Barnes v. State , 2004 Fla. App. LEXIS 18824 ( 2004 )

ORFINGER, J.

Douglas Barnes filed a notice of appeal on September 16, 2004, seeking review of an order rendered July 23, 2004, which denied his Rule 3.850 motion for post-conviction relief. As the notice was filed more than thirty days after rendition of the appealed order, Barnes was ordered to show cause why the untimely appeal should not be dismissed for lack of jurisdiction.

In response, Barnes contends that “the rain caused the law library to be closed for quite a number of days. The [sic] they ran out of ‘Extension of Time’ forms. Noone [sic] seems to want to make copies.” He also alleges that he received bad advice, and sent the “the form” to the lower court where he had been sentenced.

During the thirty-day time period for filing a timely notice of appeal, the Sumter County Court and the Fifth Circuit Court were closed on August 13, 2004, due to Hurricane Charley. The notice is still untimely even taking that day into consideration. Barnes does not allege that he was unable to mail his notice in a timely manner due to weather conditions or the closing of the prison mail facility. In fact, he does not allege how long or when the law library was closed due to rain. Consequently, we dismiss this appeal for lack of jurisdiction, without prejudice to allow Barnes to file a petition under oath, alleging facts showing that he is entitled to a belated appeal.

DISMISSED.

PLEUS and TORPY, JJ., concur.