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704 So. 2d 164

Docket No. 97-2706.

Alterisio v. State

Michael ALTERISIO, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 12, 1997.

Rehearing Denied January 22, 1998.

District Court of Appeal of Florida · decided 1997-12-12

Cited by 7 later decisions — most recently January 2014

7 state decisions

Relies on 591 So. 2d 614 - State v. McClain

Good law ✅— No negative treatment on recordhow we know

Decided 1997-12-12

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¶1*165 Michael Alterisio, Lake City, pro se.

¶2No Appearance for Appellee.

¶3ANTOON, Judge.

¶4Michael Alterisio, the defendant, appeals the denial of his motion for postconviction relief which was filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We dismiss this appeal because the notice of appeal was filed more than thirty days after rendition of the trial court's order.

¶5The issue presented in this case is whether the defendant tolled the thirty-day period for filing an appeal by filing a motion for rehearing. The trial court's order denying relief contains a certificate showing June 13, 1997 as the date of service. The defendant filed his motion for rehearing on July 7, 1997. The motion was denied on September 9, 1997. Pursuant to rule 3.850(g), a motion for rehearing must be filed within fifteen days of the date of service of an order denying postconviction relief. See Fla. R.Crim. P. 3.850(g). If the motion is timely filed, the time for appeal is tolled. See Fla. R.App. P. 9.020(h). The defendant's motion for rehearing was not notarized and did not contain a certificate of service. Consequently, this court cannot determine whether the defendant was entitled to the benefit of the mail-box rule established in Haag v. State,591 So.2d 614 (Fla.1992) (motion is considered filed when placed in the hands of prison officials.)

¶6This court issued an order to show cause to the defendant why this appeal should not be dismissed as untimely. In his unsworn response, the defendant failed to tender any evidence establishing when his motion for rehearing was given to prison officials. Rather he merely asserted that delivery of the motion to prison officials was timely. Thus, the defendant has failed to meet his burden of proving that the motion for rehearing was timely presented to prison officials. See Haag v. State,591 So.2d at 617, n. 3.

¶7APPEAL DISMISSED.

¶8GRIFFIN, C.J., and GOSHORN, J., concur.

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