SPIVEY v. STATE (2021)

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”).

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.

Per Curiam.

Kelsey and Winokur, JJ., concur; Makar, J., concurs with opinion.