HARRY SMITH, APPELLANT,
v.
ROSA SMITH, APPELLEE
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This case addresses when an order is deemed 'rendered' for purposes of calculating the time to file an appeal, specifically where a petition for rehearing has been filed. The court holds that an order is not rendered until a timely petition for rehearing is disposed of, and thus the appellant's appeal filed 61 days after the rehearing denial order was filed was untimely.
An order is not deemed rendered until a timely petition for rehearing is disposed of. Since Smith's notice of appeal was filed 61 days after the rehearing denial order was filed (rather than within 60 days), the appeal was untimely and must be dismissed.
“Rule 1.3, Florida Appellate Rules, 31 F.S. A., provides that the rendition of an order means "that it has been reduced to writing, signed and made a matter of record, or if recording is not required, then filed."”
Establishes the statutory definition of when an order is deemed 'rendered'
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Join FLexlaw to unlock all legal intelligenceHarry Smith petitioned the circuit court to modify a final decree of separate maintenance. The chancellor denied the petition by order dated July 22, …
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We granted rehearing to consider the following question: When is an order, which has been followed by a timely petition for rehearing, “rendered” so that it may serve as a predicate for an appeal. Upon reconsideration of appellee’s motion to dismiss appeal, we recede from our prior order denying said motion and hereby order that it be granted.
Appellant petitioned the circuit court to modify a final decree of separate maintenance. The chancellor denied the petition by order of July 22, 1966, which was filed on the same date and recorded on July 25, 1966. Appellant’s timely petition for rehearing was denied by order dated October 28, 1966. This order was filed in the office of the Clerk of the Circuit Court on October 28, 1966, and recorded in the chancery order book on October 31, 1966. Notice of appeal was filed on December 29, 1966.
Rule 4.2(b), Florida Appellate Rules, 31 F.S.A., provides that notice of interlocutory appeal shall be filed within sixty days from rendition of the order sought to be reviewed. *918Rule 1.3, Florida Appellate Rules, 31 F.S. A., provides that the rendition of an order means “that it has been reduced to writing, signed and made a matter of record, or if recording is not required, then filed/’ [Emphasis supplied.] Rule 1.3 also provides that where a timely and proper petition for rehearing is filed an order shall not be deemed rendered until the petition is disposed of.
Section 28.29(1), Fla.Stat., F.S.A., provides :
“No written order, judgment or decree, except an order of dismissal, a final j'udgment or a final decree, in any action at law or suit in equity in any of the several courts of the state, shall be recorded in the minutes of the court or the chancery order book, unless the court, on oral or written motion of any party to the cause, or of its own motion, shall order its recordation. Every order of dismissal, final judgment and final decree shall be recorded.”
This section as enacted by the Legislature provides that all laws and parts of laws in conflict here with are repealed.1
Section 62.16, Fla.Stat., F.S.A.,2 and § 28.21(5), Fla.Stat., F.S.A.,3 enacted prior to § 28.29(1), supra, are, in part, in conflict with § 28.29(1) insofar as they provide for the recording in the chancery order book of orders and decrees in equity other than orders of dismissal and final decrees.
As previously noted, an order is not rendered until a timely petition for rehearing is “disposed of”. An order denying a petition for rehearing is not required to be recorded and therefore is “disposed of” when reduced to writing, signed and filed.4
Appellant’s notice of appeal was filed sixty-one days from the date that the order denying his petition for rehearing was filed. As the order sought to be reviewed is deemed rendered on this date, the notice of appeal was not timely and the appeal must be and hereby is dismissed..
Appeal dismissed.
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Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979)…inction is not significant, [footnote omitted] The use of the term ‘entered’ in this sense by the bench and bar of this state has become so prevalent that it is a matter of common knowledge of which we take judicial notice. See also Smith v. Smith, 194 So. 2d 917 (Fla. 3d DCA 1967). Since the definition of “rendition” has changed, so has that of “entry.” For these reasons, the motion to dismiss is granted and the appeal is dismissed. Appeal dismissed. . The fact that a final judgment in a civil case must…1 / 2
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Larybar, Inc. v. City OF Miami Beach, 208 So. 2d 129 (Fla. 3d DCA 1968)…st be recorded under Fla.Stat. § 28.29 (1) (1965), F.S.A., the computation of the designated one month period starts to run from the date of recording. See also Rule 1.3, “Rendition,” Florida Appellate Rules, 32 F.S.A.; Smith v. Smith, Fla.App.1967, 194 So. 2d 917. Rule 1.090, R.C.P., 30 F.S.A. provides that “In computing any period of time prescribed or allowed * * * by an applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included.”…
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- Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)
- Seiferth v. Seiferth, 121 So. 2d 689 (Fla. 3d DCA 1960)