The Late Rehearing Motion and the Jurisdictional Notice of Appeal
Attorney represents a plaintiff in a breach-of-contract action in Miami-Dade Circuit Court. On January 6, 2025, the court enters a final judgment in favor of the defendant after a bench trial. Plaintiff's counsel serves a motion for rehearing on January 27, 2025, 21 days after entry of judgment, arguing that the court overlooked evidence. The trial court denies the motion on February 20, 2025, and the order is filed the same day. Plaintiff wants to appeal. Counsel files a notice of appeal on March 5, 2025. Defendant moves to dismiss the appeal as untimely. Plaintiff argues that the rehearing motion tolled rendition and that the notice was filed within 30 days of the order denying rehearing. The record shows no extension of time was requested or granted. Florida Rules of Civil Procedure and Appellate Procedure govern.
1. Was the notice of appeal timely? Explain the effect of the January 27 rehearing motion on rendition and the 30-day deadline.
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Under Florida Rule of Appellate Procedure 9.110(b), a notice of appeal in a civil case must be filed within 30 days of rendition of the order to be reviewed. Rendition is defined by rule 9.020(h). A timely and authorized motion for rehearing postpones rendition until the motion is disposed of. The key word is timely. In a non-jury case, rule 1.530(b) requires a motion for rehearing to be served within 15 days after service of the final judgment. The January 27 motion was served 21 days after the January 6 judgment, so it was untimely. An untimely rehearing motion does not toll rendition and cannot enlarge the jurisdictional appeal period. The judgment therefore became rendered on January 6, and the 30-day deadline was February 5. The March 5 notice was 28 days late. The order denying the untimely motion does not create a new rendition date for the final judgment. The appeal should be dismissed for lack of jurisdiction.
2. If the notice is untimely, is there any available remedy in the appellate court, such as a motion to extend or a petition for belated appeal? Distinguish civil and criminal practice.
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No. Florida Rule of Appellate Procedure 9.300(b) permits extensions of time for most acts, but it cannot extend the time to file a notice of appeal; that deadline is jurisdictional. A belated appeal under rule 9.141 is available only in criminal cases, not civil. The plaintiff's possible remedies lie outside the direct appeal: a motion for relief from judgment under rule 1.540(b) in the trial court, if a recognized ground exists such as mistake or excusable neglect, followed by a timely appeal from the order disposing of that motion; or a legal malpractice action against counsel. A rule 1.540 motion is not a substitute for a timely appeal and does not automatically revive the lost appellate rights. Counsel should also consider whether the trial court had authority to treat the late rehearing motion as a rule 1.540 motion; even if it did, the order denying it would need to be appealed within 30 days. The safest conclusion is that the direct appeal is jurisdictionally barred.