WILSON v. STATE (2020)

On Motion for Rehearing

On April 22, 2020, this Court issued an opinion that treated appellant John J. Wilson, Jr.'s pro se appeal as a petition for writ of mandamus and denied same as moot. Wilson v. State, 45 Fla. L. Weekly D977 (Fla. 3d DCA Apr. 22, 2020) (“April Opinion”). After issuance of our April Opinion, Wilson, again pro se, sought an extension of time to file a motion for rehearing. On May 13, 2020, we entered an order granting Wilson's motion for an extension of time and, in our order, we gave Wilson forty-five days in which to file any post-decisional motions directed to our April Opinion.

Notwithstanding our May 13, 2020 order, we inadvertently issued our mandate on June 2, 2020. On June 10, 2020, Wilson filed a motion for rehearing directed toward our April Opinion (“Rehearing Motion”). Then, on June 24, 2020, presumably after receiving a copy of this Court's inadvertently issued June 2, 2020 mandate, Wilson filed a motion requesting that we treat his Rehearing Motion as timely filed. Upon receipt of Wilson's June 24, 2020 motion, on July 6, 2020, we withdrew our mandate as having been inadvertently entered. We grant Wilson's June 24, 2020 motion requesting that we treat his Rehearing Motion as timely, grant Wilson's motion for rehearing, withdraw our April Opinion, and replace our April Opinion with the following.

On or about January 15, 2019, Wilson filed in the lower court a pro se Florida Rule of Criminal Procedure 3.800 post-conviction motion that presumably asserted his sentence was illegal. A review of the lower court docket reflects that the lower court clerk received this motion on or about January 25, 2019.

On August 21, 2019, Wilson filed with this Court a pro se notice of appeal, entitled “Notice of Appeal and Statement of Judicial Acts to Be Reviewed Pursuant to Rule 9.200(A)(3): The Underlying Motion for this Appeal, Submitted Pursuant to Rule 3.800(a), Was Failed to Be Recorded or Docketed By the Clerk of Court.”

We ordered the State to respond. The State's response indicated that, although the docket entry of May 21, 2019 tersely shows that Wilson's rule 3.800 motion was denied, no written order adjudicating Wilson's January 25, 2019 post-conviction motion had been rendered by the trial court.

After filing its response, the State filed, and we granted, two motions to supplement the record on appeal. Together, these supplemental filings showed: (i) on May 21, 2019, the trial court set Wilson's rule 3.800 motion for hearing on June 11, 2019; (ii) a partial transcript of the June 11, 2019 hearing indicates that the trial court did not rule on Wilson's motion; and (iii) at a February 13, 2020 status conference, the trial court entered an order denying Wilson's motion, nunc pro tunc to June 11, 2019.

We, therefore, treat Wilson's August 2019 notice of appeal as a petition for writ of mandamus. See Fla. R. App. P. 9.040(c). Considering the trial court's written order, which was filed on February 26, 2020, we deny Wilson's petition as moot. Given the procedural confusion surrounding this case, if Wilson wishes to appeal the lower court's February 26, 2020 order, he may do so no later than thirty days from the date of this order.

So ordered.

PER CURIAM.