Am I Entitled To A Belated Appeal In A Civil Matter?

Your time to file your notice of appeal has run out.  Are you entitled to a belated appeal? Generally, in a civil proceeding, the appellate court lacks jurisdiction to grant you a belated appeal.  See Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014); Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286 (Fla. 4th DCA 2004).

But you had no timely notice of the entry of the order.  Does that matter? The fact that a party did not have timely notice of the entry of the order may not extend the jurisdictional time limit for appeal.  See Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014).  In other words, the appellate court may be precluded from granting you a belated appeal.

However, there may be another way.  You may be able to file a Florida Rules of Civil Procedure Rule 1.540(b) motion in the lower court arguing that the order should be set aside due to lack of notice and request that a new order be entered so that the right of appeal is preserved.  See Diamond Drywall Systems, Inc. v. Mashan Contractors, Inc., 943 So. 2d 267 (Fla. 3d DCA 2006); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971).

But what if you had timely notice, however, your attorney failed to timely file the notice of appeal.  Does that matter?  If this is a termination of parental rights matter, then yes it does.  In Interest of E.H., the Florida Supreme Court held that in a case involving termination of parental rights, parents are entitled to belated appeals based on ineffective assistance of counsel when their attorneys fail to timely file the notices of appeal. See In Interest of E.H., 609 So. 2d 1289 (Fla. 1992). The Florida Supreme Court further found that the proper procedural vehicle for seeking the appeal in such a case was by filing the petition for writ of habeas corpus with the trial court. Id.