FLORIDA SUGAR CANE LEAGUE, INC., AND THE FLORIDA FRUIT AND VEGETABLE ASSOCIATION, APPELLANTS,
v.
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLEE
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The Florida Sugar Cane League and Florida Fruit and Vegetable Association appealed the Florida Department of Environmental Regulation's denial of their petition for rulemaking on Everglades water quality standards. The department moved to dismiss the appeal, arguing the original order was superseded by a subsequent amended order, but the court found the notice of appeal timely as to either order and denied the dismissal motion.
The court held that the notice of appeal is timely as to whichever of the two departmental orders is final and appealable, and that the misidentification of the specific order in a notice of appeal, without more, is not grounds for dismissal.
[1] A notice of appeal is not subject to dismissal for identifying the wrong order, provided the appeal is timely as to the correct order.
[2] An amended order may supersede and render a prior order null and void, even if the amended order does not expressly state that the prior order is vacated.
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Join FLexlaw to unlock all legal intelligence“We agree with appellants that the notice of appeal is timely as to whichever of the department's two orders are final and ap-pealable.”
Establishes the holding that timeliness is evaluated against either final order, not the specific one identified.
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Join FLexlaw to unlock all legal intelligenceThe League petitioned the department to initiate rulemaking concerning water quality standards for the Florida Everglades. The department denied the p…
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ORDER ON APPELLEE’S MOTION TO DISMISS
PER CURIAM.
Appellants, Florida Sugar Cane League, Inc, and the Florida Fruit and Vegetable Association (League), filed a petition with the Department of Environmental Regulation (department) to initiate rule-making concerning water quality standards for the Florida Everglades. The petition was denied by an order of May 15, 1991. On May 21, counsel for the League wrote to the Secretary of the department, complaining of a purported factual misrepresentation in the order. On June 7, the department issued an order which treated the letter as a motion to amend a clerical error in the order and the motion was granted. The department concluded, however, that the decision to deny the petition was nevertheless correct and the letter, treated as a motion for rehearing, was otherwise denied. On June 14, 1991, the League filed a notice of appeal of the “apparent final order” of May 15.
The department now moves for dismissal of this appeal for lack of jurisdiction. It argues that the order of May 15 was superseded and rendered null and void by the amended final order of June 7. Appellants oppose dismissal, pointing out that the order of June 7 failed to expressly state that the earlier order was vacated. Even if that were the effect of the June 7 order, the notice of appeal is timely as to it and this court’s jurisdiction has been timely invoked.
We agree with appellants that the notice of appeal is timely as to whichever of the department’s two orders are final and appealable.1
Although not articulated by the appellee, there is an implied argument in the motion to dismiss that the order of June 7 was final and that appellee’s identification of the May 15 order in the notice of appeal has resulted in a jurisdictional defect. The identification of the wrong order in a notice of appeal, without more, is not grounds for dismissal. Skinner v. Florida Power Corp., 564 So. 2d 572 (Fla. 1st DCA 1990); Puga v. Suave Shoe Corp., 417 So. 2d 678 (Fla. 3d DCA 1981).
Based on the foregoing, we find no merit to appellee’s motion to dismiss and accordingly, it is DENIED.
SHIVERS, WIGGINTON and ZEHMER, JJ., concur. . Because the notice of appeal is timely as to both orders, it is unnecessary for this court to determine at this time which one is ''final” for purposes of invoking appellate jurisdiction. If such a determination were required, it would appear the agency is correct that the June 7 order is appealable. Taylor v. Department of Professional Regulation, 520 So. 2d 557 (Fla.1988).
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- Robustiano Puga & Medmold, Inc. v. Suave Shoe Corp., 417 So. 2d 678 (Fla. 3d DCA 1981)
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- Skinner v. Fla. Power Corp., 564 So. 2d 572 (Fla. 1st DCA 1990)