Slocum v. State
2012 Fla. App. LEXIS 11873
| Fla. Dist. Ct. App. | 2012Background
- Collateral proceedings under Fla. R. Crim. P. 3.850 challenged convictions and sentences.
- July 27, 2011 order granted some relief but denied others and appointed counsel for resentencing.
- October 19, 2011 resentencing occurred in the original case.
- November 7, 2011 notice of appeal filed from the postconviction order; November 17, 2011 pro se appeal with broader scope.
- New counsel filed a brief on a single issue related to the postconviction denial in part.
- Court dismissed the appeal as untimely, holding no jurisdiction absent a timely notice of appeal from the postconviction order and no timely issue on resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Slocum's appeal timely from the postconviction order? | Slocum argues jurisdiction exists to review resentencing and the partial denial. | State argues no timely notice of appeal from the postconviction order. | Appeal untimely; no jurisdiction to review postconviction denial. |
| Does King v. State apply to redesignate the appeal as direct from a new sentence? | King supports consolidating challenges in one case. | King only applies when the appeal is timely for both resentencing and postconviction denial. | King does not control; timeliness governs here. |
| Is there jurisdiction given the July 27, 2011 order that partially granted and partially denied relief? | Partial grant implies potential subsequent action in principal case. | Finality of the order ends collateral proceedings. | Order is final for appellate purposes; no jurisdiction to hear this appeal. |
| Is resentencing a de novo, legally discrete proceeding affecting appellate timing? | Resentencing can be reviewed under the broader postconviction appeal. | Resentencing is separate but not salvageable without timely postconviction appeal. | Resentencing is de novo and separate from the postconviction appeal; not salvageable here. |
| What is the effect of not filing a notice of appeal within 30 days of the order? | No timely notice; appellate jurisdiction lacking. |
Key Cases Cited
- King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001) (better course to redesignate and consolidate appeals in postconviction posture)
- Cooper v. State, 667 So.2d 932 (Fla. 2d DCA 1996) (finality of mixed grant/denial order; resentence may follow)
- Jones v. State, 35 So.3d 69 (Fla. 1st DCA 2010) (resentencing is a de novo proceeding; legally discrete)
- Jordan v. State, 81 So.3d 595 (Fla. 1st DCA 2012) (order granting 3.800(a) motion with separate hearing held final)
- State v. Huerta, 38 So.3d 883 (Fla. 3d DCA 2010) (time for appeal from resentencing varies by controlling rule)