DALE PATRICK KUZNIK, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a motion for an extension of time tolls the deadline for filing a brief, and dismissal was an unduly harsh sanction for the delay.
Petitioner Kuznik appealed a county court order denying his petition for a writ of error coram nobis. After delays in obtaining the appellate record a…
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PER CURIAM.
Petitioner Dale Kuznik seeks certiorari review of a decision of the circuit court sitting in its appellate capacity.
Kuznik had appealed a county court order denying his petition for writ of error coram nobis.1 Apparently it took an inordinate time to prepare an appellate record. Kuznik sought two extensions for filing his brief; the first was granted but no ruling was entered on the second. Kuznik finally obtained his record and filed a brief. Nevertheless the circuit court, upon motion by the state, dismissed the appeal.
Kuznik argues, and we agree, that the second motion for extension tolled the time to file his brief. Ike’s Carter Pool & Maintenance v. Roberts, 432 So. 2d 137 (Fla. 4th DCA 1983). Perhaps Kuznik might have pursued more aggressively a ruling on his motion, but dismissal was an unduly harsh sanction.2 The petition for writ of certiorari is granted and this case is remanded to circuit court with instructions to entertain Kuznik’s appeal on its merits.
Petition granted.
RYDER, A.C.J., and PARKER and PATTERSON, JJ., concur. . Unlike the other "extraordinary writs,” coram nobis may be filed in county court if that is where the judgment arose originally. State v. Stettin, 364 So. 2d 95 (Fla. 3d DCA 1978). We express no opinion as to the merits of Kuznik’s petition or his subsequent appeal.
. The record does not support any suggestion that the second motion was an abuse of the rules. Cf. Blanton v. State, 561 So. 2d 587 (Fla. 2d DCA 1989) (frivolous motion for extension will not toll filing time).
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Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395 (Fla. 3d DCA 2009)…1962). Florida Rule of Appellate Procedure 9.300(b) provides for tolling proceedings pending disposition of certain motions. A motion for extension of time to file a brief tolls the time for filing until the motion is ruled on. See Kuznik v. State, 604 So. 2d 37 (Fla. 2d DCA 1992). A ten-day warning must be given to litigants prior to imposing a sanction. See Fla. R.App. P. 9.410. Concerning sanctions, Florida courts generally require that a sanction be commensurate with the violation, and deem a dismissal…
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Conyers v. State, 623 So. 2d 871 (Fla. 1st DCA 1993)…as too harsh a sanction and that the order therefore constitutes a departure from the essential requirements of law. See Krebs v. State, 588 So. 2d 38 (Fla. 5th 1991), rev. denied, State v. Krebs, 599 So. 2d 658 (Fla.1992). See also Kuznik v. State, 604 So. 2d 37 (Fla. 2d DCA 1992); Hamilton v. State, 573 So. 2d 109 (Fla. 4th DCA 1991). The petition for writ of certiorari is GRANTED and the order dismissing the appeal is QUASHED. BOOTH and ALLEN, JJ., concur.…
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Windhaven Ins. Co. v. Biscayne Rehab Ctr., Inc., 243 So. 3d 1034 (Fla. 3d DCA 2018)…disposition of certain motions. A motion for extension of time to file a brief tolls the time for filing until the motion is ruled on." Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395, 397 (Fla. 3d DCA 2009) (citing Kuznik v. State, 604 So. 2d 37 (Fla. 2d DCA 1992) ). Here, Windhaven filed its fifth motion for extension of time on October 4, 2017, just one day prior to the October 5, 2017 deadline imposed by the order granting the fourth motion for an extension. Respondents argued that Wind…
Authorities Cited
- Blanton v. State, 561 So. 2d 587 (Fla. 2d DCA 1989)
- State v. Honorable Herbert Stettin, 364 So. 2d 95 (Fla. 3d DCA 1978)
- Ike's Carter Pool & Maint. Co. v. Roberts, 432 So. 2d 137 (Fla. 4th DCA 1983)