JOSE PABLO FERRER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An appellate court sanctioned counsel for violating appellate procedure rules by failing to serve the opposing party with a motion to hold an appeal in abeyance, and failing to file a required initial brief. The court issued a public reprimand and referred the matter to the Florida Bar, though it declined to hold counsel in contempt.
The court found that counsel violated the appellate rules by failing to serve all parties and that neither his written response nor oral explanation constituted good cause for non-compliance. Although the court declined to impose contempt sanctions at that time, it issued a public reprimand and warned of potential contempt findings in the future.
[1] An appellate court may dismiss an appeal when the appellant fails to prosecute the appeal by not preparing the record or filing briefs as required by appellate rules.
[2] Failure to respond to an order to show cause why a motion to dismiss an appeal should not be granted can lead to dismissal of the appeal.
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Join FLexlaw to unlock all legal intelligence“A copy of all documents filed pursuant to these rules shall, before filing or immediately thereafter, be served on each of the parties.”
The court cites the appellate rule requiring service on all parties, establishing that counsel's failure to serve the State violated a clear mandatory requirement.
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Join FLexlaw to unlock all legal intelligenceAppellant Ferrer filed a notice of appeal on June 24, 1982, and received multiple extensions to file his initial brief, with the final deadline set fo…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The notice of appeal was filed on June 24, 1982. Appellant received from the lower tribunal several extensions of time for preparing and transmitting the record on appeal and filing the initial brief. The last extension of time permitted appellant to file his initial brief on or before December 15, 1982.
On April 15, 1983, this court issued a sua sponte order directing appellant to show cause why the appeal should not be dismissed for failure to file an initial brief. In response to the order, counsel for appellant stated that as he was preparing the initial brief, appellant contacted him to advise that he did not want to pursue the appeal but instead intended to seek other relief. Counsel alleged that because he was of the opinion that such a course was not in appellant’s best interest, he sought leave of the court on December 23, 1982 to hold the appeal in abeyance to permit appellant to decide what he wanted to do. Appellant attached a copy of the motion to hold the appeal in abeyance to his response.
The purported motion to hold the appeal in abeyance was never received by this court.
Moreover, the motion was never received by the state because appellant intentionally failed to serve the state. In the body of the motion, appellant specifically states that because of the “unique nature of the request” the motion would not be served on appellee but that an additional copy of the motion was being sent to the court for forwarding to appellee should the court find it necessary. There is nothing in the appellate rules that authorizes this procedure. Florida Rule of Appellate Procedure 9.420(b) states: “A copy of all documents filed pursuant to these rules shall, before filing or immediately thereafter, be served on each of the parties.” The rule clearly states what is required. All documents filed shall be served on each party.
On May 11, 1983, this court directed counsel for appellant, Benedict P. Kuehne, Esquire, to appear before this court to show cause why he should not be held in contempt of this court and punished accordingly for his disregard of the appellate rules and his failure to properly prosecute this appeal.
We find that neither the written response to the order of April 15 nor the oral explanation made to the court constitutes good cause for counsel’s failure to comply with the appellate rules. Although we find that contempt is too severe a sanction to be imposed at this time, counsel is warned that any future violations of the appellate rules in this or any other case may result in a finding of contempt. By publication of this order, Benedict P. Kuehne, Esquire, is publicly reprimanded for the manner in which he has handled this appeal. A copy of this order will be forwarded to the Florida Bar for any action it may deem warranted. Further, counsel is instructed to send a copy of this order to his client and provide this court with a certificate showing such service.
IT IS SO ORDERED.
MILLS, BOOTH and SHIVERS, JJ., concur.