STATE OF FLORIDA, APPELLANT,
v.
ALBERT E. NESSIM, APPELLEE
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The Florida Fourth District Court of Appeal granted the State's motion for rehearing en banc to reconsider whether it has jurisdiction to appeal a trial court's dismissal of charges for outrageous governmental misconduct. The court held that it retains jurisdiction over such appeals under Florida Rule of Appellate Procedure 9.140(c), regardless of whether the order is in final form, and declined to recede from its prior Quinn precedent.
The court held that it retains jurisdiction to appeal orders within the scope of Rule 9.140(c), including dismissal orders, regardless of whether the order is in final form. Russell is not applicable to appeals of orders authorized under Rule 9.140(c) because Rule 9.140(c) provides express jurisdictional authorization for such appeals.
[1] An order dismissing a criminal case for outrageous governmental misconduct, which does not discharge the defendant or contain language of finality, is a non-final order.
[2] Appellate courts lack jurisdiction to consider appeals from non-final orders in civil cases, except as specified by Florida Rule of Appellate Procedure 9.130(a).
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Join FLexlaw to unlock all legal intelligence“Russell is not applicable to the appeal of an order the subject of which is authorized as appealable under rule 9.140(c) as there is no jurisdictional restriction to our considering such an order, regardless of its form.”
Establishes the court's holding that Rule 9.140(c) provides express jurisdictional authorization for State appeals of dismissal orders, regardless of finality
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Join FLexlaw to unlock all legal intelligenceThe State appealed a trial court order granting the defendant's motion to dismiss for outrageous governmental misconduct. The trial court's order was …
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STONE, Judge.
We grant the state’s motion for rehearing en banc in order to maintain consistency with our prior opinion in State v. Quinn, 518 So. 2d 474 (Fla. 4th DCA 1988).
The state has appealed a trial court order “granting defendant’s motion to dismiss” for outrageous governmental misconduct. The order did not discharge the defendant or contain language of “finality.” Therefore, it is facially a non-final order. This court dismissed the appeal in this case on the authority of Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987). Russell, a civil ease, recognized that appellate courts lack the jurisdiction to consider appeals from non-final orders other than those cognizable under Florida Rule of Appellate Procedure 9.130(a), because that rule limits appellate consideration to those non-final orders specified in the rule. In Quinn, this court determined that the Russell holding is not applicable to appeals in criminal cases.
The initial panel in this appeal on rehearing proposed receding from Quinn and applying Russell to appeals by the state under Florida Rule of Appellate Procedure 9.140 where the order appealed is in non-final form, following the Fifth District opinion in State v. Sauafley, 15 F.L.W. 1718 (Fla. 5th DCA June 28, 1990) (sic) adopting a similar position. Rule 9.140(c)(1) authorizes the following appeals by the state:
(c) Appeals by the State. (1) Appeals Permitted. The State may appeal an order: (A) Dismissing an indictment or information or any count thereof; (B) Suppressing before trial confessions, admissions or evidence obtained by search and seizure; (C) Granting a new trial; (D) Arresting judgment; (E) Discharging a defendant pursuant to Fla.R.Crim.P. 3.191; (F) Discharging a prisoner on habeas corpus; (G) Adjudicating a defendant incompetent or insane;.... Upon consideration of the motion for rehearing en banc, we decline to recede from Quinn. Russell is not applicable to the appeal of an order the subject of which is authorized as appealable under rule 9.140(c) as there is no jurisdictional restriction to our considering such an order, regardless of its form.
We note that the Fifth District, en banc, has recently granted rehearing and declined to follow the opinion of the initial panel in Sauafley (sic). State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991).
Therefore, the motion for rehearing is granted and the order of this court dismissing this appeal for lack of jurisdiction is withdrawn.
HERSEY, C.J., and DOWNEY, ANSTEAD, LETTS, GLICKSTEIN, DELL, WARNER, POLEN, and GARRETT, JJ., concur. GUNTHER and FARMER, JJ., did not participate.
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State v. Feagle, 604 So. 2d 824 (Fla. 1st DCA 1991)…s appealable. The State argues Diamond is controlling and prohibits this court from dismissing this appeal. Finally, the State urges us to follow the Fourth and Fifth District Courts of Appeal which have held such orders appealable. State v. Nessim, 587 So. 2d 1343 (Fla. 4th DCA 1991) (en banc); State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991) (en banc). In civil cases this court has consistently held that an order which grants a motion to dismiss the complaint, but does not actually dismiss the complain…
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State v. DEN Besten, 374 So. 3d 874 (Fla. 6th DCA 2023)…id not expressly dismiss the Information. We conclude that the order is appealable, and we have jurisdiction. See State v. Feagle, 604 So. 2d 824, 824-25 (Fla. 1st DCA 1991) (citing State v. Diamond, 188 So. 2d 788 (Fla. 1966)); State v. Nessim, 587 So. 2d 1343, 1343-44 (Fla. 4th DCA 1991) (en banc); see also State v. Saufley, 574 So. 2d 1207, 1208-09 (Fla. 5th DCA 1991) (en banc) (an order granting a motion to suppress but not expressly suppressing evidence is appealable). Turning to the merits, the State…
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State v. A. M. C. (Fla. 2d DCA 2024)…stricts have found similar orders appealable. See State v. Den Besten, 374 So. 3d 874, 876 (Fla. 6th DCA 2023); State v. Jiborn, 135 So. 3d 364, 365 n.2 (Fla. 5th DCA 2014); State v. Feagle, 604 So. 2d 824, 825 (Fla. 1st DCA 1991); State v. Nessim, 587 So. 2d 1343, 1344 (Fla. 4th DCA 1991) (en banc); see also State v. Diamond, 188 So. 2d 788, 789 (Fla. 1966) (holding that an order granting a motion to quash an information, but not actually quashing it, is appealable). We agree with the reasoning of our siste…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987)
- State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991)
- State v. Quinn, 518 So. 2d 474 (Fla. 4th DCA 1988)