RALPH L. HOWELL, APPELLANT,
v.
ANITA JACKSON, APPELLEE

Fla. 4th DCA | 2002-03-20
No. 4D02-400
GROSS and HAZOURI, JJ„ concur.
810 So. 2d 1081 Florida District Court of Appeal, Fourth District (2002) Positive Treatment
Cited by 2 cases

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Holding

A prematurely filed notice of appeal does not automatically constitute an abandonment of the appealing party's post-trial motions when other parties have pending motions that preclude rendition of the judgment.

Headnotes

[1] A notice of appeal filed while post-trial motions are pending does not automatically abandon the appealing party's own post-trial motions when other parties have pending…

[2] A judgment is not deemed rendered until all pending post-trial motions have been disposed of by written order.

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Facts & Procedural History

Appellant filed a notice of appeal from a final judgment while post-trial motions were pending. Appellee objected, citing rules that deem pending moti…

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Topics
Florida Rule Of Appellate Procedure 9.110(B) Premature Notice Of Appeal Rendition Of Judgment

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Opinion of the Court
KLEIN, J.

ORDER GRANTING RELINQUISHMENT

KLEIN, J.

Appellant defendant filed a notice of appeal from a final judgment based on a jury-verdict even though his post-trial motions were pending. He has filed a motion requesting that we relinquish jurisdiction for the trial court to rule on his motions.

Appellee objects, citing Florida Rule of Appellate Procedure 9.020(h)(3), which provides that a party who files a notice of appeal is “deemed” to have abandoned his own pending post-trial motions. In re Forfeiture of $101, 591, 589 So. 2d 283 (Fla.1991). Appellee, however, also had pending post-trial motions. Under rule 9.020(h)(1) the final judgment is hot deemed rendered until her post-trial motions have been disposed of by written order. These two provisions of our rule defining rendition mean that a party who files a notice of appeal is deemed to have abandoned his own pending post-trial motions, but the notice of appeal has no effect on pending post-trial motions filed by another party directed at the party filing the notice of appeal.

This notice of appeal is premature because a notice of appeal must be filed within thirty days of “rendition,” rule 9.110(b), and this judgment will not have been rendered until the trial court ruled on appellee’s pending post-trial motions. Rule 9.020(h)(1).

We conclude that where other parties have pending post-trial motions which preclude rendition of the judgment, a prematurely filed notice of appeal does not automatically constitute an abandonment of the appealing party’s post-trial motions. We note that rule 9.020(h)(3) states that where the notice of appeal is filed pending post-trial motions “shall be deemed abandoned,” rather than unconditional language to the effect that the motions are abandoned. See also In re Forfeiture of $104,591, 589 So. 2d 283 (Fla.1991)(Florida Supreme Court allowed trial court to rule on post-trial motions which had been deemed abandoned by the filing of a notice of appeal).

We therefore relinquish jurisdiction in order for the trial court to rule on all post-trial motions.

GROSS and HAZOURI, JJ„ concur.

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  • Ingrassia v. Thompson, 843 So. 2d 986 (Fla. 4th DCA 2003)
    …F. 2d 598, 599 (5th Cir.1966)(citing Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886)). The finding of ineffective assistance of appellate counsel does not necessarily dictate the ordering of a new trial. See, e.g., Kleckley v. State, 810 So. 2d 1081 (Fla. 4th DCA 2002); Wyatt v. State, 697 So. 2d 1289 (Fla. 5th DCA 1997). We therefore grant a belated appeal restricted to this single issue where both the defense and the State may fully brief the issue. STEVENSON, J., concurs. STONE, J., dissen…
  • Wilson v. State, 835 So. 2d 1215 (Fla. 4th DCA 2003)
    …e, therefore, find the petition legally sufficient and grant relief. The conviction and sentence are reversed as to the charge of possession of cannabis with intent to deliver and, as to that charge, we remand for a new trial. See Kleckley v. State, 810 So. 2d 1081 (Fla. 4th DCA 2002); Moment v. State, 785 So. 2d 717 (Fla. 4th DCA 2001). STEVENSON and SHAHOOD, JJ., concur.…

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