Perego v. Robinson, LL-243
| Decision Date | 19 December 1979 |
| Docket Number | No. LL-243,LL-243 |
| Citation | 377 So.2d 834 |
| Parties | Thomas PEREGO, Appellant, v. John Spencer ROBINSON and Robert L. Hannah, Appellees. /T1-10. |
| Court | Florida District Court of Appeals |
Joseph DeGance of Jansen & DeGance, P. A., Fort Lauderdale, for appellant.
John Spencer Robinson, Daytona Beach, for appellee, John Spencer Robinson.
No appearance for appellee, Robert L. Hannah.
On April 17, 1979, the District Court of Appeal, First District, entered its order requiring the Appellant to show cause why this appeal should not be dismissed for lack of jurisdiction, because it appeared from the record that the notice of appeal had not been timely filed. Appellant has filed affidavits to explain the apparent late filing of the notice. This appeal was subsequently transferred to this Court.
The record is clear that the Notice of Appeal was not filed in the office of the Clerk of the Court until after the appeal time had run. The office of the Clerk of the Circuit Court of Volusia County is at the county seat in DeLand. No documents are filed or recorded elsewhere, nor can they be. Article VIII, Sec. 1(k), Florida Constitution. The Notice of Appeal was left with a deputy clerk in Daytona Beach and from there transmitted to DeLand, where it did not arrive until after the time for appeal had run. Under these circumstances, it cannot be considered "filed" within the time allowed. Rule 9.110, Fla.R.App.P. This is equivalent to filing in the wrong court. See: Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla.1978); Estate of Hatcher, 270 So.2d 45 (Fla. 1st DCA 1972).
The appeal is therefore dismissed for lack of jurisdiction.
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Hawks v. Walker, 81-829
...no one can correct, not even the court. Fla.R.App.P. 9.110(b). Dibble v. Dibble, 377 So.2d 1001 (Fla. 3d DCA 1979); Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979), cert. den., 388 So.2d 1116 APPEAL DISMISSED. FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. ...
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Sanchez v. Swanson, 84-2227
...any defect in filing a notice of appeal is jurisdictional and "cannot be cured by affidavit." He relies primarily on Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979), cert. denied, 388 So.2d 1116 (Fla.1980), to support his In Perego the appellant filed his notice of appeal with a deput......
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Hoffman v. Hoffman, AX-386
...filed until filed at the main office in Crestview. The Fifth District was confronted with a similar fact pattern in Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979). There the notice of appeal was filed in Daytona Beach at the courthouse annex with a deputy clerk. Daytona Beach is loca......
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Hoffman v. Hoffman
...review Hoffman v. Hoffman, 463 So.2d 517 (Fla. 1st DCA 1985), which was certified as being in direct conflict with Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979). We have jurisdiction. Art. V, § 3(b)(4), Fla. In this case, the First District Court of Appeal properly held that the tim......