Savino v. State, 397 So. 2d 1236

PER CURIAM.

We previously dismissed this appeal from an order denying post conviction relief because it appeared the Notice of Appeal was untimely filed. On motion for reconsideration appellant has demonstrated that his Notice of Appeal was actually timely filed with the clerk of the lower court. Accordingly, we grant the motion for reconsideration and vacate the order of dismissal entered April 2, 1981.

We now consider appellant’s motion for post conviction relief and the trial court’s order denying same, together with appellant’s various motions filed in this court. It is clear that appellant is not entitled to post conviction relief because the question now presented was also presented to the trial court prior to a plenary appeal which appellant perfected in Cases # 78-1502 and # 78-1504. The question presented here was not raised in those appeals, but should have been. Adams v. State, 380 So.2d 423 (Fla.1980); Mitchell v. State, 381 So.2d 760 (Fla. 5th DCA 1980).

The order appealed from is affirmed.

DOWNEY, MOORE and BERANEK, JJ., concur.

Case Details

Case Name: Savino v. State

Court Name: District Court of Appeal of Florida

Date Published: May 20, 1981

Citations: 397 So. 2d 1236; No. 81-145

Docket Number: No. 81-145

Court Abbreviation: Fla. Dist. Ct. App.