PHILLIP COULOMBE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Phillip Coulombe sought certiorari review of a trial court's dismissal of his appeal from a county court traffic infraction conviction. The court granted the petition, finding that the trial court departed from essential legal requirements by dismissing the appeal despite Coulombe's properly filed indigency affidavit and implicit grant of indigent status.
The trial court's dismissal of Coulombe's appeal was improper and departed from essential requirements of law. Although the trial court did not enter a formal order of indigency, it implicitly granted indigent status by granting the stay without security due to indigency, entitling Coulombe to obtain a record without paying the requested fee.
[1] A trial court departs from the essential requirements of law when it dismisses an appeal for failure to file a record after implicitly recognizing the appellant's indigen…
[2] A party claiming a right to seek review without payment of costs must file a motion in the trial court with an affidavit showing inability to pay fees or give security.
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Join FLexlaw to unlock all legal intelligence“A petition for writ of certiorari can only be properly granted when the trial court's ruling departed from the essential requirements of the law.”
Establishes the standard for certiorari review that the court applied to find the trial court erred.
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Join FLexlaw to unlock all legal intelligenceCoulombe filed a timely notice of appeal of his county court traffic conviction and sought a stay of conviction, filing an affidavit of indigency. The…
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PALMER, J.
Phillip Coulombe petitions this court for certiorari review of the trial court’s order dismissing his appeal of a county court conviction for a traffic infraction. Concluding that the trial court departed from the essential requirements of law in dismissing Coulombe’s appeal, we grant the petition.
Coulombe filed a timely notice of appeal in the trial court seeking review of his county court conviction for committing a traffic infraction. Coulombe also filed a motion for stay of the conviction and an affidavit of indigency. The trial court granted the stay, noting therein Cou-lombe’s indigency. However, the affidavit of indigency was apparently lost by the clerk and, accordingly, Coulombe filed a second affidavit of indigency at the same time he filed his initial brief. When Cou-lombe received a notice of the fee for preparing the index of the record on appeal, he submitted a proposed order of indigency and allegedly sent a letter to the trial court reminding the court of the pending indigency affidavit.
Nonetheless, the trial court entered a notice of intent to dismiss Coulombe’s appeal for failure to file a brief. When Cou-lombe notified the court that a brief had been filed, the court sent an amended notice to dismiss for lack of a record. Cou-lombe alleges that he called and wrote the court, again advising that his affidavit of indigency was still pending; however, the trial court dismissed his appeal based on his failure to file a record.
A petition for writ of certiorari can only be properly granted when the trial court’s ruling departed from the essential requirements of the law. See State v. Pettis, 520 So. 2d 250 (Fla.1988). In this case, that standard was met.
In Willis v. State, 708 So. 2d 939 (Fla.1998), our supreme court explained that a party who claims a right to seek review without payment of costs shall file a motion in the trial court with an affidavit showing inability either to.pay the fees and costs or to give security therefore. Here, Coulombe filed the necessary petition and the court (at least implicitly) granted it. Although the trial court did not specifically enter an order of indigency, it recognized Coulombe’s indigency in its order granting his motion for stay where it explicitly held that the stay was without the giving of security “due to indigency”. Having been found indigent, Coulombe was entitled to obtain a record without providing the requested fee and therefore the trial court erred in dismissing his petition. However, he is not entitled to receive a free transcript. See Fla. R. Traf. Ct. 6.460(b). Alexander v. Bamash, 814 So. 2d 1211 (Fla. 4th DCA 2002).
Petition GRANTED, order QUASHED; and cause REMANDED.
SAWAYA and PLEUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Martinez, 870 So. 2d 18 (Fla. 2d DCA 2003)…520 So. 2d 250 (Fla.1988); State v. Busciglio, 426 So. 2d 1233 (Fla. 2d DCA 1983). “A petition for writ of certiorari can only be properly granted when the trial court’s ruling departed from the essential requirements of the law.” Coulombe v. State, 837 So. 2d 506, 507 (Fla. 5th DCA 2003) (citing Pettis, 520 So. 2d at 250). The State must also demonstrate that the trial court’s departure resulted in a miscarriage of justice. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla.2000) (quoting Stilson v. All…
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Christman v. N.M.C.R., Inc., 993 So. 2d 601 (Fla. 4th DCA 2008)…nswer briefs included specific record citations. We conclude that the appellate court departed from the essential requirements of law, having failed to comport with Florida Rule of Appellate Procedure 9.200(f)(2). See generally, Coulombe v. State, 837 So. 2d 506 (Fla. 5th DCA 2003); Weisberg v. Wegener, 487 So. 2d 1210 (Fla. 4th DCA 1986); Trans-Continental Fin. Corp. v. Baxter, 402 So. 2d 1289 (Fla. 5th DCA 1981); McGuire v. Nelson, 388 So. 2d 42 (Fla. 5th DCA 1980); Favors v. City of Tampa, 246 So. 2d 172…
Authorities Cited
- State v. Pettis, 520 So. 2d 250 (Fla. 1988)
- Alexander v. Bamash, 814 So. 2d 1211 (Fla. 4th DCA 2002)
- Stevie Willis v. State, 708 So. 2d 939 (Fla. 1998)