Harrell v. Harrell
| Decision Date | 04 August 2004 |
| Docket Number | No. 4D04-1898.,4D04-1898. |
| Citation | 879 So.2d 87 |
| Parties | Jane Ann HARRELL, Appellant, v. Raymond Lee HARRELL, Appellee. |
| Court | Florida District Court of Appeals |
Jan Ann Harrell, Huntington, WV, pro se.
No appearance for appellee.
Appellant appeals an order entered on April 5, 2004. The notice of appeal was filed with the circuit court two days late, on May 7, 2004. In response to this court's order to show cause, appellant argues that the case should not be dismissed because she turned the notice over to the post office in West Virginia for express mail on May 4, 2004. The post office label indicates a "second" day of delivery.
Timely mailing of a notice of appeal is insufficient to confer jurisdiction on this court. As the first district has observed:
Generally, a paper is deemed to be "filed" when it is delivered to the proper official and received by that official to be kept on file. Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977). In order to be timely, a notice of appeal must be filed with the appropriate court within the required time, and merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient.
Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998); see also Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So.2d 24, 26 (Fla.1996)
(); Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991); Shields v. Colonial Penn Ins. Co., 513 So.2d 1363 (Fla. 5th DCA 1987). The mailbox rule, which applies to prisoners, has no application here. Raysor, 706 So.2d at 401.
Because we have no jurisdiction, we dismiss the appeal. See id.; Cordero, 589 So.2d at 962
The issue is whether a notice of appeal was filed within the time required by rule. See Fla. R.App. P. 9.110(b) (). If the notice is not deemed timely, we must decide whether the appeal should be dismissed.
Appellant is a parent appealing a final order changing visitation and holding her in contempt for unreasonably denying the fathers summer vacation with their child. This mother now lives in West Virginia. Although the trial on the post judgment modification/contempt proceeding was held in Palm Beach County, she participated only by telephone from West Virginia and without counsel.1 The final order is deemed rendered on April 5th.
To our order to show cause why we should not dismiss her appeal as untimely, she responded with a personal statement (not under oath), attaching copies of documents relating to the mailing of her notice of appeal to the trial court. Her statement recounts that on May 4th she gave her notice of appeal to the U.S. Postal Service (USPS) in West Virginia, addressed to the Delray Beach satellite courthouse (presumably where the trial judge is situated), prepaying the standard fee of $13.65 for an "Express Mail," or overnight delivery. She says that the USPS marked the express mail for "second day" delivery instead of overnight. This was done, she says, in a section of the express mail form that is filled out by the USPS clerk, not by the sender. She asserts that the clerk never told her that he was marking the item for a second day delivery instead of an overnight. She presumes this was an honest mistake on his part, but that in any case she was not aware of it.
She admits that she knew the document had to reach the court in Florida by May 5th. She points out that the express mail form shows that she mailed the item at 1:48 p.m. on May 4th. She explains:
"If I had known that my appeal would not be sent as a "Next Day" [e.s.], as I paid for ... I had plenty of time to take it to Federal Express or any other overnight business to handle it for me."
She also states that she telephoned the USPS tracking number on the form and learned that the mailing was delivered in Delray Beach on May 5th at 12:47 p.m.
USPS offers an internet "track and confirm" program, so that mailers may ascertain delivery status for their mail. See United States Postal Service, at http:// www.usps.com. A check of the item number shown on the USPS express mail receipt attached to appellants statement yields the following information: This is business record evidence that USPS delivered the document to the courthouse in Delray Beach on May 5th, not long past noon. A delivery before 1:00 pm should make the notice timely filed.
The papers prepared by the trial court Clerks office do not confirm this delivery, but they do not contradict it either. To be sure, the notice was sent to the Circuit Courts satellite courthouse in Delray Beach, rather than its main courthouse in West Palm Beach. I do not know whether appeals are processed in satellite courthouses in the Fifteenth Circuit, but I suspect they are sent to the main facility for such handling. In this instance, the Clerks stamp on the document (also not under oath or seal), shows a date of May 7th, suggesting that the document may not have been stamped in until it reached the appeals clerk at the main courthouse. Otherwise nothing in the few papers we have would explain why a document reaching one of the outlying courthouses on May 5th would bear a date stamp of May 7th.
The majority deems the notice untimely, and I cannot say that their conclusion is irrational, given the filing stamp. Nonetheless, it is a conclusion reached without a formal fact-finding hearing. As an appellate court, we do not hold evidentiary hearings. But the conclusion of the majority does seem contradicted with what we know from the publicly accessible business records of USPS. We could remand the case to the trial court to hold an evidentiary hearing and determine precisely when appellants notice of appeal actually reached the courthouse. That would require the personal presence of appellant before the trial judge, something she was unable to accomplish even at trial on the post judgment modification, contempt proceeding. In the end, even a trial court determination would very likely be made largely on documentary evidence rather than personal credibility.
Therefore if we are going to do the fact finding in this court on the basis of documents only, in my opinion the evidence preponderates in her favor. I would find that this notice of appeal actually reached the Delray Beach courthouse timely on May 5th, that in all probability it was not file-stamped by the Clerk until two days later because of the delay in forwarding it to the main courthouse in West Palm Beach, and that in consequence it may have been mislaid or was buried in the flow of everyday paper work.
If the majority's factual conclusion stands, however, it suggests a pertinent legal issue not addressed in their opinion. The justification for dismissing her appeal would be that the legal rule on the time for filing is inflexible, unalterably requiring that all notices of appeal be received and stamped by the Clerk within the 30 days. If that were the actual rule, it would be sensibly consistent to hold this notice of appeal untimely. But if the law does not uncompromisingly apply a rigid rule that every mailing of a notice of appeal within 30 days of rendition but not actually reaching the court within the 30-day period is untimely, then a dismissal may not be so clearly mandated. In spite of the clear text of what appears to be an unbending rule, Judges have carved out a mail box exception2 to the time requirement. Applying that exception, the courts have relieved some parties from the rigid requirement that all notices actually reach the court before the end of the prescribed deadline. In Haag v. State, 591 So.2d 614 (Fla.1992), the court adopted a mail box exception to the time requirements for filing post conviction relief motions in criminal cases, construing the rule 3.850(b) provision that "[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case...." Fla. R.Crim. P. 3.850(b).
The Haag exception was created by judges in spite of the clarity of the rule's text because of a specific constitutional compulsion they thought should override its rigidity. Haag reasoned that post conviction relief under rule 3.850 "is a `procedural vehicle for the collateral remedy otherwise available by writ of habeas corpus.'" 591 So.2d at 616. As regards rule 3.850's two-year time limit to seek such relief, the court noted:
591 So.2d at 616 (quoting Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). In justifying an exception to the timeliness requirement, the court explained:
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