Opinion
No. A-341.
January 13, 1959.
Petition for review from the Circuit Court, Duval County, W.A. Stanley, J.
Carl G. Swanson, Jacksonville, for petitioner.
Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.
Petition for writ of certiorari was filed in this court September 25, 1958, seeking review of an order of the Circuit Court of Duval County entered March 28, 1958, affirming a judgment of conviction rendered by the Criminal Court of Record of Duval County. We dismissed the petition because it was not filed within the 60-day period allowed by Florida Appellate Rule 4.5(c), 31 F.S.A., and on October 22, 1958 we denied a petition for rehearing in the premises.
Florida Appellate Rule 4.5(c) (6) authorizes the filing in the Supreme Court of a petition for certiorari to review any decision of the district courts of appeal which is in direct conflict with the decision of another district court of appeal or of the Supreme Court, and further provides:
"No such petition for certiorari will be considered or granted unless petitioner shall have filed petition for rehearing with the district court of appeal and prior to the denial of such petition shall have filed in the district court of appeal a notice of intention to petition the Supreme Court for writ of certiorari, which notice of intention shall operate to stay the mandate of the district court of appeal until expiration of time for filing petition for certiorari or if such petition for certiorari be filed, until such time as the same is disposed of by the Supreme Court."
The notice required by the rule was not filed within the period specified and our mandate issued pursuant to our order denying rehearing.
Approximately three weeks thereafter the petitioner filed in this court a notice of intention to apply to the Supreme Court for writ of certiorari to review our disposition of the cause, and the state has moved to strike the notice because it is not timely filed.
This cause has been finally adjudicated in this court and the notice in question, being untimely filed, is a nullity and inoperative to stay the mandate of this court. For the reason stated the pleading should be stricken from the record and an order will be entered accordingly.
CARROLL, DONALD K., J., and LEWIS E. CLAY, Associate Judge, concur.