ROBERTO RIVERA, M. D.,

Appellant,

v.

DEPARTMENT OF HEALTH,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-0287

_____________________________/

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:

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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 

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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.

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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 

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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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