                                      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

                                           4
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

                                          6
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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