# Third District Court of Appeal

State of Florida

Opinion filed August 17, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D15-1981

Lower Tribunal No. 06-2197

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### Mark David Ivey,

Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the

Circuit Court for Miami-Dade County, Stephen T. Millan

, Judge.

Mark David Ivey

, in proper person.

Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney

General, for appellee.

Before ROTHENBERG, LAGOA, and LOGUE, JJ.

ON MOTION TO DISMISS

LAGOA, J.Appellant, Mark David Ivey (“Ivey”), seeks review of the trial court’s order

denying his motion to correct an illegal sentence under Florida Rule of Criminal

Procedure 3.800. Appellee, the State of Florida (the “State”), moves to dismiss

this appeal for lack of jurisdiction because the notice of appeal was not timely

filed. Because Ivey filed his notice of appeal eight days after the deadline

prescribed in Florida Rule of Criminal Procedure 3.850(k) and Florida Rule of

Appellate Procedure 9.110(b), we grant the State’s motion to dismiss.

In Ivey v. State

, 47 So. 3d 908 (Fla. 3d DCA 2010), this Court vacated

Ivey’s conviction for vehicular homicide and leaving the scene of a fatal accident

based on double jeopardy grounds, and affirmed his DUI manslaughter conviction

and sentence. The mandate issued on December 9, 2010. On April 3, 2015, Ivey

filed a Rule 3.800 motion to correct the illegal sentence, which the trial court

denied. This order, now challenged by Ivey, was rendered on July 10, 2015, when

it was filed with the clerk of the lower tribunal. See Fla. R. App. P. 9.020(i)

(defining “rendition”). The deadline for filing the notice of appeal was thirty days

after the date the order was rendered, which was August 10, 2015. 1 See Fla. R.

Crim. P. 3.850(k); Fla. R. App. P. 9.110(b). Ivey’s notice of appeal was not filed

until August 18, 2015, when he tendered a copy of the notice to a corrections

official pursuant to the “mailbox rule.” See Fla. R. App. P. 9.420(a)(2)(A) (“The

1 Because the thirtieth day fell on Sunday, August 9, 2015, the notice was due on

Monday, August 10, 2015.

2document shall be presumed to be filed on the date the inmate places it in the

hands of an institutional official for mailing

. . . .”).

As the Supreme Court of Florida explained in Haag v. State

, 591 So. 2d 614

(Fla. 1992),

[u]nder the mailbox rule, a petition or notice of appeal filed by a pro

se inmate is deemed filed at the moment in time when the inmate

loses control over the document by entrusting its further delivery or

processing to agents of the state. Usually, this point occurs when the

inmate places the document in the hands of prison officials.

Id. at 617; accord Joseph v. State

, 157 So. 3d 546, 547-48 (Fla. 1st DCA 2015);

Raysor v. Raysor

, 706 So. 2d 400, 401 (Fla. 1st DCA 1998). This version of the

mailbox rule applies only to pro se petitioners, like Ivey, who are incarcerated.

See Haag

, 591 So. 2d at 617. At the time his notice of appeal was filed, Ivey was

an inmate at the Dade Correctional Institution, which maintains a system for

outgoing inmate mail. When an inmate presents a document for mailing to a

corrections officer, that officer places a stamp on the document, and the inmate is

required to initial the stamp in order to verify the date the document was tendered

to the corrections officer. Here, the stamp on Ivey’s notice of appeal bears his

initials, “MDI,” and the date of August 18, 2015, which was eight days after the

deadline for filing his notice of appeal. Because the certificate of service on Ivey’s

notice of appeal demonstrates it was tendered to a corrections officer more than

thirty days following rendition of the order, we dismiss the appeal as untimely

3filed. See Jackson v. State

, 64 So. 3d 684 (Fla. 2d DCA 2011) (dismissing appeal

as untimely where defendant in postconviction proceedings served notice of appeal

on thirty-first day following rendition of order).

DISMISSED.

4