M.W., MOTHER OF J.W., A CHILD, APPELLANT,
v.
DEPARTMENT OF CHILDREN & FAMILIES, APPELLEE
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This case concerns a mother's attempt to appeal the termination of her parental rights after her notice of appeal was untimely filed. The court explains the procedural steps available for such situations, ultimately dismissing the current appeal for lack of jurisdiction.
The appellate court dismissed the current appeal for lack of jurisdiction because the notice of appeal was untimely. The proper avenue for the appellant is to appeal the order denying her petition for writ of habeas corpus.
[1] A trial court may vacate an order and re-enter it to allow a timely appeal when a party demonstrates they did not receive a copy of the original order.
[2] A petition for writ of habeas corpus may be used to seek relief from an untimely notice of appeal when a party did not receive a copy of the order being appealed.
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Join FLexlaw to unlock all legal intelligence“The habeas remedy set forth in E.H. is analogous to a motion for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b) which may be used when a party to a civil action seeks to excuse the untimely filing of a notice of appeal on the theory that it did not timely receive a copy of the order sought to be appealed.”
Explains the procedural analogy for excusing an untimely appeal.
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Join FLexlaw to unlock all legal intelligenceThe mother's parental rights were terminated by the circuit court, and she sought to appeal. Due to delays in appointing appellate counsel, her notice…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
On February 24, 2000, the Circuit Court for Duval County entered an order which terminated the parental rights of M.W. and which placed the child with the Department of Children and Families for adoption.
The trial court appointed an attorney to represent M.W. in an appeal to this court but counsel notified the court she was not accepting such appointments. Another attorney was then appointed to represent M.W. on appeal. As a result of the delay, however, a notice of appeal was not timely filed. Counsel explained this in response to a sua sponte show cause order which this court issued on the question of its jurisdiction. We relinquished jurisdiction to allow appellant to seek relief in the trial court through a petition for writ of habeas corpus as contemplated by In re E.H., 609 So. 2d 1289 (Fla.1992). The petition for writ of habeas corpus was denied and appellant moves this court for clarification, expressing uncertainty as to how to proceed.
The habeas remedy set forth in E.H. is analogous to a motion for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b) which may be used when a party to a civil action seeks to excuse the untimely filing of a notice of appeal on the theory that it did not timely receive a copy of the order sought to be appealed. In that circumstance, if the trial court finds the motion to be well-taken it should vacate the original order and re-enter it so that the adversely affected party may appeal. If the 1.540(b) motion is denied, that order may be appealed. See Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980).
Thus, appellant’s remedy in the matter at bar was to appeal the order denying habeas corpus relief as she has done in M.W., the Mother of J.W., a child, appellant, v. Department of Children & Families, appellee, case number 1D00-2887, which is now pending before this court. The instant appeal is hereby dismissed for lack of jurisdiction without prejudice to appellant’s right to pursue her appeal from the order which denied the petition for writ of habeas corpus.
WEBSTER, PADOVANO and BROWNING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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R.W. v. Dep't of Child. & Families, 164 So. 3d 15 (Fla. 1st DCA 2015)…e recognize that we relinquished jurisdiction to the trial court to rule on the motion for reconsideration. That, however, has no bearing on our jurisdiction to review the trial court’s ruling on the motion. See M.W. v. Dep’t of Children & Families, 769 So. 2d 513, 513-14 (Fla. 1st DCA 2000) (holding that the proper remedy to review an order entered upon relinquishment of jurisdiction in an appeal of a final judgment was to file a separate appeal); Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (Fla. 1s…
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M.W. the Mother of J.W. v. Dep't of Child. & Families, 792 So. 2d 1241 (Fla. 1st DCA 2001)…PER CURIAM. We have previously directed the appellant to file a petition for writ of habeas corpus seeking a belated appeal pursuant to In re E.H., 609 So. 2d 1289 (Fla.1992). See M.W. v. Dep’t of Children and Families, 769 So. 2d 513 (Fla. 1st DCA 2000). The appellant did file a petition with the trial court as directed. However, the petition only addressed the merits of the termination of parental rights order and briefly explained the events surrounding the untimely notice of…
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Dollar v. State, 909 So. 2d 399 (Fla. 5th DCA 2005)…to seek the proper remedy. One possibility would be to treat this petition as an appeal. A circuit court order denying a petition for writ of habeas corpus is reviewable in this court by direct appeal. See M.W. v. Department of Children & Families, 769 So. 2d 513 (Fla. 1st DCA 2000). However, the writ was not timely filed in this court. It was filed well beyond the 30-day period for filing a timely notice of appeal after the trial court denied the petition for habeas corpus. Further, the order denying the pe…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest OF E.H., 609 So. 2d 1289 (Fla. 1992)
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)