IN THE INTEREST OF E.P., A CHILD. TERRI JOHNSON, APPELLANT,
v.
STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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A Florida appellate court granted the Department of Health and Rehabilitative Services' motion to dismiss an untimely notice of appeal in a child custody case, holding that Juvenile Rule 8.820(b)(3) prohibits motions for rehearing from tolling the appeal period, unlike the general appellate rules. The court certified a question of great public importance to the Florida Supreme Court regarding the conflict between juvenile and appellate procedure rules.
The notice of appeal was untimely. Juvenile Rule 8.820(b)(3) specifically prohibits motions for rehearing from tolling the appeal period in juvenile cases, requiring appeals to be filed within 30 days of the rendition of the final order rather than 30 days after disposition of the motion for rehearing. The Juvenile Rule takes precedence over the conflicting Appellate Rule because it was adopted after the 1977 revision of the Appellate Rules.
[1] A motion for rehearing in a juvenile custody proceeding does not toll the time for taking an appeal.
[2] A legal holiday occurring during the period for filing a motion for rehearing extends the deadline to the next regular business day.
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Join FLexlaw to unlock all legal intelligence“A motion for rehearing shall not toll the time for taking an appeal.”
The core holding of Juvenile Rule 8.820(b)(3) that distinguishes juvenile from general appellate procedures
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Join FLexlaw to unlock all legal intelligenceOn January 30, 1986, a final order was entered placing appellant Terri Johnson's child in foster care custody. Johnson filed a motion for rehearing on…
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HALL, Acting Chief Judge.
Appellee, Department of Health and Rehabilitative Services, contends in its motion to dismiss that appellant’s notice of appeal is untimely and the court therefore lacks jurisdiction. HRS raises two points in support of this argument.
First, it contends that appellant’s motion for rehearing filed on February 11, 1986, is untimely since the final order placing custody of appellant’s child in foster care was entered on January 30, 1986. We do not agree. February 10, 1986, was Gas-parilla Day, a legal holiday in Hillsborough County. Thus, the time for filing the motion for rehearing was extended to February 11, 1986.
Second, HRS contends that Florida Rule of Juvenile Procedure 8.820(b)(3) requires that appeal from a final order in a custody proceeding be filed within thirty days of the rendition of the order. We agree.
Juvenile Rule 8.820(b)(3) states: “A motion for rehearing shall not toll the time for taking an appeal.” The final judgment was rendered on January 30, 1986. The notice of appeal, which was filed on April 4, 1986, would have been timely if the appeal period was calculated pursuant to Florida Rule of Appellate Procedure 9.020(g) from March 13, 1986, the date of the rendition of the order denying the motion for rehearing. However, Juvenile Rule 8.820(b)(3) specifically prohibits the tolling of time for appeal in juvenile proceedings by filing a motion for rehearing. Thus, because the notice of appeal was filed sixty-four days after entry of the final order, under the Juvenile Rule it was untimely.
We acknowledge that the above rule appears to deny the opportunity for rehearing to those operating under the juvenile rules, and we find this rule at odds with Appellate Rule 9.020(g). The appellate rule defines rendition of an order and provides that “[wjhere there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing ... the order shall not be deemed rendered until disposition thereof.” As was stated in Snyder v. Gulf American Corp., 224 So. 2d 405, 406 (Fla. 2d DCA 1969): “[W]hen the trial court has pending a timely and proper motion for rehearing it has the power to alter said judgment and appeal is not authorized during this period.” But, since Juvenile Rule 8.820 was adopted in 1984, after the 1977 revision of the Florida Rules of Appellate Procedure, we must find that the Florida Supreme Court intended to limit the time for appeal in juvenile cases to a period of thirty days from the rendition of the final order, regardless of any motion for rehearing.
Accordingly, the motion to dismiss is granted.
However, we certify the following question to the Florida Supreme Court as one of great public importance:
DOES FLORIDA RULE OF JUVENILE PROCEDURE 8.820(b)(3) RESCIND FLORIDA RULE OF APPELLATE PROCEDURE 9.020(G) THEREBY LIMITING THE TIME FOR TAKING AN APPEAL TO THIRTY DAYS AFTER RENDITION OF THE FINAL JUDGMENT INSTEAD OF THIRTY DAYS AFTER RENDITION OF A FINAL ORDER ON THE MOTION FOR REHEARING?
SANDERLIN and THREADGILL, JJ„ concur.
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In the Interest of E.P. v. Dep't of Health & Rehabilitative Servs., 544 So. 2d 1000 (Fla. 1989)…DURE 8.820(b)(3) RESCIND FLORIDA RULE OF APPELLATE PROCEDURE 9.020(g) THEREBY LIMITING THE TIME FOR TAKING AN APPEAL TO THIRTY DAYS AFTER RENDITION OF THE FINAL JUDGMENT INSTEAD OF A FINAL ORDER ON THE MOTION FOR REHEARING? In the Interest of E.P., 507 So. 2d 705 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The question originates from an apparent conflict between the plain, unambiguous language of the two rules. The trial court entered its final order in this juvenile proceeding…
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In re A.A. v. Wasserman, 531 So. 2d 1050 (Fla. 2d DCA 1988)…Juvenile Procedure 8.820 requires an appeal from a final order in a custody proceeding to be filed within thirty days following the rendition of the order and that the appeal time is not tolled by a motion for rehearing. See In the Interest of E.P., 507 So. 2d 705 (Fla. 2d DCA 1987). The appellant contends that the notice of appeal was timely because the civil, not the juvenile rules apply, and consistent with rule 9.020(g) of the Florida Rules of Appellate Procedure, the notice of appeal was timely within…
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In re W.S. v. Dep't of Health & Rehabilitative Servs., 541 So. 2d 1257 (Fla. 5th DCA 1989)…That court certified this issue as a question of great public importance and the supreme court has accepted jurisdiction. In re A.A., 531 So. 2d 1050 (Fla. 2d DCA 1988), rev. granted Case No. 73,187 (Fla. October 20, 1988); In the Interest of E.P., 507 So. 2d 705 (Fla. 2d DCA 1987) rev. granted Case No. 70, 678 (June 11, 1987). Because the notice of appeal was filed more than thirty days after the final judgment this court has no jurisdiction. We also certify the following question as one of great public i…
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- Snyder v. Gulf Am. Corp., 224 So. 2d 405 (Fla. 2d DCA 1969)