Raysor v. Raysor, 97-3226

• Decision Date: 23 February 1998
• Docket Number: No. 97-3226,97-3226
• Parties: 23 Fla. L. Weekly D584 Kim M. RAYSOR, Appellant, v. John T. RAYSOR, Appellee.
• Court: Florida District Court of Appeals

Page 400

706 So.2d 400

23 Fla. L. Weekly D584

Kim M. RAYSOR, Appellant, v. John T. RAYSOR, Appellee.

No. 97-3226.

District Court of Appeal of Florida,

First District.

Feb. 23, 1998.

Demere Mason, Jacksonville, for appellant.

Peter Macaluso, Tampa, for appellee.

ON APPELLANT'S RESPONSE AND SUPPLEMENTAL RESPONSE TO ORDER TO SHOW CAUSE

PER CURIAM.

Kim M. Raysor seeks review of a non-final order relating to venue rendered by the trial court on July 3, 1997. The last day for invoking this court's jurisdiction by filing a notice of appeal with the clerk of the lower tribunal was Monday, August 4, 1997. See Fla. R.App. P. 9.130(b) and 9.420(e). On Wednesday, July 30, 1997, appellant placed her notice of appeal in the U.S. mail addressed to the post office box maintained by the clerk of the trial court. The notice was not filed with the clerk, however, until the morning of Tuesday, August 5, 1997. We therefore directed appellant to show cause why the appeal should not be dismissed for lack of jurisdiction.

In response to this order, appellant offered to the court two affidavits detailing the clerk's routine practice concerning the retrieval of mail from its post office box, ¹ and argues that, based on this practice, there is a period of time each day when mail can be placed in the clerk's post office box and not retrieved until the following day. Using this possibility as a foundation, appellant speculates that her notice of appeal was placed in the clerk's post office box on August 4, but was not retrieved by and filed with the clerk's office until August 5. Based upon this speculation, appellant urges us to conclude that her notice of appeal was in fact timely filed. We reject this contention for two reasons.

First, the facts alleged by appellant fall far short of establishing that the notice of appeal was actually delivered to the clerk's post office box on August 4. In fact, the facts are equally, or perhaps more, susceptible of the conclusion that delivery did not occur until August 5. Secondly, even if we were to accept appellant's supposition as true, we would conclude that she nonetheless failed to timely "file" the notice of appeal with the clerk of the trial court. 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. See Coca Cola Foods v....