Kleparek v. State , 964 So. 2d 225 ( 2007 )

964 So.2d 225 (2007)

Gerald KLEPAREK, Petitioner,
v.
STATE of Florida, Respondent.

No. 4D07-1432.

District Court of Appeal of Florida, Fourth District.

August 29, 2007.

Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.

ON MOTION FOR REHEARING

PER CURIAM.

We grant, in part, petitioner's motion for rehearing and issue the following opinion.

On January 12, 2007, pursuant to the Jimmy Ryce Act, the trial court found petitioner Gerald Kleparek to be a sexually violent predator and committed Kleparek to the Department of Children and Families. Kleparek notified trial counsel that he wished to appeal, and counsel attempted to effectuate a timely appeal. However, the notice of appeal was untimely stamped by the clerk's office and was thus five days late. Kleparek filed a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). This court denied the petition on June 4, 2007 by order and Kleparek filed a timely motion for rehearing.

While Kleparek is not entitled to relief under rule 9.141(c) as the underlying Ryce proceedings are civil in nature and not criminal, Cartwright v. State, 859 So.2d 526 (Fla. 1st DCA 2003), we find that the proper vehicle is instead a petition for writ of habeas corpus seeking belated review of the lower tribunal's order. See In Interest of E.H., 609 So.2d 1289 (Fla.1992) (finding petitioner's remedy to seek belated appeal of an order terminating parental rights was through a petition for writ of habeas corpus). We therefore treat the instant petition for belated appeal as a petition for writ of habeas corpus and grant belated review of the lower court's January 12, 2007 order designating Kleparek a sexually violent predator and committing him to the Department of Children and Families.

WARNER, KLEIN and HAZOURI, JJ., concur.