WELLS
v.
STATE
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The appellate court dismissed Willie Wells' appeal because his notice of appeal was filed before the final judgment and sentence were entered against him. This premature filing deprived the court of jurisdiction to hear his case.
No, the appeal was not properly before the court. The notice of appeal was filed prematurely, and the court lacked jurisdiction to hear the appeal.
“The attorney general has moved to dismiss the appeal as to Willie Wells on the ground that it was prematurely taken, the notice of appeal having been filed before the entry of judgment and sentence against him.”
States the basis for the motion to dismiss the appeal.
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Join FLexlaw to unlock all legal intelligenceWillie Wells, Odell Lowe, and James Lowe were convicted of larceny. After their motion for a new trial was denied, the trial judge entered final judgm…
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Willie Wells, Odell Lowe and James Lowe were convicted of larceny and they appeal. On motion by the Attorney General to dismiss the appeal as to Willie Wells.
Appeal dismissed. We have before us a motion to dismiss an appeal, filed by the Attorney General of Florida.
Willie Wells, Odell Lowe and James Lowe were tried in the Circuit Court of Hardee County for larceny. The jury returned a verdict of guilty against each of the defendants. The defendants filed a motion for new trial which was subsequently denied. On the day the order denying a new trial was entered the trial judge entered a final judgment and passed sentence on James Lowe and Odell Lowe. Later in the same day all defendants, by and through their attorney, filed a notice of appeal from the judgment and sentence. Seven days later the trial court proceeded to enter final judgment and pass sentence upon Willie Wells. No notice of appeal was ever filed thereafter by Willie Wells from the final judgment and sentence.
The attorney general has moved to dismiss the appeal as to Willie Wells on the ground that it was prematurely taken, the notice of appeal having been filed before the entry of judgment and sentence against him.
We have no other choice than to grant the motion to dismiss the appeal as to Willie Wells. Though the judicial power and jurisdiction of the Supreme Court exists under the Constitution the exercise thereof may be invoked only through specified common law or statutory methods. Burnett v. State, 144 Fla. 689,198 So. 500. Section 924.09, Florida Statutes, 1941, F.S.A., specifies the only method for taking appeals in criminal proceedings arising in the inferior courts. It prescribes that an appeal in a criminal proceeding may be taken by a defendant "only within ninety days after the judgment or sentence appealed from is entered, except that an appeal from both judgment and sentence may be taken within ninety days after the sentence is entered." Emphasis supplied. It is only by conformance with this statute that this court can acquire jurisdiction to hear the appeal of any defendant.
By the plain terms of section 924.09 the right of appeal does not accrue in criminal cases until after the entry of the judgment or judgment and sentence appealed from. At the time the defendant, through his attorney, filed his notice of appeal with the clerk of the court there was nothing to appeal from, because the judgment and sentence against the defendant were not entered until seven days later. *Page 465 Under the circumstances the appeal was prematurely brought and must be dismissed because we have no jurisdiction to hear it. 4 C.J.S., Appeal and Error, § 461, pages 936, 937; 24 C.J.S., Criminal Law, § 1648, page 244; 3 Am.Jur. pp. 146, 307, Appeal and Error, Sections 428, 730.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.
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Local Lodge No. 1248 OF Int'l Ass'n OF MacHinists v. ST. Regis Paper Co., 125 So. 2d 337 (Fla. 1st DCA 1960)…roll v. Sullivan, 160 Fla. 115, 33 So. 2d 735. . Union Tool Co. v. Wilson, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848. . Lewis v. Lewis, Fla.1955, 78 So. 2d 711; Pennekamp v. Circuit Court, etc., 155 Fla. 589, 21 So. 2d 41; Wells v. State, Fla.1949, 38 So. 2d 464. . Seaboard Airline Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529, 532. . Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. . Demetree v. State, Fla.1956, 89 So. 2d 498, 501. . Central & Southern Florid…
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Gerrald W. Finley v. State, 168 So. 2d 201 (Fla. 2d DCA 1964)…nder the provisions of Rule 3.18, F.A.R.3 but the state claims that the ninety day statutory period is absolute and cannot be waived or extended by the courts. The state cites Newsom v. State, Fla.1951, 54 So. 2d 58; Wells et al. v. State, Fla.1949, 38 So. 2d 464; Bell v. State, 1944, 154 Fla. 505, 18 So. 2d 361. These decisions were all written prior to the introduction of the 1954 Rules of Civil Procedure and Florida Appellate Rules now in effect. The question appears to be settled that such an appeal is…
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Schaeffer v. Louie L. Wainwright, 218 So. 2d 442 (Fla. 1969)…tate filed a motion to dismiss and an order was entered dismissing the appeal for the reason that the notice of appeal was not timely filed. Sec. 924.09, Florida Statutes, F.S.A.; Bell v. State, 154 Fla. 505, 18 So. 2d 361; and Wells v. State, Fla., 38 So. 2d 464. Petitioner now seeks relief by petition for writ of habeas corpus in this court from his sentence contending that he was denied his right to direct appeal because he was indigent and was further denied court-appointed counsel to prosecute his dire…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burnett v. State, 144 Fla. 689 (Fla. 1940)