Floyd Spivey v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledMarch 26, 2021
Docket1D21-0508
StatusPublished
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Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-0508
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FLOYD SPIVEY,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition for Belated Appeal—Original Jurisdiction.
March 26, 2021
PER CURIAM.
The petition for belated appeal is denied on the merits. See
Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989) (holding that
access to a prison law library is not “necessary to prepare and
transmit a simple notice of appeal” and lack of that access did not
demonstrate “a right to [a] belated appeal”).
KELSEY and WINOKUR, JJ., concur; MAKAR, J., concurs with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., concurring with opinion.
Floyd Spivey claims that he received the final order denying
his Rule 3.850 motion with only twelve days left to file a notice of
appeal and that then-existing restrictions on access to the prison
law library made it impossible to do so. He says that limited access
was permitted after grievances were filed, but only if inmates
demonstrated a court ordered deadline was pending and that the
lack of access was beyond his control and interfered with his ability
to file a timely notice. Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA
1989), which precludes a belated appeal under these
circumstances, appears to be based on the belief that access to a
law library is unnecessary to prepare and file a notice of appeal,
which requires only a sheet of paper, a pen, an envelope and a
stamp, i.e., items presumably available to inmates without law
library access. Spivey does not claim that the prison law library is
the only location where the forms, envelopes, and postage for
preparing and mailing a notice of appeal and other legal filings are
available. If that were the case, it would be difficult to justify
applying Jordan to deny a belated appeal.
____________________________
Floyd Spivey, pro se, Petitioner.
Ashley Moody, Attorney General, Tallahassee, for Respondent.
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