EDWARD ARTHUR SURRATT, APPELLANT,
v.
J.T. FREEMAN, WARDEN, CENTURY CORRECTIONAL INSTITUTION, APPELLEE
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Surratt appealed a denial of his petition for writ of mandamus seeking to compel the Department of Corrections to enforce its smoking prohibition. The court dismissed the appeal as untimely, holding that because the underlying mandamus petition did not seek review of quasi-judicial administrative action, the motion for rehearing was governed by civil procedure rules requiring service within ten days, not appellate procedure rules allowing fifteen days.
The court held that the appellant's motion for rehearing should have been served within ten days under Florida Rule of Civil Procedure 1.530(b), not within fifteen days under Florida Rule of Appellate Procedure 9.330. Because the motion was not timely served, it failed to delay rendition of the order, making the notice of appeal untimely and depriving the appellate court of jurisdiction.
[1] A motion for rehearing in an extraordinary writ proceeding in circuit court is governed by Florida Rule of Appellate Procedure 9.330 when the proceeding involves an appel…
[2] A motion for rehearing is governed by Florida Rule of Civil Procedure 1.530(b) when the petition for extraordinary writ does not seek review of quasi-judicial administrat…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This Court has held that where an extraordinary writ proceeding in the circuit court involves an appellate remedy, the time for filing a motion for rehearing is governed by Florida Rule of Appellate Procedure 9.330, rather than Florida Rule of Civil Procedure 1.530.”
Establishes the general rule distinguishing between appellate and civil procedure rules for motions for rehearing in extraordinary writ proceedings.
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Join FLexlaw to unlock all legal intelligenceSurratt filed a petition for writ of mandamus in circuit court seeking to compel the Department of Corrections to enforce its own prohibition against …
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PER CURIAM.
On November 28, 2005, the Court issued an order directing the appellant to show cause why the appeal should not be dismissed as untimely, specifically pointing out that it was not apparent whether the appellant’s motion for rehearing had effectively delayed rendition of the underlying order denying his petition for writ of mandamus.
In response, the appellant argues that his motion for rehearing was timely filed within 15 days of the order denying his petition for writ of mandamus, pursuant to Florida Rule of Appellate Procedure 9.330. The appellant has also filed a motion for leave to amend the response in which he argues alternatively that his motion was timely filed pursuant to Florida Rule of Civil Procedure 1.530(b). The motion is granted and the response is accepted.
Upon consideration of the appellant’s response and amended response, which the Court accepts, the Court has determined that the appellant’s notice of appeal failed to timely invoke this Court’s jurisdiction. This Court has held that where an extraordinary writ proceeding in the circuit court involves an appellate remedy, the time for filing a motion for rehearing is governed by Florida Rule of Appellate Procedure 9.330, rather than Florida Rule of Civil Procedure 1.530. See Newell v. Moore, 826 So. 2d 1033 (Fla. 1st DCA 2002).
Here, however, the appellant sought to compel the Department of Corrections to enforce its own prohibition against smoking in institution buildings. Unlike the petition for relief at issue in Newell, the petition did not seek review of quasi-judicial administrative action.
Thus, Newell is inapplicable and the appellant’s motion should have been served within ten days of the entry of the denial order. See Fla. R. Civ. P. 1.530(b). Because the appellant’s motion for rehearing was not served within ten days of the May 16, 2005, entry of the order denying mandamus relief, the motion failed to delay rendition of the order on appeal and the notice of appeal is consequently untimely.
Accordingly, the appeal is hereby dismissed for lack of jurisdiction.
BARFIELD, WEBSTER, and BENTON, JJ., concur.