LEWIS v. STATE (2006)

Upon consideration of the appellant's response to the Court's order of December 1, 2005, the Court has determined that the October 3, 2005, Order Denying Reimbursement of Filing Fees, is, in effect, an order denying rehearing of the court's October 22, 2004, Order Denying Motion for Refund of Filing Fees, which is not an appealable order.   See Fla. R.App. P. 9.130(a)(4).

It is clear from the record that the lower tribunal treated the appellant's initial motion for refund of the filing fee as a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540.   Thus, the October, 2004, order denying that motion would have been appealable to this Court pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).   However, to the extent that the appellant is seeking review of that earlier order, the appeal is untimely.   Because the appellant's Motion for Refund of Filing Fee, filed in the lower tribunal on June 16, 2005, was unauthorized, see Frantz v. Moore, 772 So.2d 581 (Fla. 1st DCA 2000), and untimely, see Florida Rule of Civil Procedure 1.530(b), the motion failed to delay rendition of the underlying order denying relief from judgment.   See Fla. R.App. P. 9.020(h).  Consequently, the notice of appeal is untimely with regard to the October 22, 2004, order.   Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

PER CURIAM.

BARFIELD, WEBSTER, and BENTON, JJ., concur.