Opinion
Case No. 2:02-cv-593-FTM-29DNF, Bankr. No. 0l-00526-9P7, Adversary No. 01-00062
January 9, 2003
ORDER
This matter comes before the Court on appellant's Motion for Rehearing of Order and Judgment in a Civil Case Dismissing Appeal Dated December 12, 2002 (Doc. #9), filed December 20, 2002, from the Court's December 12, 2002, Order (Doc. #6) dismissing the appeal for lack of jurisdiction. The government filed an Opposition (Doc. #11) on January 2, 2003.
Appellant argues that the Motion for Rehearing, filed in the United States Bankruptcy Court, was not untimely or filed on the eleventh day after the entry of the Final Judgment (Bankr. Doc. #74). Appellant argues that the Final Judgment was entered on September 24, 2002, and the Motion for Rehearing was docketed on October 4, 2002. The Court does not disagree with appellant that the Motion for Rehearing was filed on October 4, 2002, however, October 4, 2002, is one day late.
As previously stated, the ten day period begins to run from the date the order or judgment is entered, not the date it is served or received by the party. In re Williams, 216 F.3d 1295, 1297 n. 3 (11th Cir. 2000);In re Southeast Bank Corp., 97 F.3d 476, 478 (11th Cir. 1996). In this case, the Order was entered on September 24, 2002, therefore, the Motion for Rehearing was to be filed on or before October 3, 2002, to toll the appeal time. The Motion was filed one day late and therefore was not timely.
Accordingly, it is now
ORDERED AND ADJUDGED:
1. Appellant's Motion for Rehearing of Order and Judgment in a Civil Case Dismissing Appeal Dated December 12, 2002 (Doc. #9) is DENIED. The Clerk shall forward a certified copy of this Order to the Eleventh Circuit Court of Appeals.
2. Appellee's Motion to Dismiss Appeal (Doc. #8) is DENIED as moot.
3. Appellant's Motion for Extension of Time to File Appellate Brief (Doc. #12) is DENIED as moot.