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The 5th DCA recently reminded litigators of a well-established, but often forgotten, principle of law: a motion for reconsideration of a non-final order does not toll the time for filing a notice of appeal or a petition for certiorari. Here is what happened in Williams v. Lomeli. The trial court granted Lomeli’s motion to intervene on October 25, 2022. Unhappy, Williams moved for reconsideration. The trial court denied the motion. On November 30, 2022, Williams filed a notice of appeal, which the 5th DCA treated as a petition for certiorari.

The 5th DCA dismissed the petition for lack of jurisdiction. It explained a notice of appeal or petition for certiorari must be filed within thirty days of rendition of the order being appealed. “The thirty-day time limit is jurisdictional[.]” Williams’ motion for reconsideration did not toll the time to seek appellate review, because the order was non-final. Therefore, Williams’ notice of appeal was untimely.

Tips: Calendar the thirty-day deadline, and file the notice of appeal or petition for certiorari within thirty-day window. Filing a motion for reconsideration is fine, too, and such a motion will generally not result in dismissal of a notice of appeal or petition for certiorari. Rather, the appellate court will likely hold the matter in abeyance pending disposition of the motion. You may also want to consider moving to relinquish jurisdiction to give the trial court time to adjudicate the motion.

Final points:

  • An “authorized and timely filed” motion for rehearing (and certain other motions) from a FINAL order DOES toll the time to file a notice of appeal. Fla. R. App. P. 9.020(h).
  • “[I]f a notice of appeal is filed before the rendition of a [final] order, . . . the appeal shall be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion.” Fla. R. App. P. 9.020(h)(2)(C).
  • “If a motion postponing rendition pursuant to rule 9.020(h) is pending when the notice of appeal is filed, the notice of appeal shall indicate the pendency of such a motion and the date it was filed.” Fla. R. App. P. 9.110(d).
  • A post-opinion motion for rehearing of a decision from a circuit court sitting in its appellate capacity does not toll the time for petitioning for certiorari unless a timely motion to extend the issuance of the mandate has been filed under rule 9.340(b). Chiropractic Clinics of S. Florida, PL v. Responsive Auto Ins. Co., 250 So. 3d 729, 730 (Fla. 3d DCA 2018).
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