          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1427
                  _____________________________

JEFFREY SUNDWALL,

    Appellant,

    v.

FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION,

    Appellee.
                  _____________________________


On appeal from the Florida Fish and Wildlife Conservation
Commission.


                           May 16, 2019


KELSEY, J.

    After Hurricane Irma struck Florida in 2017, the Florida
Fish and Wildlife Conservation Commission (FWC) identified Mr.
Sundwall as the owner of a boat declared derelict upon the
waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict
vessels and empowering FWC to deal with them). Mr. Sundwall
was incarcerated at the time. FWC sent Mr. Sundwall notice of
the declaration, an explanation of his rights, an Election of
Rights form, and a form for a Petition for Administrative
Proceeding. The notice stated that a failure to make any election
within twenty-one days from receipt of the notice would
constitute a waiver of the right to a hearing.
    Mr. Sundwall signed a receipt for these documents on
January 4, 2018. The twenty-first day after that fell on January
25, 2018. He signed the Election of Rights form, requesting a
hearing; and also completed the Petition for Administrative
Proceeding, dating both of his signatures January 20, 2018.
There was no certificate of service or institutional date stamp on
any of the papers, nor any institutional mail log indicating when
he gave the papers to prison officials. The envelope was
postmarked January 23, 2018. FWC stamped it as received on
January 29, 2018.

     FWC dismissed the petition with prejudice because FWC did
not receive it within twenty-one days and Mr. Sundwall did not
request an extension within that period. FWC’s order of dismissal
acknowledged that the envelope from Mr. Sundwall was
postmarked January 23, 2018. However, FWC relied on Florida
Administrative Code Rule 28-106.104(1), which defines filing as
receipt by the agency clerk during normal business hours.

    In his pro-se brief, Mr. Sundwall relies on the January 20
date of his signatures and the January 23 postmark date, arguing
that he is entitled to the benefit of the prison mailbox rule under
Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute
that argument, but argues that Mr. Sundwall provided no proof
that he placed his papers in the hands of prison officials before
expiration of the deadline; i.e., no institutional mail stamp or log
and no certificate of service. The record does not reflect whether
Mr. Sundwall’s institution utilizes dated mail stamps or logs, but
one reason there were no certificates of service is because none of
the forms that FWC supplied to him contained a certificate of
service. *

    * FWC argues that inmates should add certificates of service
to their documents, citing Thompson v. State, 761 So. 2d 324 (Fla.
2000). Thompson involved an inmate-prepared notice to invoke
discretionary jurisdiction, not a form prepared by a State agency
and provided to an inmate to be returned to the agency. Neither
the Election of Rights form nor the Petition even has room to
insert a certificate of service. See id. at 325 (“Should the State
wish to have a means of verifying or objecting to an inmate’s
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     In a literal sense, however, Mr. Sundwall “provided” FWC a
postmarked envelope that evidences timeliness. He argues on
appeal that FWC calculated the time erroneously, and he points
out that the envelope was postmarked on January 23. The
postmark date was before expiration of the twenty-one-day period
for requesting a hearing, and therefore the petition necessarily
was submitted to prison officials before the deadline. FWC
acknowledged the postmark date in its order of dismissal, and the
postmarked envelope is in the record. We therefore reverse the
order of dismissal and remand for further proceedings on Mr.
Sundwall’s petition.

    REVERSED and REMANDED.

ROWE and OSTERHAUS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jeffrey Sundwall, pro se, Appellant.

Brandy Elaine Elliott, Assistant General Counsel, Florida Fish
and Wildlife Conservation Commission, Tallahassee, for Appellee.




assertion that his or her pleading was actually placed in the
hands of prison or jail officials on a particular date, we leave it to
the State to create and implement the mechanism for doing so.”).

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