Slocum v. State, 1D11–6585.
| Decision Date | 04 September 2012 |
| Docket Number | No. 1D11–6585.,1D11–6585. |
| Citation | 95 So.3d 911 |
| Parties | Lawrence Dewayne SLOCUM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
Lawrence Dewayne Slocum appeals an order denying in part the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss as untimely his appeal from the order finally deciding his claims for collateral relief.
Collateral proceedings began with a motion challenging convictions and sentences under Rule 3.850, and ended on July 27, 2011, when the postconviction court entered the order granting the motion in part and denying it in part: The court denied all relief as to the convictions, but set aside the sentences. In addition to disposing of all claims set out in the motion, the circuit court's order appointed the Office of Regional Counsel to represent the movant as the defendant in the original case when he appeared for resentencing.
After resentencing in the original case, which occurred on October 19, 2011, counsel perfected an appeal by notice of appeal filed on November 7, 2011. Then, on November 17, 2011, Mr. Slocum filed another notice of appeal pro se, which reflected an intention to appeal, not only the resentencing, but the order of July 27, 2011, as well, insofar as it had denied collateral relief (although the notice of appeal referenced an apocryphal order purportedly denying collateral relief on October 19, 2011). New appointed counsel filed a brief raising only one issue, an issue going, not to the resentencing, but to the postconviction court's summary denial of a claim stated in the Rule 3.850 motion.
When we ordered Mr. Slocum to show cause why his appeal from denial of collateral relief should not be dismissed as untimely, counsel argued that the November 7 notice of appeal
created jurisdiction to review not only the resentencing necessitated by the partial grant of relief on Slocum's motion for postconviction relief, but also the July 27, 2011, partial denial of postconviction relief. See King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001) ().
But King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001), does not control here. Our holding 1 in King applies only when the appeal is both timely as to the resentencing and timely as to the order denying the motion for postconviction relief.
The July 27, 2011 order denying relief in part and granting relief in part conclusively resolved all of Mr. Slocum's postconviction claims, and finally concluded collateral proceedings.2
An order denying in part and granting in part relief ... marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes.... [I]f the part of the motion which is granted requires subsequent action on the principal case under attack, such as resentencing, [there is] no jurisdictional impediment imposed by the appeal from the postconviction motion to prevent that action.
Cooper v. State, 667 So.2d 932, 933 (Fla. 2d DCA 1996). We have held that “resentencing [in the original case] is a de novo proceeding,” Jones v. State, 35 So.3d 69, 70 (Fla. 1st DCA 2010), legally discrete from the collateral proceeding.
Because no notice of appeal was filed within thirty days of the order disposing of the appellant's postconviction claims, and no issue has been raised regarding the resentencing, we are without jurisdiction to hear this appeal. For that reason, we dismiss the appeal.
Dismissed.
1. The trial court summarily denied all but one of the claims in King's 3.850 motion, but granted relief on one claim and imposed...
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