Hardy v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ARTHUR HARDY, )
)
Appellant, )
)
v. ) Case No. 2D15-5625
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed November 30, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Glenn T. Shelby, Judge.
Arthur Hardy, pro se.
SILBERMAN, Judge.
Arthur Hardy filed a timely motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 raising seven claims. The postconviction
court found the third claim to be facially insufficient and afforded Mr. Hardy sixty days to
amend, as required by rule 3.850(e). The postconviction court informed Mr. Hardy that
the order was nonfinal and that he "may not appeal until such time as a Final Order has
been rendered." See Havens v. State, 27 So. 3d 803, 804 (Fla. 2d DCA 2010) ("An
order dismissing a motion for postconviction relief that also provides leave to amend is
not a final order for purposes of appeal." (citing Christner v. State, 984 So. 2d 561, 562
(Fla. 2d DCA 2008))).
Mr. Hardy failed to timely amend his third claim. Instead, after more than
sixty days transpired, he filed a "motion for rehearing/motion for leave to amend 3.850
motion" attacking the nonfinal order. Following the postconviction court's denial of his
motion for rehearing/motion to amend, this appeal ensued.
Because the postconviction court has not yet entered a final, appealable
order disposing of each of Mr. Hardy's claims, this court lacks jurisdiction to review the
court's nonfinal order. See Herron v. State, 34 So. 3d 206, 206 (Fla. 2d DCA 2010)
(explaining that appellate courts do not have jurisdiction to review nonfinal rule 3.850
orders). On remand, the court may enter a final order denying Mr. Hardy's third claim
for failure to timely amend, see Fla. R. Crim. P. 3.850(f)(3), and disposing of the
remaining six claims on the merits.
Dismissed and remanded.
WALLACE and MORRIS, JJ., Concur.
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