EDELMIRA CHACON, HENRY LONGVAL AND PRESSLEY MCFADDEN, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court denied a motion by an attorney to file a brief amicus curiae in a criminal appeal that had been granted rehearing. The court found the motion untimely and unnecessary because the State's Attorney General was already adequately representing the relevant legal arguments.
The motion to file an amicus curiae brief is denied because it does not comply with the court's rules: the motion was filed far beyond the 80-day deadline required by Rule 3.7k, and there was no consent of the parties. Furthermore, the State's Attorney General is already presenting the relevant arguments.
“an attorney who wishes to file a brief as amicus curiae may do so in two situations, i. e., if all parties agree or if the court grants permission after certain conditions are met”
Establishes the two-part test for amicus curiae briefs under Florida Appellate Rules
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Join FLexlaw to unlock all legal intelligenceA criminal appeal of Chacon, Longval, and McFadden had been granted rehearing by the court. An attorney named John A. Madigan, Jr. sought to file a br…
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This matter is here upon the motion of Mr. John A. Madigan, Jr., to file a brief amicus curiae in the above cause which *594has been set for reargument 10 February-1958 after rehearing granted by the court.
It seems that the petition must be denied because it does not comply with the rules of this court governing such petitions. It is provided in Rule 3.7k, Florida Appellate Rules, that an attorney who wishes to file a brief as amicus curiae may do so in two situations, i. e., if all parties agree or if the court grants permission after certain conditions are met. The first of these does not apply because such consent has not been forthcoming, but, on the contrary, the attorneys for appellants have protested against the action.
Under the second provision, the permission may be granted if the motion is filed within 80 days after filing of the notice of appeal. The notice of appeal in the present case was filed 12 April 1955 and the motion 28 January 1958, so two years, nine months and sixteen days passed between their filing.
We have also considered the motion in the light of Supreme Court Rule 36(10), 31 F.S.A., which was effective from 15 March 1955 until superseded by Rule 3.7k, supra. Under the earlier rule a brief ami-cus curiae could be filed by consent of the attorneys for all parties or upon petition timely filed giving the reason for thé request. Aside from the question of timeliness, the reason given for seeking permission to file a brief is, simply, the concern of Mr. Madigan’s clients about the apparent conflict between the opinion, which is to be reheard and the opinion in Perez v. State, Fla., 81 So.2d 201.
We stress here that a brief for the State was filed by the Attorney General, the case was originally argued by an assistant attorney general, the petition for rehearing was filed by the Attorney General, and it is presumed that the Attorney General, or a member of his staff, will'reargue the matter on the day set inasmuch as the reargument was granted at the request of the Attorney General.
The Attorney General’s petition for rehearing presented, point-blank, the apparent conflict between the decision in this case and in Perez v. State, supra, so it is evident that the question raised by Mr. Madigan will be amply presented and cannot escape the attention of the court.
Denied.
TERRELL, C. J., and THOMAS, HOB-SON, ROBERTS and DREW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Edelmira Chacon v. State, 102 So. 2d 578 (Fla. 1957)
- Hobson Collier and Louise Collier v. City OF Homestead, 81 So. 2d 201 (Fla. 1955)