The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-0715
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OMAR ELMOUKI,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Appellee.
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On appeal from an order of the Florida Department of
Transportation.
July 9, 2018
PER CURIAM.
Appellant seeks review of the letter issued by the
Commercial Motor Vehicle Review Board * rejecting his challenge
to one of the two citations he received while operating a
* The Review Board was created within the Department of
Transportation and has the authority to “review any penalty
imposed upon any vehicle or person under the provisions of
[chapter 316] relating to weights imposed on the highways by the
axles and wheels of motor vehicles, to special fuel and motor fuel
tax compliance, or to violations of safety regulations.” §
316.545(7), Fla. Stat.
commercial motor vehicle. We do not have jurisdiction to
consider the appeal because Appellant’s notice of appeal was not
timely filed. Accordingly, we dismiss this appeal.
By letter dated January 18, 2018, the Review Board
informed Appellant that he was entitled to a refund for one of the
citations but that he was entitled to “No Relief” for the other
citation. See § 316.545(8), Fla. Stat. (“[T]he review board is
authorized to modify, cancel, revoke, or sustain such penalty.”).
The letter—which constitutes final agency action, see Fla. Admin.
Code R. 14A-1.004(7) (“The Review Board’s decision . . . will be
final.”)—was accompanied by a “Notice of Right to Appeal”
stating that the letter may be appealed to a district court of
appeal “within thirty (30) days of rendition of this order.” The
letter includes what appears to be an electronic file-stamp
showing that it was filed with the clerk of the Department of
Transportation on “1/17/2018 4:14 PM” (emphasis added).
Appellant filed his notice of appeal on February 19, 2018.
Because the notice was filed more than 30 days after the date the
letter was filed with the clerk of the Department, we ordered
Appellant to show cause why this appeal should not be dismissed
as untimely. In response, Appellant argued that the appeal was
timely because the thirtieth day after the date of the letter was
Saturday, February 17, and the notice of appeal was filed on the
next business day.
The problem with Appellant’s argument is that the 30-day
period for filing the notice of appeal did not commence on the
date of the letter; instead, the period commenced when the letter
was “rendered” by filing with the clerk of the Department. See §
120.68(2)(a), Fla. Stat. (“All proceedings [for judicial review] shall
be instituted by filing a notice of appeal or petition for review in
accordance with the Florida Rules of Appellate Procedure within
30 days after the rendition of the order being appealed.”)
(emphasis added); Fla. R. App. P. 9.020(i) (“An order is rendered
when a signed, written order is filed with the clerk of the lower
tribunal.”). Accordingly, the period for filing the notice of appeal
commenced on January 17 and expired on Friday, February 16—
three days before Appellant’s notice was filed.
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Where, as here, the notice of appeal was not timely filed, we
have no choice but to dismiss the appeal for lack of jurisdiction.
See Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865, 866
(Fla. 1992) (“The untimely filing of a notice of appeal precludes
the appellate court from exercising jurisdiction.”); Griffis v. Dep’t
of Bus. & Prof. Reg., 90 So. 3d 320, 321 (Fla. 1st DCA 2012)
(“Because an appellate court has no jurisdiction to consider a
late-filed appeal, it must dismiss the appeal.”). That said, we
recognize the potential confusion caused by the Review Board’s
letter being dated the day after it was filed with the clerk of the
Department. See Pompi v. City of Jacksonville, 872 So. 2d 931,
932 (Fla. 1st DCA 2004) (reversing order denying motion to
vacate final judgment where the file-stamps on the judgment
included inconsistent dates that caused the appellant to miss the
deadline for filing a notice of appeal). However, any relief to
which Appellant may be entitled based on the conflicting dates
must be sought from the Review Board in the first instance. See
Durando v. Palm Beach Cty., 719 So. 2d 1258 (Fla. 1st DCA
1998); W.T. Holding, Inc. v. Agency for Health Care Admin., 682
So. 2d 1224, 1225 (Fla. 4th DCA 1996).
Accordingly, for the reasons stated above, this appeal is
dismissed. The dismissal is without prejudice to Appellant’s
right to petition the Review Board to vacate and reissue the
letter.
DISMISSED.
ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Omar Elmouki, pro se, Appellant.
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Marc Peoples, Department of Transportation, Tallahassee, for
Appellee.
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