RUSSELL BUFFALINO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Russell Buffalino appealed a contempt of court conviction and sentence, but the Florida District Court of Appeal dismissed the appeal due to lack of jurisdiction and res judicata principles. The court found the notice of appeal was filed more than 30 days after the judgment and was duplicative of a previously dismissed appeal.
The court lacks jurisdiction to entertain the appeal because the notice was filed beyond the 30-day deadline and because the appeal is barred by res judicata and law of the case principles as a duplicate of a prior appeal that was properly dismissed.
[1] A notice of appeal filed more than 30 days after the entry of the judgment of conviction and sentence under review renders the appellate court without jurisdiction.
[2] An appeal previously dismissed for failure to prosecute cannot be relitigated through a subsequent notice of appeal without reinstatement of the prior appeal.
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Join FLexlaw to unlock all legal intelligence“the notice of appeal was filed more than 30 days after entry of the judgment of conviction and sentence under review, and, accordingly, we lack jurisdiction to entertain such appeal”
Establishes the primary jurisdictional ground for dismissal under Florida statute and rules of appellate procedure
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Join FLexlaw to unlock all legal intelligenceBuffalino was convicted and sentenced for contempt of court in the Circuit Court for the Eleventh Judicial Circuit on September 19, 1978. He filed an …
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PER CURIAM.
This is an appeal from a judgment of conviction and sentence for contempt of court entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. The judgment of conviction and sentence under review was entered on September 19, 1978; the notice of appeal seeking review of this judgment and sentence was filed on May 2, 1980. On its face, it appeared that we lack jurisdiction to entertain this appeal as the notice was filed long after 30 days had expired from the entry of the judgment of conviction and sentence under review. § 59.081, Fla.Stat. (1979); Fla.R.App.P. 9.140(b)(2). We, accordingly, entered an order directing the appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. The appellant has filed a response which we have carefully considered.
It appears without dispute that on October 10, 1978, the appellant filed a previous notice of appeal in this cause in which he sought review of the same final judgment and sentence for contempt of court which is presently under review. This appeal was subsequently abandoned by the appellant, and was, accordingly, dismissed by this court for failure to prosecute the appeal. Buffalino v. State, 372 So. 2d 479 (Fla.3d DCA 1979). The appellant concedes that this dismissal was properly entered and has not sought to reinstate that appeal. Instead, the appellant has filed a second notice of appeal seeking review of the same adjudication and sentence for contempt.
We are compelled to dismiss the present appeal for two reasons. First, the notice of appeal was filed more than 30 days after entry of the judgment of conviction and sentence under review, and, accordingly, we lack jurisdiction to entertain such appeal. § 59.081, Fla.Stat. (1979); Fla.R.App.P. 9.140(b)(2). Secondly, the instant appeal has previously been dismissed for failure to prosecute and no effort has been made by the appellant to reinstate the prior appeal as, indeed, he concedes such appeal was properly dismissed, and, accordingly, this appeal is barred on res judicata, law of the case grounds. 3 Fla.Jur.2d “Appellate Review” § 415 (1978).
Appeal dismissed.