Levine v. State Dept. of Health and Rehabilitative Services, Division of Health, 74--1393

• Citation: 320 So.2d 844
• Decision Date: 29 October 1975
• Docket Number: No. 74--1393,74--1393
• Parties: Norman LEVINE and Margaret E. Levine, Appellants, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF HEALTH, Appellee.
• Court: Court of Appeal of Florida (US)

Page 844

320 So.2d 844

Norman LEVINE and Margaret E. Levine, Appellants, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF HEALTH, Appellee.

No. 74--1393.

District Court of Appeal of Florida, Second District.

Oct. 29, 1975.

Michael R. N. McDonnell of Schryver & McDonnell, Naples, for appellants.

Robert M. Eisenberg and J. E. Hodges, General Counsel of Div. of Health, Jacksonville, for appellee.

McNULTY, Chief Judge.

After a lengthy administrative proceeding, the record of which consumed in excess of 2,100 pages in 13 volumes, the appellee Department revoked appellants' license to sell and fit hearing aids. Within 30 days appellants filed a petition in the circuit court for a writ of certiorari to review that revocation. ¹ The petition was not accompanied by the record or supporting briefs as prescribed by Rule 1.640, R.C.P. The trial judge determined that such omission was Jurisdictional and dismissed the petition. We reverse.

From a brief relevant chronology of the proceedings below, it appears that the aforesaid petition for certiorari was timely filed on October 25, 1973. On the following day, appellants mailed directions to the appellee Department to prepare a record of the proceedings, the Department having custody of the records and files. On November 9, 1973, the circuit court granted appellants' motion for an extension of time for filing the brief and a proper record, which was not indeed properly filed by appellee Department until November 5, 1974, more than eleven months thereafter. Apparently concluding that he had previously erred in extending the time, the trial court entered the order appealed from, on the Department's motion, on November 25, 1974.

Initially we point out that Rule 1.640, R.C.P., relating to certiorari in the circuit court, does not expressly provide that the court may extend the time within which the record and briefs shall be filed. It differs in this respect from the appellate rule on certiorari, Rule 4.5, F.A.R., the rule on which the trial court initially relied in granting the extension in the beginning.

This court held in State v. Williams ² that the failure to accompany the petition for certiorari with the record and/or briefs under this latter rule was Not jurisdictional. While Rule 1.640, Supra, is silent on the matter we know of no reason why the same rule ought not apply notwithstanding. The filing of an accompanying record and/or supporting brief is a matter of form, and the rules are clearly directory or procedural in either case. The jurisdiction of the proper court having been invoked by the initial pleading, i.e., the petition, the court had inherent power to further justice by extending the time to file additional documents as may be necessary reasonably to comply with the scope and purpose of the rules. ³ After all, rules of procedure are calculated to expedite justice, not frustrate it.

Obviously, a 13 volume 2,100 page record cannot readily be obtained within 30 days by one aggrieved by an administrative ruling, particularly when the records and files are in the possession of the administrative agency itself. It cannot be said with reason,...