LARRY ALAN DAILY, APPELLANT,
v.
DANIEL MARK SOLOWAY, ET AL., APPELLEES
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The court dismissed an untimely appeal filed over 30 days after the order's rendition, but without prejudice to allow the appellant to seek relief in circuit court if prison officials hindered timely filing.
An appeal filed over 30 days after rendition of the order is untimely and must be dismissed under Florida Rule of Appellate Procedure 9.110(b), but dismissal is without prejudice if the appellant can show prison officials hindered timely filing.
[1] When a party's ability to file a timely notice of appeal is hindered or stymied by prison officials, relief from dismissal for untimeliness may be available in the trial…
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Join FLexlaw to unlock all legal intelligenceAppellant Daily filed a notice of appeal with a certificate of service and institutional date stamp showing September 2, 2013, but the underlying orde…
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Appellant’s notice of appeal contains a certificate of service, as well as an institutional date stamp initialed by appellant, showing the notice was given to institution officials for mailing on September 2, 2013. For purposes of the “mailbox rule,” Florida Rule of Appellate Procedure 9.420(a)(2), the presumption is that the date stamp properly reflects the date on which the notice of appeal was turned over for mailing. Crews v. Malara, 2013 WL 5584090 at *2, 123 So.3d 144, 146 (Fla. 1st DCA Oct. 11, 2013). Because the filing date is over 30 days from the July 31, 2013, date of rendition of the order on appeal, the appeal is untimely and must be dismissed. See Fla. RApp. P. 9.110(b). However, to the extent that appellant’s attempt to timely appeal was hindered or stymied by prison officials, appellant may be entitled to relief. See generally David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280 (Fla. 2d DCA 2008) (distinguishing line of cases providing relief when “a party’s ability to file a notice of appeal in a timely manner was stymied or hindered by action attributable to the trial court or the clerk” where the underlying rationale is “one of fundamental fairness”). Accordingly, this dismissal is without prejudice to appellant’s right to seek relief in the circuit court. Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000) (explaining avenues for obtaining belated appeal in criminal and civil cases); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983) (explaining that relief may be sought in the trial court). DISMISSED.
WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.
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Reynolds v. Jones, 176 So. 3d 1020 (Fla. 1st DCA 2015)…PER CURIAM. DISMISSED. This disposition is without prejudice to petitioner’s right to seek relief in the circuit court by filing a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See Daily v. Soloway, 125 So. 3d 363 (Fla. 1st DCA 2013); Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998). LEWIS, SWANSON, and WINOKUR, JJ., concur.…
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Parramore v. Crews, 138 So. 3d 1105 (Fla. 1st DCA 2014)…PER CURIAM. DISMISSED. Daily v. Soloway, 125 So. 3d 363 (Fla. 1st DCA 2013). ROWE, SWANSON, and MAKAR, JJ., concur.…
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Mann v. Guard Howl, 151 So. 3d 493 (Fla. 1st DCA 2014)…PER CURIAM. DISMISSED. Daily v. Soloway, 125 So. 3d 363 (Fla. 1st DCA 2013). ROWE, MARSTILLER, and MAKAR, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)
- Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000)
- David M. Dresdner, M.D., P.A. v. The Charter OAK Fire Ins. Co., 972 So. 2d 275 (Fla. 2d DCA 2008)
- Crews v. Malara, 123 So. 3d 144 (Fla. 1st DCA 2013)