Wemett v. State

• Decision Date: 21 December 1988
• Docket Number: No. 88-1967,88-1967
• Citation: 536 So.2d 349,14 Fla. L. Weekly 1
• Parties: 14 Fla. L. Weekly 1 Glen A. WEMETT, Petitioner, v. STATE of Florida, Henry Cook, et al., Respondent.
• Court: Florida District Court of Appeals

Page 349

536 So.2d 349

14 Fla. L. Weekly 1

Glen A. WEMETT, Petitioner, v. STATE of Florida, Henry Cook, et al., Respondent.

No. 88-1967.

District Court of Appeal of Florida, First District.

Dec. 21, 1988.

Glen A. Wemett, pro se.

James L. Harrison, Gen. Counsel, and Lee S. Carlin, Asst. Counsel, for respondent Cook.

ON PETITION FOR WRIT OF MANDAMUS

PER CURIAM.

Glen Wemett, an inmate in Florida's correction system, brought a civil action in the circuit court for Duval County based upon actions of the police department. His complaint was dismissed with prejudice but this court reversed, finding that plaintiff should have been given leave to comply with the applicable notice requirements. Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986). On remand, plaintiff was permitted to file three amended complaints but each was dismissed, the last one with prejudice. A motion for rehearing on the dismissal was denied by order of January 25, 1988.

Wemett alleges that on February 19, 1988, he gave to prison officials a notice of appeal for transmittal for filing. It is further alleged that a mail log maintained by a notary at the prison reflects that the notice was mailed on that date to the clerk of the circuit court. ¹ The clerk of the lower tribunal, however, did not accept the notice for filing. According to petitioner, he received his notice returned to him with an unsigned note indicating that filing of the notice would not be permitted until an order of indigency was rendered by the trial judge. When Wemett could obtain no satisfaction through correspondence with the lower tribunal, he petitioned this court for a writ of mandamus. A show cause order issued and in response the clerk argues that the notice of appeal was rejected not for failure to pay the filing fee or obtain a waiver of same, but because the notice was a photocopy and lacked an original signature. ²

If the notice of appeal was in fact rejected because the appellant had not been adjudicated insolvent, the clerk's action was improper. This question has been well-settled in Florida since our supreme court addressed the issue in Williams v. State, 324 So.2d 74 (Fla.1975). Thus, if we accept petitioner's version of the facts, he is entitled to the relief he seeks.

If we accept respondent's version, however, the question of law presented, whether the absence of an original signature on a notice of appeal is a jurisdictional defect, is not so well-resolved. It appears that no Florida appellate court has directly spoken to this issue, but a number of authorities suggest that the question should be answered negatively.

First, it is the general rule that a defect in a notice of appeal that does not prejudice the adverse party will not serve as grounds for dismissal. Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977); Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla.1972). Certainly, an appellee would be hard pressed to show prejudice from the lack of an original signature on a notice of appeal presented to the clerk so long as the notice was otherwise sufficient and was timely filed and properly served. In the Florida decision presenting facts most analogous to those before us, a motion to dismiss the appeal was predicated on the signing of the notice of appeal by the secretary of counsel for appellant, rather than the attorney himself. In Hankin v. Blissett, 475 So.2d 1303 (Fla. 3d DCA 1985), our sister court determined that such a defect was not jurisdictional and denied the motion to dismiss. We believe that Hankin was correctly decided and we cannot reconcile the rule of law announced there with the position of respondent in this cause. To allow the clerk of the lower tribunal to accept a notice containing the original signature of an unauthorized person while rejecting a notice bearing a photocopy of the signature of an authorized person is simply too illogical for us to approve as a permissible policy.

Further support for the conclusion we reach is found in authorities discussing signatures outside the context of notices of appeal. In State v. Hickman, 189 So.2d 254 (Fla. 2d DCA), cert. denied, 194 So.2d 618 (Fla.1966), it was held that a warrant bearing the facsimile stamp of a justice of the peace was valid even if the stamp were affixed by his clerk, so long as the clerk was acting upon the authority of the official. The court quoted with approval from a legal treatise the proposition that:

In the absence of a statute prescribing the method of affixing a signature, it may be affixed in many different ways. It may be written by hand, and, generally, in the absence of a statute otherwise providing, it may be printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another.

189 So.2d at 258 (quoting 80 C.J.S. Signatures § 7 (1953)). Facsimile signatures have also been deemed...