PEEK
v.
FLORIDA COMMISSION ON OFFENDER REVIEW
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When a notice of appeal is filed after the thirty-day deadline prescribed by the Florida Rules of Appellate Procedure, the appellate court lacks jurisdiction and must dismiss the appeal.
[1] A final order of a trial court that is not rendered in a review capacity is appealable as a matter of right.
[2] The timeliness of an appeal is jurisdictional.
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Join FLexlaw to unlock all legal intelligence“Unless an appeal is taken within the prescribed time, this Court has no jurisdiction whatever.”
Donin v. Goss, cited in holding that untimely appeals divest appellate court of jurisdiction
Petitioner Peek sought a writ of prohibition against the Florida Commission on Offender Review, but the trial court dismissed his complaint. Peek file…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
No. 1D2023-2258 _____________________________
ANTHONY RAY PEEK,
Petitioner,
v. FLORIDA COMMISSION ON OFFENDER REVIEW,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
April 3, 2024 TANENBAUM, J.
The trial court below dismissed the petitioner’s complaint seeking a writ of prohibition. The order of dismissal in that instance is a final order. It is appealable as a matter of right because the trial court did not render that order in a review capacity. Cf. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982) (agreeing that “a final judgment of a circuit court acting in its review capacity is not appealable as a matter of right”). We in turn convert the petition to an appeal. See Fla. R. App. P. 9.040(c). The appeal, however, is untimely. See Fla. R. App. P. 9.110(b) (requiring that a notice of appeal be filed within thirty days of rendition of the order to be reviewed); see also Art. V, § 2(a), Fla. Const. (providing authority to the supreme court to “adopt
rules for the practice and procedure in all courts including the time for seeking appellate review”).
Timeliness of an appeal is jurisdictional. Cf. § 59.081(2), Fla. Stat. (“Failure to invoke the jurisdiction of [an appellate court] within the time prescribed by [supreme court rule] shall divest such court of jurisdiction to review such cause.”). When a notice of appeal has been untimely filed, dismissal is the only course of action for this court. See Donin v. Goss, 69 So. 2d 316, 318 (Fla. 1954) (“However, a principle so well settled that no citation of authority is required, is that jurisdiction cannot be conferred on this Court by consent. Unless an appeal is taken within the prescribed time, this Court has no jurisdiction whatever.”); see also Counne v. Saffan, 87 So. 2d 586, 587 (Fla. 1956) (“The filing of the notice of appeal is jurisdictional and this court is without power to exercise its jurisdiction in the absence of the filing of such a notice within the time and manner prescribed by our rules.”); State ex rel. Diamond Berk Ins. Agency, Inc. v. Carroll, 102 So. 2d 129, 131 (Fla. 1958) (“A court has no power to act in the absence of a jurisdictional foundation for the exercise of the power. The timely and proper filing of a notice of appeal is a jurisdictional essential to enable an appellate court to exercise its power.”); Peltz v. Dist. Ct. of Appeal, Third Dist., 605 So. 2d 865, 866 (Fla. 1992) (“The untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction.”).
B.L. THOMAS, J., concurs; LEWIS, J., concurs in result only without opinion.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Anthony Ray Peek, pro se, Petitioner. No appearance for Respondent.
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Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla. 1960)…order dismissing the appeal for lack of jurisdiction.23 HOBSON, THORNAL and O’CON-NELL, JJ., concur. TERRELL, J., agrees to judgment. THOMAS, C. J., and ROBERTS, J., dissent. . Counne v. Saffan, Fla.1956, 87 So. 2d 586; Donin v. Goss, Fla.1954, 69 So. 2d 316 and State ex rel. Diamond Berk Insurance Agency v. Carroll, Fla.1958, 102 So. 2d 129. . Except those from which appeals may be taken direct to the Supreme or to a circuit court. . Art. V, Sec. 5(3), Florida Constitution, F.S.A. . F.A.R. Rule 3.2,…
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State of Fla. ex rel. Eugene W. Owens v. Honorable Tillman Pearson, 156 So. 2d 4 (Fla. 1963)…il Procedure, 31 F.S.A. . Note 1, supra. . Fla., 81 So. 2d 591. . 59.08, F.S.A. Rule 3.2, F.A.R.1962 Revision. Cf. In re Wartman’s Estate, Fla., 1961, 128 So. 2d 600. . Note 11, supra. Counne v. Saffran, Fla., 87 So. 2d 586; Donin v. Goss, Fla., 69 So. 2d 316; Lee v. Bond-Howell Lumber Co., 123 Fla. 202, 166 So. 733. Cf. Thursby v. Stewart, 103 Fla. 990, 138 So. 742; Shannon v. Shannon, Fla.App., 136 So. 2d 253; Bancroft v. Allen, 138 Fla. 841, 190 So. 885. . State v. Florida Turnpike Authority, Fla.196…
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State of Fla. ex rel. Richard W. Ervin v. Smith, 160 So. 2d 518 (Fla. 1964)…ppellate court simply has no jurisdiction — no power — to act. Purdy v. State, 150 Fla. 172, 7 So. 2d 109; Newsom v. State, Fla., 54 So. 2d 58; Bell v. State, 154 Fla. 505, 18 So. 2d 361; Lee v. State, 128 Fla. 319, 174 So. 589; Donin v. Goss, Fla., 69 So. 2d 316. Respondents, however, suggest that the restriction of the rule should be lifted in this instance. This is so, they assert, because the convicted man here was not responsible for the delay. The notice of appeal was not filed in time because of the…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Arvin Peltz v. Dist. Court OF Appeal, 605 So. 2d 865 (Fla. 1992)
- Counne v. Saffan, 87 So. 2d 586 (Fla. 1956)
- Donin v. Goss, 69 So. 2d 316 (Fla. 1954)