STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
CAROL FEDOR, APPELLEE/CROSS-APPELLANT
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The court dismissed a criminal defendant's cross-appeal after the state voluntarily dismissed its main appeal, holding that a defendant has no independent right to appeal pretrial orders and therefore cannot maintain a cross-appeal once the state's appeal is dismissed.
The court held it has no jurisdiction to hear the cross-appeal because a defendant has no independent right to appeal pretrial orders, and therefore a cross-appeal cannot survive dismissal of the main appeal.
[1] A cross-appeal can continue after the main appeal has been dismissed if the cross-appeal could have been appealed on its own merits, independent of the main appeal.
[2] A defendant in a criminal case has no right to an interlocutory appeal of a pre-trial order.
Previewing 2 of 4 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“the defendant may file a cross-appeal on any related issue which was resolved in the same order from which the state is appealing.”
Establishes the general rule that a defendant may cross-appeal from the same order that the state appeals.
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Join FLexlaw to unlock all legal intelligenceOn April 24, 1997, the state appealed a trial court's pretrial order granting the defendant Carol Fedor's motion to exclude photographic line-up ident…
The full statement of facts, procedural history, and disposition for this case are member content.
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THOMPSON, Judge.
On 24 April 1997, the state filed a notice of appeal of the part of the trial court’s non-final order which granted Carole Fedor’s motion to exclude from trial evidence of the alleged victim’s identification of Fedor in a photographic line-up. On 20 May 1997, Fe-dor filed a notice of cross-appeal directed to the part of the order which denied her motion to preclude any in-court identification by the victim. The state voluntarily dismissed its appeal on 24 July 1997. The issue before this court is whether we have jurisdiction to hear the cross-appeal after the state voluntarily dismissed its main appeal. We hold we have no jurisdiction and dismiss the appeal.
The state had the right to appeal the pretrial order which granted in part and denied in part Fedor’s motion. See Rule 9.140(e)(1)(B), Fla. R.App. P.; §§ 924.07, 071, Fla. Stat. (1995). Further, Fedor had the right to cross-appeal the part of the same order which was unfavorable to her. Lopez v. State, 638 So. 2d 931 (Fla.1994). In Lopez, the Florida Supreme Court held that a defendant in a criminal case has no right to an interlocutory appeal, but that “the defendant may file a cross-appeal on any related issue which was resolved in the same order from which the state is appealing.” Lopez, 638 So. 2d at 932.
A cross-appeal can continue after the main appeal has been dismissed if the cross-appeal could have been appealed on its own merits, independent of the of the main appeal. State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990); Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985); see also Fla. R.App. P. 9.350(b). In Smith and Zimmerman, the state was allowed to continue an appeal after the defendant dismissed the main appeal. As mentioned previously, as a defendant, Fedor had no independent right to appeal a pre-trial order. See Lopez; R.J.B. v. State, 408 So. 2d 1048 (Fla.1982); Fla.R.App. P. 9.140(b). Therefore, Fedor’s cross-appeal cannot survive the dismissal of the main appeal. See Ramos v. State, 505 So. 2d 418 (Fla.1987) (holding that where the cross-appellant could not have initially appealed, the cross-appeal depends entirely on the existence of an appeal).
DISMISSED FOR LACK OF JURISDICTION.
GRIFFIN, C.J., and HARRIS, J., concur.
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State v. Vitale, 118 So. 3d 853 (Fla. 5th DCA 2013)…nts made during a booking and transport process, State v. McAdams, 559 So. 2d 601 (Fla. 5th DCA 1990), approved, Lopez, or a two-day period, Lopez; or to exclude an out-of-court identification and preclude an in-court identification, State v. Fedor, 714 So. 2d 526, 526 (Fla. 5th DCA 1998). Here, the defendant’s issue relating to the denial of his motion to dismiss count 3 is not legally intertwined with, or closely factually related to, the State’s issue relating to the dismissal of counts 1 and 2. The defen…
Authorities Cited
- In the Interest of R. J. B. v. State, 408 So. 2d 1048 (Fla. 1982)
- Lopez v. State, 638 So. 2d 931 (Fla. 1994)
- Ramos v. State, 505 So. 2d 418 (Fla. 1987)
- State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990)
- Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985)