IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ROBERTO RIVERA, M. D., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-0287
DEPARTMENT OF HEALTH,
Appellee.
_____________________________/
Opinion filed April 15, 2015.
An appeal from an order of the State of Florida, Board of Medicine.
Chandra Prine, Interim Executive Director, for Nabil El-Sanadi, M.D., Chair.
Roberto Rivera, M. D., pro se, Appellant.
Therese A. Savona, Tallahassee, for Appellee.
PER CURIAM.
ORDER ON JURISDICTION
Roberto Rivera, an inmate housed in the Bergen County Jail in Hackensack,
New Jersey, appeals a final administrative order of the Florida Department of
Health, Board of Medicine, suspending his medical license and imposing an
administrative fine. Concerned that the Court’s jurisdiction had not been timely
invoked, we directed appellant to show cause why this appeal should not be
dismissed for lack of jurisdiction, directing appellant’s attention to the Florida
Supreme Court’s recent amendment to Florida Rule of Appellate Procedure
9.420(a)(2), governing inmate filing. Appellant failed to adequately respond to the
Court’s show cause order. We are concerned that incarcerated litigants may fail to
understand the effect of the amendment and write to ensure that incarcerated
litigants filing documents with the courts of this state are familiar with the recent
amendment to rule 9.420(a)(2), and that they understand the burden the rule places
on them to demonstrate timely filing.
In Houston v. Lack, 487 U.S. 266 (1988), the United States Supreme Court
adopted the “mailbox rule” for incarcerated litigants and held that a petition or
notice of appeal filed by a pro se inmate was deemed filed at the moment in time
when the inmate lost control over the document by entrusting its further delivery or
processing to agents of the state. In Haag v. State, 591 So. 2d 614, 617 (Fla.1992),
the Florida Supreme Court adopted the mailbox rule. The mailbox rule for inmate
filings is codified in rule 9.420(a)(2), Florida Rules of Appellate Procedure.
The Florida Supreme Court recently amended Florida Rule of Appellate
Procedure 9.420(a)(2). In re Amendments to Florida Rules of Appellate
Procedure, 2014 WL 5714099 *20-21 (Fla. Nov. 6, 2014). As it pertains to this
discussion, the rule was amended to provide:
2
Rule 9.420(a)(2) Inmate Filing. A document filed by a
pro se inmate confined in an institution is timely filed if
the inmate places the document in the hands of an
institution official for mailing on or before the last day
for filing. Such a document shall be presumed to be
timely filed if it contains a certificate of service certifying
that the inmate placed the document in the hands of an
institution official for mailing on a particular date, and if
the document would have been timely filed had it been
received and file-stamped by the court on that date. The
filing date of a document filed by a pro se inmate
confined in an institution shall be presumed to be the date
it is stamped for filing by the clerk of the court, except as
follows:
(A) The document shall be presumed to be filed
on the date the inmate places it in the hands of an
institutional official for mailing if the institution has a
system designed for legal mail, the inmate uses that
system, and the institution's system records that date, or
(B) The document shall be presumed to be filed
on the date reflected on a certificate of service contained
in the document if the certificate is in substantially the
form prescribed by subdivision (d)(1) of this rule and
either:
(i) the institution does not have a system designed
for legal mail; or
(ii) the inmate used the institution's system
designed for legal mail, if any, but the institution's
system does not provide for a way to record the date the
inmate places the document in the hands of an
institutional official for mailing.1
1
Deletions from the text of the rule are indicated by strikethrough and additions
are indicated by underlined text.
3
Previously, the rule allowed an inmate to demonstrate the timely filing of a
document by certifying that it had been placed in the hands of institution officials
for mailing in a timely manner. The date on the certificate of service was
presumed to be the date of filing unless the document also bore an institutional
mail stamp contradicting that date, and indicating that the document had actually
been placed in the hands of officials in an untimely manner, in which case the
institution stamp is presumed to be correct. See Crews v. Malara, 123 So. 3d 144
(Fla. 1st DCA 2013).
As amended, the rule provides that when the institution has a system
designed for legal mail that records the date a document is placed in the hands of
an institution official for mailing and the inmate uses that system, then the date of
filing will be presumed to be the date recorded by the institution’s legal mail
system. If the inmate does not use the system designed for legal mail, the date of
filing shall be presumed to be the date it is stamped for filing by the clerk of the
court. If the institution does not have a legal mail system, or it has a legal mail
system that does not record the date a document is placed in the hands of an
institution official for mailing, then the date contained in the certificate of service
is presumed to be the date of filing.
Now, under rule 9.420(a)(2), in order to receive the benefit of the mailbox
rule, an inmate housed in an institution that has a system designed for handling
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legal mail which provides a way to record when the document was relinquished to
institution officials for mailing, must use that system. The Florida Department of
Corrections (DOC) promulgated administrative rule 33-210.102(8)(g), to put in
place a system for handling legal mail in its constituent institutions. 2 The rule
provides for the recording of the date the document is handed to institution
officials for mailing. Therefore, an inmate housed in a DOC institution
presumably has the opportunity to file a notice of appeal or original petition using
that legal mail system.
2
Rule 33–210.102(8)(g), Florida Administrative Code, provides:
Inmates shall present all outgoing legal mail unsealed to
the mail collection representative to determine, in the
presence of the inmate, that the correspondence is legal
mail, bears that inmate's return address and signature, and
that it contains no unauthorized items.... [T]he mail
collection representative shall stamp the document(s) to
be mailed and the inmate's copy, if provided by the
inmate. The date stamp shall be in the following format:
“Provided to (name of institution) on (day, month and
year blank to insert date) for mailing, by (officer's
initials).” The mail collection representative shall then
have the inmate initial the document(s) next to the stamp
and have the inmate seal the envelope in the mail
collection representative's presence. For confinement
areas, the staff member who picks up the legal mail each
day shall stamp the documents, have the inmate place his
or her initials next to the stamp, and have the inmate seal
the envelope in the staff member's presence. The use of
mail drop boxes for outgoing legal mail is prohibited.
5
Rule 9.420(a)(2) nonetheless applies to all inmate filings, not just filings
originating from DOC institutions. Where an incarcerated litigant is housed at an
institution that has no system for handling legal mail, or if it has a system that does
not provide for recording the date on which a document is handed to institution
officials for mailing, the inmate may rely on the certificate of service to
demonstrate when the document was relinquished to institution officials, and
therefore filed pursuant to the mailbox rule. In that circumstance, however, the
inmate must demonstrate that he is either in an institution that has no system for
handling legal mail or that the system in place does not provide for recording the
date a document is turned over for mailing so as to show that he is entitled to rely
on the certificate of service. Absent such a showing, the court must presume the
filing date to be the date the document was received by the clerk of the court.
In this case, it remains unclear whether the Bergen County Jail, where
appellant Rivera is housed, has a system designed for legal mail that records the
date on which documents are handed to institution officials for mailing. Thus, it is
not apparent whether Rivera is entitled to rely on the date on the certificate of
service to demonstrate when the notice of appeal was relinquished to institution
officials, or whether the date the notice of appeal was received by the clerk of the
court is the presumptive date of filing. In light of the foregoing discussion,
appellant is afforded an additional opportunity to demonstrate that the notice of
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appeal was timely filed. Appellant shall specifically address whether the Bergen
County Jail has a system for handling legal mail and whether that system, if any,
provides a means to record the date on which a document is handed to institution
officials for mailing. Appellant’s response shall be filed within 20 days of the date
of this order.
WOLF, THOMAS, and RAY, JJ., CONCUR.
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