HENRY T. BLACKSTOCK, APPELLANT,
v.
NEVA J. BLACKSTOCK, APPELLEE
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The court dismissed an appeal for lack of jurisdiction because the notice of appeal was filed one day late, but dismissed without prejudice to allow the trial court to grant relief from judgment under Florida Rule of Civil Procedure 1.540(b).
An appeal must be dismissed for lack of jurisdiction when the notice of appeal is filed outside the 30-day period, even if the appellant relied on the date appearing on the order rather than the actual rendition date.
[1] An appeal dismissed for lack of jurisdiction due to untimely notice of appeal may be dismissed without prejudice to allow the trial court to grant relief from judgment un…
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Join FLexlaw to unlock all legal intelligenceHenry Blackstock received an order signed and dated March 21, 2000, and filed his notice of appeal on April 20, 2000. The appellee showed that the ord…
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PER CURIAM.
Henry Blackstock appeals an order which was signed and dated by the trial judge on March 21, 2000. His notice of appeal was filed on April 20, 30 days after-wards and apparently the final day to timely invoke this court’s jurisdiction. Ap-pellee moves to dismiss the appeal for lack of jurisdiction, showing that the order was, in fact, rendered by filing with the clerk on March 20, 2000, and therefore the notice of appeal was one day late. Mr. Blackstock responds in opposition, arguing that he should be entitled to rely on the date appearing on the order. As our jurisdiction was not timely invoked, we dismiss the appeal for lack of jurisdiction. The dismissal, however, is without prejudice to appellant’s right to move the trial court for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b). See Snelson v. Snelson, 440 So. 2d 477 (Fla. 3rd DCA 1983); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980) (dismissing appeal without prejudice to this remedy where appellant alleged order to be appealed was not received until after the 30 days for filing notice of appeal had expired). This will allow the trial court to resolve any material factual disputes, including whether appellant had notice of the actual rendition date of the order. Depending on its findings of fact and conclusions of law, the court may find it appropriate to re-enter the order so that Mr. Blackstock can timely appeal. Snelson.
APPEAL DISMISSED WITHOUT PREJUDICE.
MINER, ALLEN and WEBSTER, JJ, concur.
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Davis v. Est. OF Horace B. Davis, 903 So. 2d 246 (Fla. 1st DCA 2005)…PER CURIAM. Having considered the appellant’s response to this Court’s March 21, 2005 or [*247] der, the appeal is hereby DISMISSED as untimely. See Fla. Prob. R. 5.042(b); Blackstock v. Blackstock, 776 So. 2d 359 (Fla. 1st DCA 2001). BARFIELD, DAVIS and HAWKES, JJ., concur.…
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Cary v. Clay Cnty. Sheriff's Off. & Clay Cnty., 36 So. 3d 857 (Fla. 1st DCA 2010)…PER CURIAM. DISMISSED. Blackstock v. Blackstock, 776 So. 2d 359 (Fla. 1st DCA 2001); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983). WOLF, BENTON, and PADOVANO, JJ., concur.…
Authorities Cited
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)