Dunbar v. State

Third District Court of Appeal
State of Florida

Opinion filed April 19, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D17-19
Lower Tribunal No. 14-10513
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Wayne Dunbar,
Petitioner,

vs.

The State of Florida,
Respondent.

A Case of Original Jurisdiction— Mandamus.

Wayne Dunbar, in proper person.

Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant
Attorney General, for respondent.

Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.

SCALES, J.
 On January 3, 2017, Petitioner Wayne Dunbar filed with this Court the

instant petition seeking a writ of mandamus. We dismiss the petition.

Last year, this Court affirmed without elaboration Dunbar’s conviction for

possession of a firearm by a convicted felon. Dunbar v. State, 185 So. 3d 1248

(Fla. 3d DCA 2016) (table). In August of 2016, Dunbar filed a motion to correct

his sentence pursuant to Florida Rule of Criminal Procedure 3.850. The State

responded on August 24, 2016. The following day, the trial court adjudicated

Dunbar’s motion (granting his motion, in part, as to a jail credit calculation, but

otherwise denying the motion), and Dunbar appealed this order to this Court on

September 26, 2016. On April 12, 2017, this Court affirmed the decision of the

trial court in case number 3D16-2361.

Presumably unaware that the trial court, on August 25, 2016, had denied his

rule 3.850 motion, Dunbar, on September 16, 2016, filed a purported reply to the

State’s August 24, 2016 response. Rather than treating Dunbar’s reply as a motion

for rehearing1 of its August 25, 2016 order, the trial court simply struck Dunbar’s

reply2 as moot on October 5, 2016.3

1 A motion seeking rehearing of an order denying a movant’s rule 3.850 motion
must be filed within fifteen days of the service of the order. Fla. R. Crim. P.
3.850(j).
2 Both Dunbar’s reply and the trial court’s corresponding order are part of the
record in case number 3D16-2361.
3 Rule 3.850 does not contemplate a movant’s reply.

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 Dunbar then forwarded a notice of appeal to the Miami-Dade Circuit Court

in which he sought to appeal to this Court the trial court’s October 5, 2016 order

striking his reply as moot. Because the circuit court apparently did not receive this

notice of appeal, the clerk of the court did not transmit it to this Court. Thus, in the

instant case, Dunbar has petitioned this Court to issue a writ of mandamus ordering

the circuit court to transmit to this Court his appeal of the order striking his reply

as moot.

Because Dunbar’s September 16, 2016 reply was filed more than fifteen

days after the trial court’s August 25, 2016 order denying Dunbar’s rule 3.850

motion, the trial court did not err by failing to treat Dunbar’s reply as a motion for

rehearing under rule 3.850(j). Dunbar’s reply was not an “authorized and timely

motion”4 so as to authorize an adjudication by the trial court prior to this Court’s

adjudication of Dunbar’s appeal in case number 3D16-2361. Because Florida Rule

of Appellate Procedure 9.140(b) does not authorize an appeal of an order striking a

reply, this Court has no jurisdiction to review the trial court’s October 5, 2016

order. That the clerk of the circuit court did not receive or transmit Dunbar’s

purported appeal of the trial court’s October 5, 2016 order is of no consequence.

There are no grounds for this Court to issue a writ of mandamus.

Petition dismissed.

4 Fla. R. App. P. 9.020(i).

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