GEORGE CAUDLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this appellate procedure case, the Florida First District Court of Appeal addresses whether to dismiss Caudle's appeal for failure to timely file an initial brief. The court denies the dismissal motion, accepts the brief as timely, and uses the opportunity to address the persistent problem of attorney non-compliance with appellate filing deadlines.
The court denies the motion to dismiss and accepts the initial brief as timely filed. The court does not impose sanctions but uses the case to address the broader problem of attorney non-compliance with appellate filing deadlines.
[1] An appellate court may deny a motion to dismiss an appeal for failure to timely file an initial brief if the brief is subsequently filed and accepted by the court.
[2] Attorneys have a duty to request an extension of time when it becomes apparent that a brief will not be timely filed.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We find there is no excuse for an attorney's failure to request an extension of time when it becomes apparent that a brief will not be timely filed.”
Establishes the court's fundamental position that attorneys must proactively seek extensions rather than simply missing deadlines.
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Join FLexlaw to unlock all legal intelligenceCaudle's notice of appeal was filed May 10, 1985, making the initial brief due July 19, 1985. The clerk completed the record on June 20, 1985, and ser…
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ON MOTION TO DISMISS •
PER CURIAM.
Appellee moves to dismiss this appeal on grounds that appellant has failed to timely file an initial brief. Appellant’s notice of appeal was filed May 10, 1985, therefore the initial brief was due July 19, 1985. See Rule 9.110(f) Florida Rules of Appellate Procedure. Appellant has not requested an extension of time within which to serve the initial brief. Appellee urges that sanctions should be imposed pursuant to Rule 9.410,Florida Rules of Appellate Procedure, for this breach of the appellate rules and urges that dismissal would be an appropriate sanction. An order was entered directing appellant to show cause why this appeal should not be dismissed in light of the failure to timely file the initial brief.
Appellant filed a response to the order to show cause and states that Rule 9.110(e), Florida Rules of Appellate Procedure, requires the clerk of court to prepare the record and transmit it to the appellate court within 110 days from the date the notice of appeal was filed. The record in this case was completed by the clerk of the lower tribunal on June 20, 1985, and was served on appellant on July 8, 1985. Counsel contends that as this appeal involves an order of involuntary hospitalization under Chapter 394, Florida Statutes (1983), the brief could not be researched and prepared without the full record. Counsel further states that he “prepared the initial brief in this cause almost immediately upon receipt of the record”. Counsel asserts that as the case involves such a serious matter, it should be treated in the same manner as an appeal in a capital case, where the briefing schedule does not begin until after the record is filed. See Rule 9.140(b)(4)(B), Florida Rules of Appellate Procedure.
The failure of attorneys to timely file briefs has become a persistent and pervasive problem for this court. The example presented by this case is by no means the first, nor the most egregious that we have faced. However, the amount of judicial time and effort, as well as the time and effort of support personnel, expended as a result of these breaches of the appellate rules has compelled us to utilize the instant case to comment on this problem.
We find there is no excuse for an attorney’s failure to request an extension of time when it becomes apparent that a brief will not be timely filed. In the past, this court has been extremely liberal in granting extensions of time if the opposing party did not object. While this policy is now being revised due to abuse resulting from our leniency in granting such motions, we will continue to grant such motions when a party shows good cause for not serving the brief in a timely fashion. We do not consider counsel’s “heavy case load” good cause for requesting numerous extensions.
We have been reluctant to dismiss cases for failure to timely serve a brief or for failing to timely request an extension of time as to do so would be to penalize the litigant for the shortcomings of counsel. See Winstead v. Adams, 363 So. 2d 807 (Fla. 1st DCA 1978). While we do not foreclose dismissal as a sanction for breaches of the Florida Rules of Appellate Procedure, we do reaffirm our position that it is a sanction which should be employed sparingly and only in those cases where the violations are repeated or serious. It should be noted, however, that dismissal is not the only sanction available under Rule 9.410, Florida Rules of Appellate Procedure, for breaches of appellate procedure. Other options available to the court include reprimand, striking of briefs or pleadings, costs, attorney fees, or contempt. The rule also provides for other sanctions fashioned by the court.
Turning to the instant case, we express no opinion on appellant’s argument that he should not be required to file a brief until he is in receipt of the complete record. We would point out to appellant that this court does not promulgate the rules governing appellate procedure but is charged with ensuring compliance therewith. We decline to dismiss this case or to impose other sanctions on appellant or counsel for appellant. The initial brief submitted with the response to our order to show cause is accepted as timely filed and this case shall go forward to be decided on its merits. Accordingly, the motion to dismiss is denied.
BOOTH, C.J., and MILLS and JOANOS, JJ., concur.
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Krebs v. State, 588 So. 2d 38 (Fla. 5th DCA 1991)…should be employed sparingly and only after repeated violations or contumacious disregard of a court's orders. See, e.g., Bixby v. Bixby, 546 So. 2d 112 (Fla. 1st DCA 1989); Ferguson v. Ferguson, 504 So. 2d 541 (Fla. 1st DCA 1987); Caudle v. State, 478 So. 2d 359 (Fla. 1st DCA 1985); Kerr McGee Chemical Corp. v. Lipford, 395 So. 2d 249 (Fla. 1st DCA 1981). Here, Krebs’ appellate counsel filed the initial brief late, the only violation. We are reluctant to interfere with the lower tribunal’s judgment of sanc…
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Teal v. State, 503 So. 2d 448 (Fla. 2d DCA 1987)…he state counters that the dismissal of Teal’s appeal was justifiable as a sanction, albeit extreme, for failure to prosecute the appeal in a timely fashion. See, e.g., In re Order as to Sanctions, 495 So. 2d 187 (Fla. 2d DCA 1986); Caudle v. State, 478 So. 2d 359 (Fla. 1st DCA 1985). If such failure was attributable to counsel’s neglect, Teal’s remedy is a petition for habeas corpus in the appellate (circuit) court. Smith v. State, 400 So. 2d 956 (Fla.1981). Dismissal is a harsh sanction, to be applied only…
Authorities Cited
- Winstead v. Adams, 363 So. 2d 807 (Fla. 1st DCA 1978)