PATRICK RICE, PETITIONER,
v.
CHARLES FREEMAN, RESPONDENT
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Patrick Rice petitioned for a writ of prohibition to prevent an appellate court from entertaining Charles Freeman's untimely appeal from a county court money judgment. The district court granted the petition, holding that the appeal was filed outside the 30-day jurisdictional window because the trial court's correction of a clerical error in the judgment title did not restart the appeal deadline.
The court held that the appeal was untimely and the appellate court lacked jurisdiction. The trial court's second order merely corrected a clerical error in the title and did not change the substantive rights or obligations of the parties, so it did not restart the appeal deadline. The notice of appeal was required to be filed by December 9, 2005 (30 days from the November 9 rendition date), and Freeman's December 14 filing was jurisdictionally defective.
[1] A notice of appeal filed outside the prescribed time period constitutes an irremediable jurisdictional defect.
[2] An amendment to a judgment that corrects a clerical error, such as a title, does not materially alter the judgment and does not restart the time for filing an appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under Rule 9.110, the '[flailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.'”
Establishes that failure to timely file a notice of appeal within 30 days is a jurisdictional defect that cannot be cured
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Join FLexlaw to unlock all legal intelligenceRice obtained a $2,555 money judgment against Freeman following a non-jury trial on November 7, 2005, though it was inaccurately titled 'DEFAULT FINAL…
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WELLS, Judge.
Patrick Rice petitions this court to issue a writ prohibiting the Eleventh Judicial Circuit Court Appellate Division from entertaining Charles Freeman’s appeal from a County Court money judgment. We grant the petition but withhold issuance of a writ confident that the Appellate Division will comply with this opinion.
On November 7, 2005, a final money judgment in the amount of $2,555 was entered against Freeman in . Rice’s favor. Although that judgment was entered following a non-jury trial, at which both Rice and Freeman were in attendance, the judgment was inaccurately titled “DEFAULT FINAL JUDGMENT:’ This judgment was rendered on November 9 when it was filed with the clerk of the lower tribunal.1 See Fla. R.App. P. 9.020(h) (defining rendition as “when a signed, written order is filed with the clerk of the lower tribunal” unless a timely authorized motion tolling rendition is filed).
On November 23, 2005, the County Court sua sponte entered a second final judgment, this one identical in all respects to the original November 7 judgment save the title which removed the inaccurate “default” moniker. On December 14, 2005, Freeman filed a notice of appeal from the “Corrected Final Judgment.” However this notice did not timely invoke the jurisdiction of the appellate court.
“Under Rule 9.110, the ‘[flailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Miami-Dade County v. Peart, 843 So. 2d 363, 364 (Fla. 3d DCA 2003) (quoting First Nat’l Bank in Fort Myers v. Florida Unemployment Appeals Comm’n, 461 So. 2d 208, 208 (Fla. 1st DCA 1984)); see Crapp v. Criminal Justice Standards & Training Comm’n, 753 So. 2d 787, 787 (Fla. 3d DCA 2000) (finding that an appeal from a lower administrative tribunal was untimely where the notice of appeal was filed 2 days late); Hawks v. Walker, 409 So. 2d 524, 525 (Fla. 5th DCA 1982) (finding that a notice of appeal filed two days late was untimely).
“Florida follows the majority rule that, where a judgment is amended in a material respect, the appeal time runs from the date of the amendment, provided the amendment is material, not minor or formal.” DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 631-32 (Fla. 3d DCA 2000). Thus, as explained in St. Moritz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla.1971) (quoting Fed. Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952)):
Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew.
See Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973, 974 (Fla. 4th DCA 2003).
In this regard, “[t]he question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.” St. Moritz Hotel, 249 So. 2d at 28. Here, the court’s second order did no more than correct a clerical error — the title of the judgment — and in no manner changed the rights or obligations of the parties. Accordingly, the notice of appeal had to be filed within 30 days of rendition of the original judgment, on or before December 9, 2005. Because the notice of appeal was filed after that date, the Circuit Court lacks jurisdiction to consider the appeal at issue.
We thus grant the petition but withhold actual issuance of the writ, trusting it unnecessary in light of the statements made herein.
. No post trial or post judgment motions were filed.
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City OF Palm BAY & City of Palm Bay Code v. Palm BAY Greens, LLC, 969 So. 2d 1187 (Fla. 5th DCA 2007)…tled to prohibition relief. We herewith issue the writ. WRIT GRANTED. PALMER, C.J., GRIFFIN and LAWSON, JJ., concur. . Prohibition is the appropriate remedy to prevent a lower tribunal from improperly exercising jurisdiction. See Rice v. Freeman, 939 So. 2d 1144 (Fla. 3d DCA 2006) (Prohibition review of circuit court appellate jurisdiction to review untimely appeal of county court order); Miami-Dade County v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003) (Prohibition granted prohibiting circuit court appellate d…
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Amos v. Reich, 208 So. 3d 796 (Fla. 3d DCA 2016)…of Appeal fell on November 18, 2016. Amos, however, filed his Notice of Appeal on November 21, 2016. “Under Rule 9.110, the ‘[fjailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Rice v. Freeman, 939 So. 2d 1144, 1145 (Fla. 3d DCA 2006) (quoting Miami-Dade Cty. v. Peart, 843 So. 2d 363, 364 (Fla. 3d DCA 2003)). [*797] Accordingly, the appeal is untimely and this Court lacks jurisdiction to entertain this appeal. DISMISSED.…
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Watkins v. State, 217 So. 3d 1135 (Fla. 3d DCA 2017)…28, 2016. Watkins filed his Notice of Appeal on November 16, 2016. “Under Rule 9.110, the ‘[fjailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Amos, 208 So. 3d at 796 (quoting Rice v. Freeman, 939 So. 2d 1144, 1145 (Fla. 3d DCA 2006)). III. CONCLUSION Because Watkins’s motion for rehearing was untimely, it failed to toll rendition of the trial court’s September 28, 2016, order denying his motion to correct illegal sentence. Watkins’s November 16, 2016…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fed. Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206 (U.S. 1952)
- ST. Moritz Hotel v. Jimmy C. Daughtry & the Fla. Indus. Comm'n, 249 So. 2d 27 (Fla. 1971)
- Miami-Dade Cnty. v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003)
- Universal Dev. Corp. & USF & G v. Lavine, 461 So. 2d 208 (Fla. 1st DCA 1984)
- Hawks v. Walker, 409 So. 2d 524 (Fla. 5th DCA 1982)
- DeGALE v. Krongold, 773 So. 2d 630 (Fla. 3d DCA 2000)
- Maxfly Aviation Inc. v. Cap. Airlines Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003)
- Crapp v. Crim. Just. Standards & Training Comm'n, 753 So. 2d 787 (Fla. 3d DCA 2000)
- McINTYRE v. State, 753 So. 2d 787 (Fla. 3d DCA 2000)