THOMPSON v. MILLENDER, 1D06-5637 (Fla.App. 1 Dist. 12-27-2006)

No. 1D06-5637.District Court of Appeal of Florida, First District.
Opinion filed December 27, 2006.

An appeal from the Circuit Court for Franklin County, William L. Gary, Judge.

Fred Joseph Thompson, pro se, Appellant.

John H. Sytsma, Apalachicola, for Appellee.

BROWNING, C.J., DAVIS, and LEWIS, JJ., CONCUR.

PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 9, 2006, the Court has determined that the appellant has failed to demonstrate that the notice of appeal timely invoked the Court’s jurisdiction. Specifically, the Court’s show cause order pointed out that it was not apparent whether the appellant’s motion for rehearing was timely served thus delaying rendition of the underlying order. The Court directed the appellant to submit a copy of the motion for rehearing bearing the date of service. However, the motion for rehearing bears no certificate indicating when the motion was served on the opposing party. Although the motion was filed within ten days of the date the underlying order was filed in the lower tribunal, it is the date of service that determines whether the motion was timely pursuant to Florida Rule of Civil Procedure 1.530. Pennington v. Waldheim, 669 So. 2d 1158 (Fla. 5th DCA 1996). Because it appears to the Court that the appellant’s notice of appeal was not timely filed, the appeal is hereby dismissed for lack of jurisdiction.

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