CAYETANO F. ALFONSO AND SUNLAND ESTATES, INC., APPELLANTS,
v.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLEE
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The Third District Court of Appeal dismissed an appeal for lack of jurisdiction because the appellant filed the notice of appeal with the district court rather than the circuit court and failed to correct this procedural error within thirty days. The court certified a question of great public importance to the Florida Supreme Court regarding whether the strict jurisdictional requirements of Lampkin-Asam remain valid in light of subsequent decisions.
A district court of appeal has no jurisdiction to entertain an appeal under these circumstances and must dismiss the appeal sua sponte for lack of jurisdiction, as required by the controlling precedent in Lampkin-Asam v. District Court of Appeal.
[1] A district court of appeal lacks jurisdiction to entertain an appeal from a circuit court's final judgment when the notice of appeal is erroneously filed with the distric…
[2] A timely notice of appeal filed in the circuit court may be treated as a timely petition for certiorari by the district court of appeal.
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Join FLexlaw to unlock all legal intelligence“the district court has no jurisdiction to entertain such an appeal, and, accordingly, we dismiss the instant appeal sua sponte for lack of jurisdiction”
Establishes the court's holding that lack of proper notice of appeal divests the district court of jurisdiction
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Join FLexlaw to unlock all legal intelligenceAlfonso and Sunland Estates received a final judgment from a circuit court. Rather than filing a notice of appeal with the circuit court as required, …
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PER CURIAM.
The question presented by this appeal is whether a district court of appeal has jurisdiction to entertain an appeal from a final judgment of a circuit court where, as here, (1) the appellant erroneously files a notice of appeal with the district court, rather than the circuit court, and (2) the appellant takes no corrective action to file the notice of appeal in the circuit court within thirty days of the rendition of the final judgment. Based on the controlling and indistinguishable authority of Lampkin-Asam v. District Court of Appeal, 364 So. 2d 469 (Fla. 1978), we conclude that the district court has no jurisdiction to entertain such an appeal, and, accordingly, we dismiss the instant appeal sua sponte for lack of jurisdiction. We recognize that the Florida Supreme Court has recently receded from Lamp-kin-Asam to the extent that it might conceivably prohibit a district court of appeal from (1) entertaining a timely notice of appeal filed in the circuit court as a timely petition for certiorari, Johnson v. Citizens State Bank, 537 So. 2d 96, 98 (Fla.1989), and vice versa, (2) from entertaining a timely petition for certiorari filed in the district court as a timely notice of appeal, Skinner v. Skinner, 561 So. 2d 260, 262 (Fla.1990). The narrow holding of Lampkin-Asam, however, has never been overruled and requires that we dismiss the instant appeal. Hoffman v. Jones, 280 So. 2d 431, 433-34 (Fla.1973).
Nonetheless, we agree that the continuing validity of Lampkin-Asam’s narrow holding may be open to question in view of the Johnson and Skinner cases. We accordingly certify the question stated at the outset of this opinion as being one of great public importance so as to permit further review of this decision by the Florida Supreme Court pursuant to Article V, Section 3(b)(4) of the Florida Constitution.
Appeal dismissed; question certified.
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Cayetano E. Alfonso v. Dep't OF Env't Reg., 616 So. 2d 44 (Fla. 1993)…HARDING, Justice. We have for review Alfonso v. State Department of Environmental Regulation, 588 So. 2d 1065 (Fla. 3d DCA 1991), in which the Third District Court of Appeal certified the following question as one of great public importance: [Wjhether a district court of appeal has jurisdiction to entertain an appeal from a final judgment of a circuit cour…
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Hernando Restrepo v. First Union Nat'l Bank of Fla., 591 So. 2d 1157 (Fla. 3d DCA 1992)…R THAN THE CIRCUIT COURT, AND (2) THE APPELLANT TAKES NO CORRECTIVE ACTION TO FILE THE NOTICE OF APPEAL IN THE CIRCUIT COURT WITHIN THIRTY DAYS OF THE RENDITION OF THE FINAL JUDGMENT.” ALFONSO v. STATE OF FLORIDA, DEPT. OF ENVIRONMENTAL REGULATIONS, 588 So. 2d 1065, 1065 (FLA. 3D DCA 1991). Appeal dismissed; question certified.…
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Hernando Restrepo v. First Union Nat'l Bank OF Fla., 616 So. 2d 48 (Fla. 1993)…CUIT COURT, AND (2) THE APPELLANT TAKES NO CORRECTIVE ACTION TO FILE THE NOTICE OF APPEAL IN THE CIRCUIT COURT WITHIN THIRTY DAYS OF THE RENDITION OF THE FINAL JUDGMENT.” Id. at 1157 (quoting Alfonso v. State Department of Environmental Regulation, 588 So. 2d 1065, 1065 (Fla. 3d DCA 1991)). We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution. We answered the certified question in the affirmative in Alfonso v. State Department of Environmental Regulations, 616 So. 2d 44 (Fla.19…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- R.S. Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989)
- Skinner v. Skinner, 561 So. 2d 260 (Fla. 1990)
- Lampkin-Asam v. Dist. Court OF Appeal, 364 So. 2d 469 (Fla. 1978)