CODY JOHNSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cody Johnston appealed the denial of his motion to terminate sex-offender probation early. The Florida First District Court of Appeal dismissed the appeal on two independent grounds: the order was non-appealable as a matter of law, and the notice of appeal was untimely.
The appeal is dismissed on two independent grounds: (1) orders denying early probation termination are non-appealable as they are entirely discretionary matters of grace under Florida law, and (2) the notice of appeal was untimely, filed 35 days after the order when the jurisdictional deadline is 30 days from rendition.
[1] An order denying a defendant's motion to terminate probation early is not appealable because trial courts have unbridled discretion to grant or deny such motions.
[2] A notice of appeal must be filed within 30 days of the rendition of the order to be reviewed.
Previewing 2 of 3 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“Since the authority [to terminate probation early] conferred on the court by section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable”
Establishes that orders denying early probation termination are non-appealable as discretionary matters of grace.
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Join FLexlaw to unlock all legal intelligenceJohnston sought early termination of his sex-offender probation by filing an amended motion. The trial court denied this motion. Johnston filed a noti…
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Cody Stuart Johnston appeals the order denying his amended motion to terminate his sex-offender probation. We dismiss the appeal for two independent reasons.
First, the order is not appealable because trial courts have unbridled discretion to decide whether or not to terminate a defendant’s probation early. See Ziegler v. State, 380 So.2d 564 (Fla. 3d DCA 1980) (“Since the authority [to terminate probation early] conferred on the court by section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable,”). Second, the appeal was untimely because the notice of appeal was filed 35 days after the date the order was rendered, which is five days after the jurisdictional deadline in Florida Rule of Appellate Procedure 9.110(b). See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003) (explaining that the 30-day appeal deadline is jurisdictional and that an untimely appeal must be dismissed).
Johnston’s argument that this appeal was timely because Florida Rule of Judicial Administration 2.514(b) adds five days to the appeal deadline since the challenged order was served by mail is based on an all-too-common misunderstanding of the rule’s application. The rule provides that five days are added to periods of time that commence upon service if service was made by mail. Fla. R. Jud. Admin. 2.514(b) (‘When a party may or must act within a specified time after service and service is made by mail ..., five days are added after the period that would otherwise expire under subdivision (a).”). However, the rule does not apply to the 30-day period within which the notice of appeal *977must be filed because that period commences upon rendition of the challenged order rather than service of the order. See Fla. R. App. P. 9.110(b) (stating that the appellate court’s jurisdiction to review final orders issued by a trial court “shall be invoked by filing a notice ... with the clerk of the lower [court] within 30 days of rendition of the order to be reviewed”); cf. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999); Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992).
Accordingly, this appeal is DISMISSED.
B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., concur.
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C. M. v. Dep't of Child. & Families, 208 So. 3d 1291 (Fla. 1st DCA 2017)…es interpreting it, almost all of which involved the untimely filing of a notice of appeal or petition for certiorari, both of which have 30-day jurisdictional deadlines that run from the rendition of the order to be reviewed. See Johnston v. State, 202 So. 3d 976, 977 (Fla. 1st DCA 2016) (notice of appeal); Medley Plaza, Inc. v. Rama Fund, LLC, 196 So. 3d 512 (Fla. 3d DCA 2016) (notice of appeal); Donaldson v. State, 136 So. 3d 1281, 1282 (Fla. 2d DCA 2014) (notice of appeal); Matheny v. Indian River Fire Re…
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Fla. Agric. & Mech. Univ. v. United Faculty of Florida (Fla. 1st DCA 2019)…, UFF filed this motion to dismiss the appeal. II. Florida Rule of Appellate Procedure 9.110(b) requires a notice of appeal to be filed within 30 days of rendition of a final order. This deadline to appeal is jurisdictional, see Johnston v. State, 202 So. 3d 976 (Fla. 1st DCA 2016), and failure to comply may not be cured by obtaining a subsequent order. After rendition, an “amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought.” St.…
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Delsa Velazquez v. State (Fla. 4th DCA 2019)…that authority is “a matter of grace,” and a court’s refusal to exercise it is not appealable. Burgos v. State, 765 So. 2d 967, 969 (Fla. 4th DCA 2000) (quoting Ziegler v. State, 380 So. 2d 564, 564 (Fla. 3d DCA 1980)); see also Johnston v. State, 202 So. 3d 976, 976 (Fla. 1st DCA 2016). We note that an appeal of an order denying a request to release a probationer from supervision has been treated as a petition for writ of certiorari. Enea v. State, 171 So. 3d 219, 221 (Fla. 5th DCA 2015); cf. Wesner v. S…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miami-Dade Cnty. v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003)
- Walker v. State, 742 So. 2d 533 (Fla. 3d DCA 1999)
- Dominguez v. Barakat, 609 So. 2d 664 (Fla. 3d DCA 1992)
- Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980)