c)(5)(A) (emphasis added).

The Fifth District seemingly made a perfunctory factual finding that Taylor

could not make the necessary showing to excuse his failure to seek a belated appeal

within two years after his resentencing order was rendered. But that factual finding, if

not wrong and insupportable on its face under Shevin, should (at the very least) have

first been preceded by, and entailed, the receipt of actual evidence-ideally through

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the appointment of the lower tribunal as a commissioner to take evidence and make

findings of fact." See, e.g., Coyle v. City ofFt. Lauderdale, 785 So. 2d 1254, 1255

(Fla. 4th DCA 2001).

In summary, under the circumstances presented here, the proper rule is

therefore the one embodied in Shevin: Taylor's appeal of the Rule 3.850 Order

should have been treated as timely. In the alternative, this court should conclude: (1)

that Taylor's notice of appeal was actually premature; or (2) that further proceedings,

evidentiary in nature, are necessary to determine whether Taylor is entitled to a

belated appeal.

CONCLUSION

For the foregoing reasons, Taylor respectfully requests that this court quash

the decision of the district court and remand this case to that court with instructions

to consider Taylor's appeal on its merits.

/s/ John R. HamiltonJohn R. HamiltonFlorida Bar No. 0774103ihamilton@foley.comFoley & Lardner LLPPost Office Box 2193Orlando, Florida 32802-2193Telephone: (407) 423-7656Facsimile: (407) 648-1743Attorneys for Petitioner

Taylor suggests that it was indeed wholly inconsistent with Shevin for the FifthDistrict to say that his purported lack of diligence consisted of his reliance upon(and belief of) what the trial court expressly told him about his appellate rights.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has

been furnished by electronic mail this 11th day of June, 2013, to: Bonnie Jean

Parrish, counsel for appellee, at crimappdab@myfloridalegal.com.

/s/ John R. HamiltonJohn R. Hamilton

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this petition complies with the font

requirements of rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

/s/ John R. HamiltonJohn R. Hamilton

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