Wednesday, April 28, 2010

Does The Stamp On The Notice Of Appeal Control Appellate Jurisdiction?

In Soledispa v. La Salle Bank National Association (4D10-998), the Fourth District dismissed the appeal as untimely filed based upon the date stamp affixed to the notice of appeal by the trial court's clerk of court.  The court relied upon its holding in Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So. 3d 666 (Fla. 4th DCA 2009), which was discussed HERE.  The Soledispa opinion stated:
Here, the clerk stamped the notice of appeal as being filed February 23, 2010, from a final judgment rendered January 13, 2010, thus making the notice untimely. While appellant has filed affidavits stating that a courier delivered the notice of appeal to the Broward County Clerk’s office on February 11, 2010, the filing stamp date governs the filing date.
As it did in Strax, the court certified conflict with Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986).  The court also certified conflict with Ocr-EDS, Inc. v. S & S Enterprises, Inc., --- So.3d ----, 2010 WL 838164 (Fla. 5th DCA Mar. 12, 2010).  The Ocr-EDS court stated:
We write to express our disagreement with Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So. 3d 666 (Fla. 4th DCA 2009), which held that appellate court jurisdiction may only be determined from the trial clerk's time stamp on a notice of appeal, so that a timely-filed notice of appeal will be conclusively deemed untimely if it is incorrectly datestamped after the jurisdictional deadline. By contrast, we hold that a timely-filed notice of appeal is sufficient to confer appellate jurisdiction over the matter, even if the notice is erroneously time-stamped with a date after the jurisdictional deadline....This reading of the rules also conforms with the long-standing principle that "[w]hile our procedural rules [should] provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice." Rogers v. First Nat'l Bank at Winter Park, 232 So. 2d 377, 378 (Fla. 1970). A rule that would deny a citizen who has timely sought an appeal his or her right to appeal based upon a proven mistake by a clerk's office employee is not consistent with justice or due process. Accordingly, we relinquish this matter to the circuit court for a period of forty-five days, with directions that the trial judge conduct an evidentiary hearing to determine whether Appellants' notice of appeal was received on November 20, as Appellants' evidence suggests. We certify conflict with Strax.


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