DR. WILLIAM J. MAYERS, PETITIONER,
v.
THE BANKERS LIFE COMPANY, RESPONDENT
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The court held that the circuit court erred in dismissing the appeal without determining when the notice of appeal was initially received by the clerk's office, as timely payment of the filing fee is not jurisdictional.
Petitioner's notice of appeal was stamped as filed on November 3, 1981, which was one day after the deadline. However, affidavits indicated the notice…
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PER CURIAM.
This petition for certiorari comes to us from an order of a three-judge panel of the circuit court which dismissed petitioner’s appeal from county court. It is undisputed that the last day for filing the notice of appeal was November 2, 1981. The circuit judges found that the notice of appeal was filed November 3, 1981, and was thus untimely.
Initially, we note that the notice itself has “November 3 filed” stamped on it. However, there were several affidavits filed below which asserted that the notice of appeal was actually delivered to the clerk’s office on October 30,1981, but was not filed until later because the filing fee did not originally accompany the notice. Williams v. State, 324 So. 2d 74 (Fla.1975), holds that timely payment of the filing fee is not jurisdictional. In the order dismissing the appeal, the circuit court made no finding of when the notice of appeal was initially received by the clerk’s office.1 Therefore, the petition for certiorari is granted and the cause is remanded for proceedings consistent herewith.
CERTIORARI GRANTED.
SCHEB, A.C.J., and RYDER and DAN-AHY, JJ., concur. . Another issue, not addressed in the order, is whether the notice of appeal was delivered to the proper court clerk’s office. See LampkinAsam v. District Court of Appeal, 364 So. 2d 469 (Fla.1978). However, we note that the notice of appeal has a filed stamp indicating it was filed with Sal Geraci, Clerk of Circuit Court, and two other stamps indicating it was filed in the office of Sal Geraci, Clerk of the County Court, both on November 3, 1981. The county court was the proper court.
Cases With Similar Vibessemantic neighbors from the corpus
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Weintraub v. Seymour Alter, 482 So. 2d 454 (Fla. 3d DCA 1986)…t is refused by the said clerk, the notice is deemed filed on the date it is so tendered — notwithstanding the appearance of a later filing date which is stamped by the said clerk on the face of the notice. See, e.g., Mayers v. The Bankers Life Co., 421 So. 2d 785 (Fla. 2d DCA 1982); Cook v. Walgreen Co., 399 So. 2d 523, 524 (Fla. 2d DCA 1981); Knee v. Smith, 313 So. 2d 117, 118 (Fla. 1st DCA 1975), cert. denied, 330 So. 2d 726 (Fla. 1976); accord Graves v. General Insurance Co., 381 F. 2d 517 (10th Cir.1967)…
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Sanchez v. Maynard F. Swanson, Jr., 481 So. 2d 481 (Fla. 1986)…county court, and because the same person serves as the clerk of the county and circuit courts for Pinellas County, we will treat the notice as mis-stamped and as properly filed in a branch office of the county court. See Mayers v. Bankers Life Co., 421 So. 2d 785 (Fla. 2d DCA 1982).…
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Parnell Johnson v. Louie L. Wainwright, 489 So. 2d 1166 (Fla. 1st DCA 1986)…and sentences. This court reversed a denial of the motion solely on the issue of appellant’s claim of ineffective assistance of counsel, and remanded with directions that the trial court hold an eviden-tiary hearing on that issue. Johnson v. State, 421 So. 2d 785 (Fla. 1st DCA 1982). Following evidentiary hearings held on December 13, and December 18,1982, the trial court denied appellant’s 3.850 motion. On June 25, 1984, appellant filed a “petition for writ of habeas corpus or in the alternative, belated…
Authorities Cited
- Williams v. State, 324 So. 2d 74 (Fla. 1975)
- Lampkin-Asam v. Dist. Court OF Appeal, 364 So. 2d 469 (Fla. 1978)