KIM M. RAYSOR, APPELLANT,
v.
JOHN T. RAYSOR, APPELLEE

Fla. 1st DCA | 1998-02-23
No. 97-3226
BOOTH, JOANOS and VAN NORTWICK, JJ., concur.
706 So. 2d 400 Florida District Court of Appeal, First District (1998) Positive Treatment
Cited by 99 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Kim Raysor appealed a non-final venue order but mailed her notice of appeal instead of hand-delivering it to the trial court clerk. Although the notice was placed in the mail on July 30, 1997 (before the August 4 deadline), it was not received and filed by the clerk until August 5, 1997, after the deadline expired. The appellate court dismissed the appeal for lack of jurisdiction, holding that mailing does not satisfy the filing requirement.


Holding

The appeal is dismissed for lack of jurisdiction because the notice of appeal was not timely filed. A document is deemed 'filed' only when it is delivered to and received by the proper official. Mailing a notice of appeal or placing it in a post office box within the deadline does not satisfy the filing requirement; actual receipt by the clerk within the deadline is required. The mailbox rule for incarcerated pro se litigants does not apply to voluntarily mailing documents.


Headnotes

[1] A notice of appeal is deemed filed when it is delivered to the proper official and received by that official to be kept on file.

[2] Merely mailing a notice of appeal or placing it in a post office box within the required time period is insufficient to establish timely filing.

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Key Quotes

“a paper is deemed to be 'filed' when it is delivered to the proper official and received by that official to be kept on file”

Establishes the legal definition of 'filing' that requires actual receipt by the clerk, not merely mailing

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Facts & Procedural History

Kim M. Raysor sought to appeal a non-final order on venue rendered July 3, 1997. The deadline to file a notice of appeal was Monday, August 4, 1997. O…

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Opinion of the Court
PER CURIAM.

ON APPELLANT’S RESPONSE AND SUPPLEMENTAL RESPONSE TO ORDER TO SHOW CAUSE

PER CURIAM.

Kim M. Raysor seeks review of a non-final order relating to venue rendered by the trial court on July 3, 1997. The last day for invoking this court’s jurisdiction by filing a notice of appeal with the clerk of the lower tribunal was Monday, August 4, 1997. See Fla. R.App. P. 9.130(b) and 9.420(e). On Wednesday, July 30, 1997, appellant placed her notice of appeal in the U.S. mail addressed to the post office box maintained by the clerk of the trial court. The notice was not filed with the clerk, however, until the morning of Tuesday, August 5, 1997. We therefore directed appellant to show cause why the appeal should not be dismissed for lack of jurisdiction.

In response to this order, appellant offered to the court two affidavits detailing the clerk’s routine practice concerning the re trieval of mail from its post office box,1 and argues that, based on this practice, there is a period of time each day when mail can be placed in the clerk’s post office box and not retrieved until the following day. Using this possibility as a foundation, appellant speculates that her notice of appeal was placed in the clerk’s post office box on August 4, but was not -retrieved by and filed with the clerk’s office until August 5. Based upon this speculation, appellant urges us to conclude that her notice of appeal was in fact timely filed. We reject this contention for two reasons.

First, the facts alleged by appellant fall far short of establishing that the notice of appeal was actually delivered to the clerk’s post office box on August 4. In fact, the facts are equally, or perhaps more, susceptible of the conclusion that delivery did not occur until August 5. Secondly, even if we were to accept appellant’s supposition as true, we would conclude that she nonetheless failed to timely “file” the notice of appeal with the clerk of the trial court. Generally, a paper is deemed to be “filed” when it is delivered to the proper official and received by that official to be kept on file. Blake v. R.M.S. Holding Corp., 341 So. 2d 795 (Fla. 3d DCA 1977). In order to be timely, a notice of appeal must be filed with the appropriate court within the required time, and merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient. See Coca Cola Foods v. Cordero, 589 So. 2d 961 (Fla. 1st DCA 1991).

The notable exception to the general principle that a document must actually be received by the clerk within the allotted time is the so-called “mailbox.rule,” under which the pleading of an incarcerated pro se litigant is deemed to be “filed” at the time it is placed in the hands of prison officials for mailing. However, this rule was adopted in large part because, unlike other litigants, prisoners have no choice but to “entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers.” Haag v. State, 591 So. 2d 614, 616 (Fla.1992)(quoting Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988)). In contrast, the appellant here voluntarily elected to subject herself to these vagaries, and she is bound to accept the consequences of that election.

By publishing this opinion, our intent is not to single out counsel for appellant, who by all appearances mailed the notice of appeal in a manner that under ordinary circumstances would have resulted in timely receipt by the clerk. On the contrary, given the relative frequency with which situations such as this occur, our purpose is to reiterate the point that one who foregoes the opportunity to personally deliver time critical documents to the clerk, and instead elects to entrust those documents to postal authorities or some other delivery mechanism, does so at his or her own peril.

For the foregoing reasons, the appeal is DISMISSED for lack of jurisdiction.

BOOTH, JOANOS and VAN NORTWICK, JJ., concur. . We grant appellant’s motion requesting that we review these affidavits in support of her allegation that the notice of appeal was timely filed.


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Citator

Cited By (50 total)

  • …erely evidence of filing but is not essential to the validity of the document. See Bituminous Casualty Corp. v. Clements, 148 Fla. 175, 3 So. 2d 865, 866 (1941). Most of the district courts have reached the same holding. See, e.g., Raysor v. Raysor, 706 So. 2d 400, 401 (Fla. 1st DCA 1998) (“Generally, a paper is deemed to be ‘filed’ when it is delivered to the proper official and received by that official to be kept on file.”); Weintraub v. Alter, 482 So. 2d 454, 457 (Fla. 3d DCA 1986) (“A notice of appeal is…
  • Joseph v. State, 157 So. 3d 546 (Fla. 1st DCA 2015)
    …ard Cnty. Mental Health Div. & Risk Mgmt., 672 So. 2d 24, 26 (Fla.1996) (“It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights.”); Raysor v. Raysor, 706 So. 2d 400, 401 (Fla. 1st DCA 1998) (“In order to be timely, a notice of appeal must be filed with the appropriate court within the required time, and merely mailing the notice or having the notice placed in a post office box within the required time period is…
  • …PER CURIAM. DISMISSED. Fla. RApp. P. 9.100(c)(1). See Raysor v. Raysor, 706 So. 2d 400 (Fla. 1st DCA 1998); Coca-Cola Foods v. Cordero, 589 So. 2d 961 (Fla. 1st DCA 1991). ERVIN, BARFIELD and BENTON, JJ., CONCUR.…

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