Broxton v. State Board of Education

DAUKSCH, Judge. ON MOTION TO DISMISS Appellee moves to dismiss this appeal on the basis that this court lacks jurisdiction because the notice of appeal was not timely filed. He cites Butterfield v. Dept. of Environmental Regulation, 470 So.2d 95 (Fla. 5th DCA 1985) as authority and says that because appellant did not file the notice of appeal with the agency clerk, the Department of Education, within the proper time — thirty days from the rendering of the decision below — that this court should dismiss the appeal. A closer reading of Butterfield and consideration of Hines v. Lykes Pasco Packing, 374 So.2d 1132 (Fla. 2d DCA 1979) and Franchi v. Florida Dept. of Commerce, Div. of Employment Sec., Bd. of Review, 375 So.2d 1154 (Fla. 4th DCA 1979) is warranted. In Hines and Franchi it was held that “... an appeal of an administrative order [is] commenced when a copy of the notice of appeal [is] filed in the appellate court....” We agree with this holding and add that the original notice of appeal filed in this court must logically also suffice, upon the same reasoning as in those cases. It should be noted that Butterfield says “... file a notice of appeal in [the agency] or in this court ...” within the requisite thirty days time. MOTION DENIED. HARRIS and PETERSON, JJ., concur.