LIDESMOND BAKER vs VOLUSIA COUNTY SHERIFF'S OFFICE

• Court: District Court of Appeal of Florida
• Decided: March 3, 2023
• Docket: 22-1963
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

LIDESMOND BAKER,

Appellant, Case No. 5D22-1963 v. LT Case No. 2020-10883-CIDL

VOLUSIA COUNTY SHERIFF'S OFFICE,

Appellee. ________________________________/

Opinion filed March 3, 2023

Appeal from the Circuit Court for Volusia County, Kathryn D. Weston, Judge.

Lidesmond Baker, Trenton, pro se.

Peter McGlashan, of County of Volusia Legal Department, Deland, for Appellee.

PER CURIAM.

Lidesmond Baker appeals the final summary judgment entered against

him and in favor of Appellee, Volusia County Sheriff’s Office, on Appellee’s

complaint for forfeiture. The trial court’s final judgment was rendered on July 1, 2022, when the signed, written judgment was filed with the clerk of the

circuit court. See Fla. R. App. P. 9.020(h) (defining “[r]endition of an [o]rder”).

Baker, a pro se inmate, filed his notice of appeal on August 9, 2022, as

reflected by the stamp of the Lancaster Correctional Institution on the notice

bearing that date and initialed by Baker. See Fla. R. App. P. 9.420(a)(2)(A).

To invoke the jurisdiction of this court to review the final judgment in

this case, Baker’s notice of appeal must have been filed with the clerk of the

circuit court within thirty days of rendition of the final judgment. See Fla. R.

App. P. 9.110(b). As the notice of appeal was not filed within thirty days, we

are precluded from exercising jurisdiction; and the appeal must be

dismissed. See Pennywell v. Dep’t of Rev. ex rel. Woodard, 62 So. 3d 19,

20 (Fla. 1st DCA 2011) (“The filing deadline is jurisdictional, and the untimely

filing of a notice of appeal precludes the [appellate] court from exercising

jurisdiction over the appeal.” (citing Peltz v. Dist. Ct. of Appeal, Third Dist.,

605 So. 2d 865, 866 (Fla. 1992); Mekertin v. Winn Dixie Stores, Inc., 869 So.

2d 1286, 1288 (Fla. 4th DCA 2004))).

APPEAL DISMISSED

MAKAR and JAY, JJ., concur. LAMBERT, C.J., concurs specially, with opinion.

2 LAMBERT, C.J., concurring specially. Case No. 22-1963 LT Case No. 2020-10883-CIDL

I concur with the majority opinion. We are required to dismiss this

otherwise meritless appeal of a properly entered final summary judgment

because our jurisdiction was not timely invoked.

I write briefly to discourage the practice used by the trial court in this

case where the court, in the certificate of service of its July 1, 2022 final

judgment, directed that copies of the judgment be sent to parties of record

by eService and that the Volusia County Sheriff’s Office also “serve” Baker

with a copy of the judgment “and file proof thereof.”

I have no quarrel with serving a copy of the judgment by eService.

However, there is no indication in our brief record that Baker, who is

presently incarcerated in the Department of Corrections, had an eService

address, nor is it likely that he does. Thus, Baker had to rely on opposing

counsel to obtain a copy of the final judgment. Our record shows that

counsel filed a certificate, dated July 6, 2022, representing that he mailed a

copy of the July 1, 2022 judgment to Baker at the Lancaster Work Camp

address in Trenton, Florida, which is Baker’s address as indicated in his pro

se notice of appeal.

I do not question that counsel did as directed. Moreover, when Baker

may have actually received his copy of the final judgment is not dispositive

3 because, as the majority correctly holds, the time to file a notice of appeal

runs from the date that the order is rendered, not the date that the order is

received by the inmate appellant. See Ashley v. State, 845 So. 2d 1008,

1009 (Fla. 5th DCA 2003).

Whether the procedure used by the trial court provides Baker with

some later avenue to move to set aside the current judgment and pursue an

appeal of an order entered on that motion is not before us. Nevertheless, as

the procedure used here brings into play matters that are wholly avoidable,

I urge trial courts not to place a duty on counsel to serve an opposing pro se

inmate party with copies of orders or judgments.