RICHARD KREBS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 5th DCA | 1991-10-24
No. 91-545
HARRIS and GRIFFIN, JJ„ concur.
588 So. 2d 38 Florida District Court of Appeal, Fifth District (1991) Positive Treatment
Cited by 30 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Richard Krebs sought certiorari review of a circuit court's dismissal of his county court appeal for failure to timely file his appellate brief. The Florida Fifth District Court of Appeal granted the writ, holding that dismissal was an excessively harsh sanction for a single procedural violation and remanded for consideration of alternative sanctions.


Holding

Dismissal of the appeal is too harsh a sanction for this single rule violation in a criminal case. While the court is reluctant to interfere with lower tribunal sanctions, it held that other remedies under the appellate rules, such as assessment of attorney's fees, are more appropriate.


Headnotes

[1] Dismissal of an appellate proceeding should be employed sparingly and only after repeated violations or contumacious disregard of a court's orders.

[2] Dismissal of an appeal is too harsh a sanction for a single rule violation, absent repeated violations or contumacious disregard.

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Key Quotes

“It is an established principle of law that dismissal of an appellate proceeding should be employed sparingly and only after repeated violations or contumacious disregard of a court's orders.”

Establishes the governing standard for when dismissal is appropriate as a sanction in appellate proceedings

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Facts & Procedural History

Krebs was convicted in county court of violating Florida's waterway navigation statute. The circuit court granted his belated request for an extension…

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Opinion of the Court
PETERSON, Judge.

PETERSON, Judge.

In its motion for rehearing, the state alleges that we misapprehended its legal argument and concluded that it challenged the jurisdiction of this court. We grant the motion, withdraw our previous opinion, and substitute the following:

Richard Krebs petitions for certiorari review of the circuit court’s dismissal of his appeal from the county court. We grant the writ. Combs v. State, 436 So. 2d 93 (Fla.1983). Krebs was convicted in the county court of violating section 327.-33(3)(a), Florida Statutes, governing navigation on waterways.

The circuit court granted Krebs’ belated request1 for an extension of time to file his initial appellate brief, but Krebs failed to meet the extended due date. One month and sixteen days after that due date, the state moved to dismiss the appeal. Krebs then filed his brief before the court ruled on the motion to dismiss. The state cited rules 9.300(a) and 9.410, Florida Rules of Appellate Procedure, as authority for the dismissal.

It is an established principle of law that dismissal of an appellate proceeding 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 sanctions appropriate to redress a violation of the rules, especially where, as here, appellant’s counsel compounded his error by failing to explain to the trial court, until he served a “supplement”2 to the “Motion for Reconsideration,” why the brief was not timely. Nevertheless, under the circumstances of this criminal case, dismissal of the appeal is too harsh a sanction. While it is true that Krebs missed the extended deadline to file his brief, it appears from the record and the representations of counsel that the error occurred because of incorrect “tickling” or “scheduling” of the new deadline upon receipt of the extension order.3 On January 3, 1991, a few days after service of the state’s motion to dismiss, appellant served his brief.

While we have concluded that dismissal of the appeal was too harsh a sanction for this single rule violation, we note that other sanctions are available to the lower tribunal under rule 9.410, Florida Rules of Appellate Procedure, including assessment of attorney’s fees against appellant’s counsel for wasted time and expenses attributable to his negligence.4

We remand to the circuit court for consideration of the merits of Krebs’ appeal from the county court and, if the trial court determines it to be appropriate, imposition of sanctions other than dismissal of the appeal for ignoring the extended due date of appellant’s initial brief.

WRIT GRANTED; REMANDED.

HARRIS and GRIFFIN, JJ„ concur. . The request was made six days after the initial brief was due.

. The certificate of service on this "Supplement" indicates it was served by mail on the same date the court ruled on the motion for reconsideration. The state asserts the detailed explanation was never made to the trial court.

. The extension order did not set out the due date; it merely granted appellant’s motion.

. We assume, because it does not appear in the record, that, before filing the motion to dismiss, the state attorney did not telephone the defendant's counsel as a professional courtesy in an effort to get the brief filed. We regret this increasing trend among counsel. Perhaps, if traditional courtesies were restored, the expense to the taxpayers of this state could be reduced.


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Citator

Cited By (16 total)

  • Gillespie v. The City OF Destin, 946 So. 2d 1195 (Fla. 1st DCA 2006)
    …astings, 640 So. 2d at 116 (“[W]e generally seek to avoid the harsh result of dismissal^] which can result in the sins of the attorney being visited upon the cfient[.]”) (quoting Moose v. State, 519 So. 2d 61, 62 (Fla. 2d DCA 1988)); Krebs v. State, 588 So. 2d 38, 39 (Fla. 5th DCA 1991) (noting that “other sanctions are available to the lower tribunal under rule 9.410, Florida Rules of Appellate Procedure, including assessment of attorney’s fees against appellant’s counsel for wasted time and expenses attrib…
  • Irvin v. Jimmie (Jamey) Williams, 736 So. 2d 705 (Fla. 1st DCA 1999)
    …monetary sanctions). Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal. See Leonard v. First Union Nat’l Bank of Florida, 685 So. 2d 98 (Fla. 3d DCA 1997); Krebs v. State, 588 So. 2d 38 (Fla. 5th DCA 1991). In the present case, the petitioners’ initial brief was late by only two and one-half weeks. The petitioners had a good reason to request additional time to retain substitute counsel and they had not previously requested an ex…
  • Hastings v. State, 640 So. 2d 115 (Fla. 2d DCA 1994)
    …ly, two of our sister [*117] courts have recognized that the wasting of court time because of the negligence of the attorney can be visited on that attorney by use of court sanctions such as fines, costs, reprimand, and contempt. See Krebs v. State, 588 So. 2d 38 (Fla. 5th DCA 1991), review denied, 599 So. 2d 658 (Fla.1992); Caudle v. State, 478 So. 2d 361 (Fla. 1st DCA 1985). The judge in this case, in responding to Hastings’ petition, stated that tardiness in prosecuting appeals is a continuing problem in…

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