RICHARD J. LYNCH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Lynch sought a writ of certiorari challenging the dismissal of his criminal appeal after the trial court dismissed his appeal on August 5, 1981, despite having previously advised him he had until August 12, 1981 to file his brief. The appellate court granted the petition, finding the dismissal violated due process and the essential requirements of law, particularly where Lynch's brief was actually filed on August 7, 1981.
The dismissal constituted a departure from the essential requirements of law causing irreparable injury. The court granted the petition for certiorari and quashed the order denying the motion to reinstate the appeal, finding it contrary to fundamental fairness and due process to dismiss the appeal before the stated deadline when the brief was timely filed.
[1] A dismissal of an appeal entered before the expiration of a court-granted extension for filing a brief constitutes a departure from the essential requirements of law.
[2] Denying a motion to reinstate an appeal, when the appellant's brief was filed within the time frame set by the court, constitutes a departure from the essential requireme…
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Join FLexlaw to unlock all legal intelligence“It seems contrary to fundamental fairness, and thus a violation of petitioner's right to due process of law, to advise him that he had until August 12, 1981 to file his brief, and then dismiss the appeal on August 5th.”
The court's articulation of the due process violation at the heart of the case
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Join FLexlaw to unlock all legal intelligenceLynch was convicted in County Court and appealed to Circuit Court. On May 11, 1981, his public defender filed a motion to extend the time for filing t…
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ORFINGER, Judge.
Petitioner appealed to the Circuit Court from a judgment of conviction entered by the County Court. On May 11, 1981, the Public Defender’s office, on behalf of petitioner, filed in the Circuit Court a motion to extend the time for filing his initial brief because of delay in the preparation of the record on appeal, asserting that the State Attorney had no objection to the granting of the extension.1
Although no order was entered on the motion for extension of time, on July 29, 1981, the circuit judge wrote a letter to the Public Defender’s office advising that the appeal would be dismissed unless a brief was filed on or before August 12, 1981. A copy of the letter was filed in the court file. On August 5, 1981, the State served a motion to dismiss the appeal because the time for filing briefs had expired and appellant’s brief had not been filed. On the same day, without notice or a hearing, the court entered an order dismissing the appeal. A timely motion to reinstate the appeal was denied, despite a showing that appellant’s brief was filed on August 7, 1981, and petitioner seeks a writ of certiorari.
Petitioner alleges that the failure to reinstate the appeal in the light of the facts here constitutes a departure from the essential requirements of law, such as to cause petitioner irreparable injury which cannot be remedied by appeal. It seems contrary to fundamental fairness, and thus a violation of petitioner’s right to due process of law, to advise him that he had until August 12, 1981 to file his brief, and then dismiss the appeal on August 5th. In the light of the foregoing, and considering also the fact that petitioner’s brief was filed on August 7th, well within the time frame set by the court, there was a departure from the essential requirements of law which results in irreparable injury in the denial of petitioner’s motion to reinstate his appeal. See State v. Wagner, 403 So. 2d 1349 (Fla. 5th DCA 1981).
The petition for certiorari is GRANTED, and the order denying petitioner’s motion to reinstate the appeal is QUASHED.
DAUKSCH, C. J., and COBB, J., concur. . In his petition for writ of certiorari, petitioner repeats that assertion and in its response the State does not challenge its accuracy.