New Washington Heights Community Development Conference v. Department of Community Affairs, 86-2513

• Decision Date: 10 November 1987
• Docket Number: No. 86-2513,86-2513
• Citation: 12 Fla. L. Weekly 2584,515 So.2d 328
• Parties: 12 Fla. L. Weekly 2584 NEW WASHINGTON HEIGHTS COMMUNITY DEVELOPMENT CONFERENCE, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
• Court: Florida District Court of Appeals

Page 328

515 So.2d 328

12 Fla. L. Weekly 2584

NEW WASHINGTON HEIGHTS COMMUNITY DEVELOPMENT CONFERENCE, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.

No. 86-2513.

District Court of Appeal of Florida,

Third District.

Nov. 10, 1987.

Long & Knox and George F. Knox, Miami, for appellant.

Diana M. Parker, Tallahassee, for appellee.

Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.

ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

This case is before us on the Department of Community Affairs' motion to dismiss an administrative appeal as untimely. The appellant brought this appeal from a final agency order rendered September 3, 1986. Accordingly, the notice of appeal should have been filed no later than October 3, 1986.

The uncontroverted facts ¹ reveal that on Friday morning, October 3, 1986, a secretary to appellant's counsel in Miami, Florida, telephoned the Department's clerk in Tallahassee, Florida, inquiring about the procedure for perfecting the appeal, and, more particularly, whether the notice of appeal would be considered timely if it arrived by express mail that same day, after normal working hours. The clerk advised the secretary that the Department would consider the appeal filed as of the postmark date if it were sent by certified mail. Appellant's counsel then proceeded in accordance with those instructions, and the notice of appeal was sent by certified mail postmarked October 3, 1986. The notice was delivered to and received by the Department on the next work day, Monday, October 6, 1986.

The question presented by the Department's motion to dismiss is whether this court has jurisdiction over an appeal where the untimeliness of the filing is caused by a state functionary misleading appellant's counsel about the appropriate filing procedure; and, if not, whether the appellant is foreclosed from other avenues which might lead to review of the agency order. We hold that we have no jurisdiction over the untimely appeal, notwithstanding the circumstances described, but that our dismissal of the appeal does not foreclose the appellant from seeking other relief from the Department.

It is well settled that in order to invoke this court's jurisdiction, the notice of appeal must be timely filed--not merely mailed--within thirty days of the rendition of the order to be reviewed. First National Bank v. Florida Unemployment Appeals Commission, 461 So.2d 208 (Fla. 1st DCA 1984); Bouchard v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 448 So.2d 1126 (Fla. 2d DCA 1984); Speed v. Florida Department of Legal Affairs, 387 So.2d 459 (Fla. 1st DCA 1980). And, although the untimely filing may be attributable to the wrongful act or misconduct of a state functionary, the appellate court is nonetheless precluded from exercising jurisdiction over the appeal. State ex rel. Ervin v. Smith, 160 So.2d 518 (Fla.1964).

It is, however, also well-settled that where state action deprives a party of the ability to file a timely notice of appeal, the appellate court, although deprived of jurisdiction over the appeal, will provide the thus-rejected appellant with an alternative avenue of review. E.g., Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983) (although lack of notice of entry of trial court's order did not extend jurisdictional time limit for appeal, dismissal of appeal was without prejudice to motion under Florida...