HERBERT JOSEPH HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal recalled its prior decision and dismissed an appeal because the appeal was not filed within the required 90-day period, following a Florida Supreme Court ruling that clarified the timeliness requirement.
No, the appeal was not timely filed. The court granted the appellee's motion to dismiss.
“It appearing that since the filing of our decision dated December 10, 1963, Henry v. State, Fla.App., 158 So. 2d 807, denying appellee's motion to dismiss this cause, which motion was based on the ground that the appeal was not filed within ninety (90) days from the date of the judgment appealed, as required by Rule 6.2, Florida Appellate Rules, 31 F.S.A., in the case of State ex rel. Ervin v. Smith, (Fla.) 160 So. 2d 518, the Florida Supreme Court rendered an opinion, the effect of which is to reject the rule announced by our said decision in this cause, and it being made to appear that our decision is not in conformity with the rule laid down in State ex rel. Ervin v. Smith, supra, and that said motion to dismiss was well taken.”
Explains the reason for recalling the prior decision and granting the motion to dismiss, citing the impact of a Florida Supreme Court ruling.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed an appeal, and the appellee moved to dismiss it, arguing the appeal was untimely because it was filed more than 90 days after the …
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It appearing that since the filing of our decision dated December 10, 1963, Henry v. State, Fla.App., 158 So.2d 807, denying ap-pellee’s motion to dismiss this cause, which motion was based on the ground that the appeal was not filed within ninety (90) days from the date of the judgment appealed, as required by Rule 6.2, Florida Appellate Rules, 31 F.S.A., in the case of State ex rel. Ervin v. Smith, (Fla.) 160 So.2d 518, the Florida Supreme Court rendered an opinion, the effect of which is to reject the rule announced by our said decision in this cause, and it being made to appear that our decision is not in conformity with the rule laid down in State ex rel. Ervin v. Smith, supra, and that said motion to dismiss was well taken.
It is thereupon ordered that our said decision and judgment filed herein on December 10, 1963 be and it is hereby recalled, set aside and held for naught.
It is further ordered that the said motion of the appellee to dismiss this appeal for failure to file notice of appeal within ninety (90) days from the date of the entry of the judgment sought to be appealed be and the same is hereby granted and said appeal is hereby dismissed.
It is so ordered.
STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Richard W. Ervin v. Smith, 160 So. 2d 518 (Fla. 1964)
- Henry v. State, 158 So. 2d 807 (Fla. 1st DCA 1963)