Wednesday, December 16, 2009

Clerk's Date Stamp Is Dispositive Of Filing Date Regardless Of Contrary Evidence

In Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield (4D09-3587), the Fourth District held "that, pursuant to rule 1.080(e), the clerk’s date stamp is dispositive on the issue of the date of filing a paper with the trial court."  Based upon its ruling, the court dismissed the appeal as untimely as the clerk's stamp indicated the notice of appeal was filed one day late.  The appellant presented affidavits stating the notice was timely filed.  However, the court concluded the date stamp controlled and certified conflict with Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986).  The court concluded:
And, while we are cognizant of the fact that it is within the realm of possibility that the clerk’s date stamp machine may, from time to time, produce an incorrect date, prudent attorneys and clerks always have the option of paying closer attention to such details before the jurisdictional time limit expires.
Accordingly, we hold that, pursuant to rule 1.080(e), the clerk’s date stamp is dispositive on the issue of the date of filing a paper with the trial court. In this case, the clerk’s date stamp establishes that the notice of appeal was filed after the expiration of the jurisdictional time limit to file an appeal. Therefore, the motion to dismiss is granted and this appeal is dismissed. In so doing, we certify conflict with the Third District’s opinion in Weintraub.

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