DERRICK L. PENNYWELL, APPELLANT,
v.
DEPARTMENT OF REVENUE, O/B/O, TAMIKO WOODARD, APPELLEE
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.
Appellant sought review of a paternity and child support judgment but filed his notice of appeal two days after the 30-day deadline established by Florida Rule of Appellate Procedure 9.110(b). The court dismissed the appeal for lack of jurisdiction, holding that the filing deadline for a notice of appeal is jurisdictional and cannot be waived.
The appeal was untimely filed and must be dismissed for lack of jurisdiction. The filing deadline for a notice of appeal is jurisdictional, and an untimely filing precludes the appellate court from exercising jurisdiction over the appeal. Although filing in the wrong court is not jurisdictional, the appeal here was untimely even accounting for that filing.
[1] An unauthorized second motion for rehearing does not extend the time for filing a notice of appeal.
[2] A notice of appeal must be filed within 30 days after rendition of the order to be reviewed.
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“The filing deadline is jurisdictional, and the untimely filing of a notice of appeal precludes the court from exercising jurisdiction over the appeal.”
Establishes that the 30-day filing deadline is a jurisdictional requirement that cannot be waived or excused.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe circuit court entered a final judgment in a paternity and child support case on September 16, 2010. Appellant filed a timely motion for rehearing,…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Notice Of Appeal Filing Deadline cases and more on FLexlaw
Appellant seeks review of a final judgment in a paternity and child support case. We dismiss the appeal as untimely for the reasons that follow.
The final judgment was entered by the circuit court in Gadsden County on September 16, 2010. Appellant filed a timely motion for rehearing, which was denied by the trial court on September 30, 2010. Appellant then filed a second motion for rehearing, which was denied on October 13, 2010. Thereafter, on November 3, 2010, Appellant filed a notice of appeal in *20the Second District Court of Appeal. The notice of appeal containing the date-stamp by the clerk of the Second District was then filed in this court on November 16, 2010. (The notice of appeal was apparently returned to Appellant by the Second District and then filed by Appellant with this court.)
In response to our order to show cause why this appeal should not be dismissed as untimely, Appellant argued that the notice of appeal was timely filed in the Second District. Appellant correctly focuses on the date that the notice of appeal was filed in the Second District, but his argument is premised upon the erroneous assumption that the deadline for the appeal ran from the date that the second motion for rehearing was denied.
The notice of appeal should have been filed in the Gadsden County circuit court, not this court (and certainly not the Second District). See Fla. R.App. P. 9.110(b). However, the filing of a notice of appeal in the wrong court is not a jurisdictional defect. See Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 755 So.2d 85, 88 (Fla.2000); Alfonso v. Dept, of Envtl. Reg., 616 So.2d 44, 47 (Fla.1993). The notice is considered to have been filed in the proper court as of the date that it was filed in the wrong court, which in this case is November 3, 2010. See Alfonso, 616 So.2d at 47. But, even using that date, the notice of appeal was untimely.
A notice of appeal must be filed within 30 days after rendition of the order to be reviewed. See Fla. R.App. P. 9.110(b). Here, the final judgment was rendered on September 30, 2010, when Appellant’s first motion for rehearing was denied. See Fla. R.App. P. 9.020(h)(1). The second motion for rehearing was unauthorized and did not further delay rendition of the final judgment. Id.; see also Johnson v. Johnson, 902 So.2d 241, 244 (Fla. 1st DCA 2005); De Ardila v. Chase Manhattan Mortgage Corp., 826 So.2d 419, 421 (Fla. 3d DCA 2002).
The 30th day after rendition of the final judgment was Saturday, October 30, 2010. Thus, the deadline for filing the notice of appeal was Monday, November 1, 2010. See Fla. R.App. P. 9.420(f). Appellant’s notice of appeal was not filed until November 3, 2010, which is two days late.
The filing deadline is jurisdictional, and the untimely filing of a notice of appeal precludes the court from exercising jurisdiction over the appeal. Peltz v. Dist. Court of Appeal, Third Dist., 605 So.2d 865, 866 (Fla.1992); see also Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (Fla. 4th DCA 2004) (“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal.”). Accordingly, we must dismiss this appeal for lack of jurisdiction.
DISMISSED.
BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Griffis v. State, 90 So. 3d 320 (Fla. 1st DCA 2012)…, 810 So. 2d 988, 990 (Fla. 1st DCA 2002). When the notice of appeal is not filed within 30 days of rendition, “the untimely filing ... precludes the court from exercising jurisdiction over the appeal.” Pennywell v. Dep’t of Revenue ex rel. Woodard, 62 So. 3d 19, 20 (Fla. 1st DCA 2011); see also Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286, 1288 (Fla. 4th DCA 2004). Because an appellate court has no jurisdiction to consider a late-filed appeal, it must dismiss the appeal. Tyler v. Chiles, 718 So. 2d…
-
Madison v. State, 140 So. 3d 682 (Fla. 5th DCA 2014)…eal was untimely. We treat the appeal as a petition for writ of certiorari and grant the petition. An appeal timely commenced in an inappropriate court is deemed timely filed in the appropriate court. Pennywell v. Dep’t of Revenue ex rel. Woodard, 62 So. 3d 19, 20 (Fla. 1st DCA 2011) (observing that “the filing of a notice of appeal in the wrong court is not a jurisdictional defect” and that the notice “is considered to have been filed in the proper court as of the date that it was filed in the wrong cour…
-
Bennett v. State, 191 So. 3d 1006 (Fla. 1st DCA 2016)…PER CURIAM. “[T]he filing of a notice 'of appeal in the wrong court is not a jurisdictional defect.” Pennywell v. Fla. Dep’t of Revenue ex rel. Woodard, 62 So. 3d 19, 20 (Fla. 1st DCA 2011) (citing Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 755 So. 2d 85, 88 (Fla.2000), and Alfonso v. Dep’t of Envtl. Reg., 616 So. 2d 44, 47 (Fla.1993)). Accordingly, the petition for belated appeal-is granted. Petiti…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arvin Peltz v. Dist. Court OF Appeal, 605 So. 2d 865 (Fla. 1992)
- Cayetano E. Alfonso v. Dep't OF Env't Reg., 616 So. 2d 44 (Fla. 1993)
- Vandairy Cleckley v. State, 869 So. 2d 1286 (Fla. 4th DCA 2004)
- Kaweblum v. Thornhill Ests. Homeowners Ass'n, Inc., 755 So. 2d 85 (Fla. 2000)
- Clemon James Johnson, Jr. v. Johnson, 902 So. 2d 241 (Fla. 1st DCA 2005)
- de Ardila v. Chase Manhattan Mortg. Corp. & S. Fla. Prop. Invs. Corp., 826 So. 2d 419 (Fla. 3d DCA 2002)