JOSEPH K. HAMMERL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2000-09-08
No. 2D00-2669
PARKER, A.C.J., and ALTENBERND and CASANUEVA, JJ„ Concur.
779 So. 2d 410 Florida District Court of Appeal, Second District (2000) Positive Treatment
Cited by 10 cases

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Synopsis

Joseph Hammerl sought to voluntarily dismiss his postconviction appeal while reserving the right to refile it later. The Florida Second District Court of Appeal rejected this conditional dismissal, holding that appellate courts lack authority to condition dismissals of final appeals or to preserve future appellate rights beyond what the rules already provide.


Holding

A district court has no authority to alter or condition the legal effect of an order dismissing an appeal. If a final appeal is dismissed after the time for appeal has expired, the court's dismissal order cannot reserve any right for a subsequent appeal of the same order. Appellate rules do not authorize dismissals without prejudice of final appeals.


Headnotes

[1] An appellate court cannot reserve to an appellant the right to file a subsequent appeal of the same order if the time for appeal has expired.

[2] A voluntary dismissal of a nonfinal appeal prior to a disposition on the merits does not restrict the appellant's ability to raise the same issues in a later final appeal…

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Key Quotes

“a district court has no authority to alter or condition the legal effect of an order dismissing any appeal”

Establishes the core holding that appellate courts cannot impose conditions on dismissal orders

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Facts & Procedural History

Joseph K. Hammerl filed a motion to withdraw his summary postconviction appeal, requesting dismissal "without prejudice" while expressly reserving the…

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Opinion of the Court
PER CURIAM.

ORDER DENYING REQUEST FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE

PER CURIAM.

Joseph K. Hammerl has filed a document entitled “Motion to Withdraw Appeal” in which he asks this court to dismiss his pending summary postconviction appeal “without prejudice, expressly reserving] the right to file a timely appeal at some future date.” We deny his motion 1 without prejudice to Mr. Hammerl to file an unconditional voluntary dismissal of this appeal. We publish this order to explain that a district court has no authority to alter or condition the legal effect of an order dismissing any appeal. If a final appeal is dismissed after the time for appeal has expired, this court’s order of dismissal cannot reserve to the appellant any right for a subsequent appeal of the same order. On the other hand, if a nonfinal appeal is voluntarily dismissed prior to its disposition on the merits, this court’s order of dismissal does not restrict the appellant’s ability to raise the same issues in a later final appeal. Our orders of dismissal simply do not affect these jurisdictional rights.

Dismissals of civil actions in trial courts, whether voluntary or involuntary, are routinely entered without prejudice to the party to refile the action. Florida Rule of Civil Procedure 1.420 acknowledges that voluntary dismissals of civil actions are without prejudice unless denominated otherwise in the notice or stipulation, or unless the voluntary dismissal in question follows a refiling after a prior voluntary dismissal. Appellate jurisprudence, on the other hand, has no provision for dismissals without prejudice of final appeals or original proceedings. District courts in Florida have jurisdiction over appeals and certiorari petitions only if -the court’s jurisdiction is timely invoked. In postconviction proceedings, criminal defendants must institute an appeal within thirty days of the rendering of the order appealed. See Fla. R.Crim. P. 8.850(g); Fla. RApp. P. 9.110(b), 9.140(a).

Mr. Hammeri’s notice of appeal was timely filed, but if we dismissed this appeal and he later attempted to invoke our jurisdiction to review the order, his second notice would be untimely. We would be required to dismiss that appeal. His attempt to preserve a right to a second appeal is not authorized by the Florida Constitution, the Florida Rules of Appellate Procedure, or Florida Statutes. This court cannot provide him an avenue of redress that it is not empowered to grant.

This court on occasion encounters conditional voluntary dismissals in nonfinal or interlocutory appeals that attempt to preserve appellate review of a nonfinal order in a subsequent final appeal. Florida Rule of Appellate Procedure 9.130(g) provides for review of all nonfinal orders on appeal from the final order in a trial court proceeding. The voluntary dismissal of an interlocutory appeal before a decision is rendered on the merits of the claim does not foreclose the appellate court’s jurisdiction to review a nonfinal order at a later time so long as a notice of appeal is filed within thirty days of the rendition of the final order or judgment. In these instances, a “voluntary dismissal without prejudice” simply asks an appellate court to preserve a right that the appellate rules already provide.

In the future, when a voluntary dismissal without prejudice is filed in this court in an attempt to preserve a right to which a party is not entitled-and which this court is without the authority to grant-or in an attempt to preserve a right that is already conferred upon the party by court rule, statute or other authority, this court intends to deny relief without prejudice to the party’s filing of a subsequent, unconditional voluntary dismissal.

Mr. Hammerl’s “motion to withdraw appeal” is accordingly denied without prejudice to him to file an unconditional voluntary dismissal.

PARKER, A.C.J., and ALTENBERND and CASANUEVA, JJ„ Concur. . Voluntary dismissals typically arrive at this court in the form of notices and not as motions, as Mr. Hammerl elected to file his request. The-analysis of dismissing an appeal without prejudice is the same whether the litigant files a motion or notice. A district court has the discretion when a timely notice of voluntary dismissal is filed to reject the appellant's request to dismiss the appeal and to retain jurisdiction and proceed with the appeal. See State v. Schopp, 653 So. 2d 1016 (Fla. 1995).


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Cited By

  • Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011)
    …luntary dismissal); Washington v. State, 982 So. 2d 1207, 1208 (Fla. 5th DCA 2008) (“A reviewing court has discretion to retain jurisdiction and proceed with the appeal even where a notice of voluntary dismissal is timely filed.”); Hammerl v. State, 779 So. 2d 410, 411 n. 1 (Fla. 2d DCA 2000) (“A district court has the discretion when a timely notice of voluntary dismissal is filed to reject the appellant’s request to dismiss the appeal and to retain jurisdiction and proceed with the appeal.”). This appeal a…
  • State v. Cassells, 835 So. 2d 397 (Fla. 2d DCA 2003)
    …e voluntarily dismissed prior to its disposition on the merits without harm to the defendant. The defendant is free to pursue the issue at a later time because unconditional dismissals of nonfinal appeals are without prejudice. See Hammerl v. State, 779 So. 2d 410, 411 (Fla. 2d DCA 2000). If anything, an Anders brief in such a nonfinal appeal could result in a decision affirming the trial court that might establish the law of the case. At least in the rare occasion where refinements in the law occurred after…
  • Walker v. Walker, 4 So. 3d 35 (Fla. 3d DCA 2009)
    …the lower court changes matters of substance, or resolves a genuine ambiguity in a judgment previously rendered, should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew). See also Hammerl v. State, 779 So. 2d 410 (Fla. 2d DCA 2000); Thermoplastic & Signs, Inc. v. Metro. Dade County, 746 So. 2d 1140 (Fla. 3d DCA 1999). Appeal dismissed. . A question arose whether or not the Sixteenth Judicial Circuit Clerk's practice of not docketing faxed notices, but only…

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