Funchess v. Moore

766 So.2d 348 (2000) Aubrey Barker FUNCHESS, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent. No. 1D00-1205. District Court of Appeal of Florida, First District. July 6, 2000. Aubrey Barker Funchess, pro se, petitioner. Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for respondent. PER CURIAM. Aubrey Barker Funchess seeks a belated appeal from an order which denied his motion for postconviction relief. According to petitioner, he did not receive a copy of the order until after the time for filing a notice of appeal had expired. His factual allegations are made under oath and supported by the mailroom records of the correctional institution where he is serving his sentence. In response to an order to show cause, the state suggests that the appeal should be dismissed without prejudice to the petitioner's right to move the trial court for relief from judgment. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th *349 DCA 1983). As that remedy, however, is predicated on Florida Rule of Civil Procedure 1.540(b), which is not applicable to this collateral criminal proceeding, see Florida Rule of Civil Procedure 1.010, and because the Florida Rules of Criminal Procedure do not contain a counterpart to Rule 1.540(b), we reject the state's suggestion. As the response otherwise does not attempt to refute the petitioner's entitlement to relief, we grant the petition. Aubrey Barker Funchess is hereby granted a belated appeal from the order of December 13, 1999, which denied postconviction relief in Gulf County case number 96-23. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the trial court to be treated as a notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). PETITION GRANTED. ALLEN, LAWRENCE and BENTON, JJ., concur.