CHARLES H. GUNDLAH, JR., APPELLANT,
v.
MICHAEL MOORE ET AL., FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEES
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Charles Gundlah sought review of a circuit court's denial of his petition for writ of mandamus as untimely filed. The Fourth District Court of Appeal affirmed the denial but provided an alternative remedy: dismissal without prejudice and an opportunity to seek relief in the lower tribunal through a motion to vacate and re-issue the order.
The court affirmed the denial of the mandamus petition as untimely, finding that failure to challenge a Department of Corrections order within thirty days creates a jurisdictional defect. However, the court held that where state action prevents timely filing, an appellate court may provide an alternative avenue of review through dismissal without prejudice and allow the appellant to seek relief in the lower tribunal.
[1] Failure to challenge an order of the Department of Corrections within thirty days of its rendition creates a jurisdictional defect, precluding court jurisdiction.
[2] When state action deprives a party of the ability to file a timely notice of appeal, an appellate court may provide an alternative avenue of review.
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Join FLexlaw to unlock all legal intelligence“A claimant's failure to challenge an order of the Department of Corrections within thirty days of its rendition produces a jurisdictional defect and precludes the court from exercising jurisdiction.”
Establishes that the thirty-day filing deadline is jurisdictional and its violation bars court jurisdiction.
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Join FLexlaw to unlock all legal intelligenceGundlah, an inmate in the Florida Department of Corrections, received a copy of the Department's final order only a few days before the thirty-day dea…
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STEVENSON, J.
Appellant, Charles H. Gundlah, Jr., seeks review of the circuit court’s denial of his petition for writ of mandamus as untimely. Gundlah alleges that because he was transferred between facilities, he received a copy of the Department of Correction’s final order just a few days before the thirty-day deadline to file a writ of mandamus in circuit court was to expire. Allegedly unfamiliar with the procedures to appeal, he was unable to file the writ of mandamus until after the thirty-day deadline had passed.1 We treat his appeal as a petition for writ of certiorari. See Doss v. Fla. Dep’t of Corr., 730 So. 2d 316 (Fla. 4th DCA 1999).
We find no error in the circuit court’s denial of the petition for writ of mandamus as untimely. A claimant’s failure to challenge an order of the Department of Corrections within thirty days of its rendition produces a jurisdictional defect and precludes the court from exercising jurisdiction. See § 95.11(8), Fla. Stat. (2000); Fla. RApp. P. 9.100(c).
Notwithstanding, where a state action deprives a party of the ability to file a timely notice of appeal, the appellate court, although deprived of jurisdiction over the appeal, will provide the thus-rejected appellant with an alternative avenue of review. See New Washington Heights Cmty. Dev. Conference v. Dep’t of Cmty. Affairs, 515 So. 2d 328 (Fla. 3d DCA 1987), disapproved on other grounds by Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So. 2d 24 (Fla.1996). The appropriate remedy has been to dismiss the untimely appeal without prejudice, allowing the appellant to pursue relief in the lower tribunal by motion seeking to set aside the original order and requesting that a new appealable order be entered. See Etienne v. Simco Recycling Corp., 721 So. 2d 399 (Fla. 3d DCA 1998); see also Ney v. Unemployment Appeals Comm’n, 778 So. 2d 509 (Fla. 4th DCA 2001); Dorsey v. State, 764 So. 2d 619 (Fla. 4th DCA 2000); Dep’t of Corr. v. Saulter, 742 So. 2d 368 (Fla. 1st DCA 1999). If the lower tribunal acts favorably upon such application, the appellant may timely appeal the re-entered order and thereby challenge the merits of the original adverse agency action. See Etienne, 721 So. 2d at 401. If the lower tribunal refuses to vacate the order, then the appellant may appeal the refusal to re-enter the order. See id.
Thus, we deny the petition for writ of certiorari without prejudice to Gundlah’s right to file a motion seeking to have the Secretary of the Department of Corrections vacate and re-issue the challenged decision from which he may then timely appeal.
SHAHOOD and HAZOURI, JJ., concur. . Florida Rule of Appellate Procedure 9.420(a)(2) is not applicable here since Gund-lah does not allege that he placed the writ of mandamus in the hands of an institution official for mailing on or before the last day for filing.
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Galindez v. State, 955 So. 2d 517 (Fla. 2007)…sentence of thirty years in prison. The Third District affirmed. Galindez v. State, 728 So. 2d 333 (Fla. 3d DCA 1999). Galindez then filed a motion under Florida Rule of Criminal Procedure 3.800(a), alleging scoresheet error. See Galindez v. State, 831 So. 2d 780, 780 (Fla. 3d DCA 2002). On rehearing, the district court held that Galindez’s scoresheet “erroneously reflect[ed] an assessment of 80 victim injury points” for his conviction on one of the lewd and lascivious assault counts. Id. Because “the convic…
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Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005)…ses after a jury trial. The convictions and sentences were affirmed in Galindez v. State, 728 So. 2d 333 (Fla. 3d DCA 1999). The defendant then moved for relief from the sentences under Rule 3.800, and appealed from its denial. In Galindez v. State, 831 So. 2d 780 (Fla. 3d DCA 2002), rendered on January 13, 2003, we partially reversed and remanded on the ground that the trial court had overassessed the points for penetration in preparing the guideline scoresheet. The present appeal is from a resentencing orde…
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Johnson v. Terry Hunt Constr. Co. & Superior, 878 So. 2d 1282 (Fla. 1st DCA 2004)…ounsel did not, is unavailing in light of the statutory requirement that the order be sent to claimant’s attorney and the fact that it was a state action which deprived claimant of the ability to file a timely notice of appeal. See Gundlah v. Moore, 831 So. 2d 780, 781 (Fla. 4th DCA 2002) (holding that the appropriate remedy when state action deprives a party of the ability to file a timely notice of appeal is to allow the appellant “to pursue relief in the lower tribunal by motion seeking to set aside the or…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 672 So. 2d 24 (Fla. 1996)
- New Wash. Heights Cmty. Dev. Conf. v. Dep't OF Cmty. Affairs, 515 So. 2d 328 (Fla. 3d DCA 1987)
- Doss v. Fla. Dep't OF Corr., 730 So. 2d 316 (Fla. 4th DCA 1999)
- Gaston v. State, 721 So. 2d 399 (Fla. 2d DCA 1998)
- Evelyne Etienne v. Simco Recycling Corp., 721 So. 2d 399 (Fla. 3d DCA 1998)
- Dep't OF Corr. v. Saulter, 742 So. 2d 368 (Fla. 1st DCA 1999)
- Dorsey v. State of Fla. & Michael W. Moore, 764 So. 2d 619 (Fla. 4th DCA 2000)
- McDOWELL v. State, 764 So. 2d 619 (Fla. 4th DCA 2000)
- NEY v. Unemployment Appeals Comm'n & Croom Constr. Co., 778 So. 2d 509 (Fla. 4th DCA 2001)