FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-0715

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OMAR ELMOUKI,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Appellee.

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On appeal from an order of the Florida Department of 

Transportation.

July 9, 2018

PER CURIAM.

Appellant seeks review of the letter issued by the 

Commercial Motor Vehicle Review Board* rejecting his challenge 

to one of the two citations he received while operating a 

 * The Review Board was created within the Department of 

Transportation and has the authority to “review any penalty 

imposed upon any vehicle or person under the provisions of 

[chapter 316] relating to weights imposed on the highways by the 

axles and wheels of motor vehicles, to special fuel and motor fuel 

tax compliance, or to violations of safety regulations.” § 

316.545(7), Fla. Stat. 
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commercial motor vehicle. We do not have jurisdiction to 

consider the appeal because Appellant’s notice of appeal was not 

timely filed. Accordingly, we dismiss this appeal.

By letter dated January 18, 2018, the Review Board 

informed Appellant that he was entitled to a refund for one of the 

citations but that he was entitled to “No Relief” for the other 

citation. See § 316.545(8), Fla. Stat. (“[T]he review board is 

authorized to modify, cancel, revoke, or sustain such penalty.”). 

The letter—which constitutes final agency action, see Fla. Admin. 

Code R. 14A-1.004(7) (“The Review Board’s decision . . . will be 

final.”)—was accompanied by a “Notice of Right to Appeal” 

stating that the letter may be appealed to a district court of 

appeal “within thirty (30) days of rendition of this order.” The 

letter includes what appears to be an electronic file-stamp 

showing that it was filed with the clerk of the Department of 

Transportation on “1/17/2018 4:14 PM” (emphasis added).

Appellant filed his notice of appeal on February 19, 2018. 

Because the notice was filed more than 30 days after the date the 

letter was filed with the clerk of the Department, we ordered

Appellant to show cause why this appeal should not be dismissed 

as untimely. In response, Appellant argued that the appeal was 

timely because the thirtieth day after the date of the letter was 

Saturday, February 17, and the notice of appeal was filed on the 

next business day.

The problem with Appellant’s argument is that the 30-day 

period for filing the notice of appeal did not commence on the 

date of the letter; instead, the period commenced when the letter 

was “rendered” by filing with the clerk of the Department. See § 

120.68(2)(a), Fla. Stat. (“All proceedings [for judicial review] shall 

be instituted by filing a notice of appeal or petition for review in 

accordance with the Florida Rules of Appellate Procedure within 

30 days after the rendition of the order being appealed.”)

(emphasis added); Fla. R. App. P. 9.020(i) (“An order is rendered 

when a signed, written order is filed with the clerk of the lower 

tribunal.”). Accordingly, the period for filing the notice of appeal 

commenced on January 17 and expired on Friday, February 16—

three days before Appellant’s notice was filed.
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Where, as here, the notice of appeal was not timely filed, we 

have no choice but to dismiss the appeal for lack of jurisdiction. 

See Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865, 866 

(Fla. 1992) (“The untimely filing of a notice of appeal precludes 

the appellate court from exercising jurisdiction.”); Griffis v. Dep’t 

of Bus. & Prof. Reg., 90 So. 3d 320, 321 (Fla. 1st DCA 2012) 

(“Because an appellate court has no jurisdiction to consider a 

late-filed appeal, it must dismiss the appeal.”). That said, we 

recognize the potential confusion caused by the Review Board’s 

letter being dated the day after it was filed with the clerk of the 

Department. See Pompi v. City of Jacksonville, 872 So. 2d 931, 

932 (Fla. 1st DCA 2004) (reversing order denying motion to 

vacate final judgment where the file-stamps on the judgment 

included inconsistent dates that caused the appellant to miss the 

deadline for filing a notice of appeal). However, any relief to 

which Appellant may be entitled based on the conflicting dates 

must be sought from the Review Board in the first instance. See 

Durando v. Palm Beach Cty., 719 So. 2d 1258 (Fla. 1st DCA 

1998); W.T. Holding, Inc. v. Agency for Health Care Admin., 682 

So. 2d 1224, 1225 (Fla. 4th DCA 1996).

Accordingly, for the reasons stated above, this appeal is 

dismissed. The dismissal is without prejudice to Appellant’s 

right to petition the Review Board to vacate and reissue the 

letter.

DISMISSED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Omar Elmouki, pro se, Appellant.
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Marc Peoples, Department of Transportation, Tallahassee, for 

Appellee.