Ivey v. State , 2016 Fla. App. LEXIS 12417 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed August 17, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1981
Lower Tribunal No. 06-2197
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Mark David Ivey,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Stephen T. Millan, Judge.
Mark David Ivey, in proper person.
Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney
General, for appellee.
Before ROTHENBERG, LAGOA, and LOGUE, JJ.
ON MOTION TO DISMISS
LAGOA, J.
Appellant, Mark David Ivey (“Ivey”), seeks review of the trial court’s order
denying his motion to correct an illegal sentence under Florida Rule of Criminal
Procedure 3.800. Appellee, the State of Florida (the “State”), moves to dismiss
this appeal for lack of jurisdiction because the notice of appeal was not timely
filed. Because Ivey filed his notice of appeal eight days after the deadline
prescribed in Florida Rule of Criminal Procedure 3.850(k) and Florida Rule of
Appellate Procedure 9.110(b), we grant the State’s motion to dismiss.
In Ivey v. State, 47 So. 3d 908 (Fla. 3d DCA 2010), this Court vacated
Ivey’s conviction for vehicular homicide and leaving the scene of a fatal accident
based on double jeopardy grounds, and affirmed his DUI manslaughter conviction
and sentence. The mandate issued on December 9, 2010. On April 3, 2015, Ivey
filed a Rule 3.800 motion to correct the illegal sentence, which the trial court
denied. This order, now challenged by Ivey, was rendered on July 10, 2015, when
it was filed with the clerk of the lower tribunal. See Fla. R. App. P. 9.020(i)
(defining “rendition”). The deadline for filing the notice of appeal was thirty days
after the date the order was rendered, which was August 10, 2015.1 See Fla. R.
Crim. P. 3.850(k); Fla. R. App. P. 9.110(b). Ivey’s notice of appeal was not filed
until August 18, 2015, when he tendered a copy of the notice to a corrections
official pursuant to the “mailbox rule.” See Fla. R. App. P. 9.420(a)(2)(A) (“The
1Because the thirtieth day fell on Sunday, August 9, 2015, the notice was due on
Monday, August 10, 2015.
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document shall be presumed to be filed on the date the inmate places it in the
hands of an institutional official for mailing . . . .”).
As the Supreme Court of Florida explained in Haag v. State, 591 So. 2d 614(Fla. 1992),
[u]nder the mailbox rule, a petition or notice of appeal filed by a pro
se inmate is deemed filed at the moment in time when the inmate
loses control over the document by entrusting its further delivery or
processing to agents of the state. Usually, this point occurs when the
inmate places the document in the hands of prison officials.
Id. at 617; accord Joseph v. State, 157 So. 3d 546, 547-48 (Fla. 1st DCA 2015);
Raysor v. Raysor, 706 So. 2d 400, 401 (Fla. 1st DCA 1998). This version of the
mailbox rule applies only to pro se petitioners, like Ivey, who are incarcerated.
See Haag, 591 So. 2d at 617. At the time his notice of appeal was filed, Ivey was
an inmate at the Dade Correctional Institution, which maintains a system for
outgoing inmate mail. When an inmate presents a document for mailing to a
corrections officer, that officer places a stamp on the document, and the inmate is
required to initial the stamp in order to verify the date the document was tendered
to the corrections officer. Here, the stamp on Ivey’s notice of appeal bears his
initials, “MDI,” and the date of August 18, 2015, which was eight days after the
deadline for filing his notice of appeal. Because the certificate of service on Ivey’s
notice of appeal demonstrates it was tendered to a corrections officer more than
thirty days following rendition of the order, we dismiss the appeal as untimely
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filed. See Jackson v. State, 64 So. 3d 684 (Fla. 2d DCA 2011) (dismissing appeal
as untimely where defendant in postconviction proceedings served notice of appeal
on thirty-first day following rendition of order).
DISMISSED.
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