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Calculating the Time to Appeal in Florida

March 1, 2017

Defense Digest, Vol. 23, No. 1, March 2017

by Courtney B. Shapero, Esquire

Key Points:

  • The time to appeal an order must be calculated correctly.
  • The consequences of miscalculating the time within which to appeal are severe.

 

You are in court at a hearing on a motion that, depending on the outcome, may give your client the right to appeal. The judge issues an order from the bench. Your client is considering whether to file an appeal, and he has only 30 days to do so. However, it takes a week before the judge signs the order and another two days before the order is entered on the docket. When does your appeal need to be filed? Keep in mind that if you calculate incorrectly, the consequences are severe. In Amos v. Reich, 2016 Fla. App. LEXIS 19266 (Fla.Dist.Ct.App. 3d Dist. Dec. 28, 2016), the Third District Court of Appeals provided an answer to this question.

Florida Rule of Appellate Procedure 9.110(b) sets forth that an appeal may be brought “[a]fter filing a notice… with the clerk of the lower tribunal within 30 days of rendition of the order [to be reviewed].” This statute turns on the meaning of the word “rendition” or, in its action term, “render.” Once this meaning is established for a particular case, the timing of the appeal can be calculated and a timely filing made with the applicable court. The Third District Court of Appeal recently held that “Florida Rule of Appellate Procedure 9.020(i) provides that ‘[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.’ An order is rendered when all these three conditions are met.’” Amos v. Reich, 2016 Fla. App. LEXIS 19266 (Fla.Dist.Ct.App. 3d Dist. Dec. 28, 2016).

It has long been held by the Third District Court of Appeal that if an appeal is not timely filed, it will be dismissed. In Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla.Dist.Ct.App. 3rd Dist. 2003), the court held that, “[b]ecause this notice was filed 31 days after the hearing officer rendered her decision (one day late), the County moved to dismiss the appeal.” In Miami-Dade County, an order was granted on May 13, 2002, against a hearing officer rendering a final decision that the respondents had illegally maintained a commercial vehicle. As a result of this final decision, the respondents filed a notice of appeal on June 13, 2002. However, this notice was filed 31 days after the order was signed by the clerk of the lower court. Thus, the court found the respondents’ appeal untimely under Rule 9.110(c). Florida Rule of Appellate Procedure 9.110(c) reads similarly to 9.110(b), but specifically states, “[i]n an appeal to review final orders of lower administrative tribunals, the appellant shall file the notice with the clerk of lower administrative tribunal within 30 days of rendition of the order to be reviewed, and shall also file a copy of the notice, accompanied by any filing fees prescribed by law with the clerk of the court.” See, Fla. R. App. P. 9110(c).

Similarly, in First Nat’l Bank v. Florida Unemployment Appeals Com., 461 So.2d 208, 209 (Fla.Dist.Ct.App. 1st Dist. 1984), the court dismissed the appeal because the proper notice was not filed with the court within the 30-day period as required by Florida Rule of Appellate Procedure 9.110(b). This rule requires the notice of appeal to be filed—not merely mailed—within 30 days of rendition of the order to be reviewed. See also, Hawks v. Walker, 409 So.2d 524, 525 (Fla.Dist.Ct.App. 5th Dist. 1982) (holding a timely notice of appeal must be filed within 30 days in order for this court to have jurisdiction; late filing is a defect no one can correct, not even the court); Dibble v. Dibble, 377 So.2d 1001, 1003-1004 (Fla.Dist.Ct.App. 3d Dist. 1979) (holding that the appeal was filed in an untimely manner because it was not filed within the applicable period after rendition of the order to be reviewed, as required by Fla. R. App. P. 9.110(b)); Crapp v. Criminal Justice Stds. & Training Comm’n, 753 So.2d 787 (Fla.Dist.Ct.App. 3d Dist. 2000) (holding that an appellate court cannot exercise jurisdiction over a cause where a notice of appeal has not been timely filed).

Likewise in Amos, the appellant, Amos, appealed a final judgment regarding his property foreclosure, and the appellee, Reich, moved to dismiss this appeal as untimely. Specifically, Reich asserted that the order on appeal was rendered on October 17, 2016. However, the order on appeal was not filed with the clerk until October 19, 2016, and thus not rendered until that day. Nevertheless, Amos failed to file his appeal until November 21, 2016, 32 days after the clerk had filed the order. On December 28, 2016, the Third District Court of Appeal issued a ruling regarding the untimely appeal. The court held that the appeal “was untimely and lacked jurisdiction to entertain the appeal.” See, Amos v. Reich, 2016 Fla. App. LEXIS 19266, at *2.

There is a clear trend toward holding that the rendition of an order is based upon the date the clerk files the final order of the lower court and that an appeal must be filed within 30 days of such date. If an appeal is not filed within the properly calculated 30 days from the final order, the appellate court will dismiss the case for lack of jurisdiction. There is no cure for late filing for an appeal. Dismissal is the one and only consequence.

*Courtney is an associate in our Fort Lauderdale, Florida office. She can be reached at 954.832.3966 or cbshapero@mdwcg.com.

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Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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