ROBERT C. CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This case concerns the timeliness of an appeal. The appellate court dismissed the appeal because the notice of appeal was not filed within the prescribed 90-day period, as the required filing fee was not paid or the appellant was not declared insolvent.
No, the appellate court does not have jurisdiction because the notice of appeal was not properly filed within the statutory time limit, as required by the Florida Appellate Rules.
“An appeal may be taken only by filing with the clerk of the lower court a notice in writing stating that the appellant appeals from a judgment, order, ruling or sentence, as the case may be, and if the appeal be taken by a defendant, by depositing a filing fee in the amount prescribed by law, which may be by a check or money order payable to the clerk of the appellate court, with the clerk of the lower court unless the appellant is adjudged insolvent prior to the time of such filing”
This quote from Criminal Rule 6.4 establishes the requirements for taking an appeal, including filing the notice and paying the fee or being declared insolvent.
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Join FLexlaw to unlock all legal intelligenceThe appellant's Notice of Appeal was received by the Clerk of the Circuit Court within 102 days after the judgment and sentence. However, it was not o…
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In this case Notice of Appeal was not filed or recorded until 102 days after the date of judgment and sentence appealed from. Obviously, therefore, this Court has no jurisdiction. The Notice of Appeal was “received” by the Clerk of the Circuit Court within 90 days from the date of judgment and sentence, but was not filed by the Clerk, presumably because neither a filing fee had been deposited with said Clerk to defray the costs payable to the appellate court Clerk nor had defendant below been adjudicated insolvent so as to require the State to pay such costs. One of the latter is required by Criminal Rule 6.4, Florida Appellate Rules, 31 F.S.A., which provides:
“An appeal may be taken only by filing with the clerk of the lower court a notice in writing stating that the appellant appeals from a judgment, order, ruling or sentence, as the case may be, and if the appeal be taken by a defendant, by depositing a filing fee in the amount prescribed by law, which may be by a check or money order payable to the clerk of the appellate court, with the clerk of the lower court unless the appellant is adjudged insolvent prior to the time of such filing * * (Emphasis supplied).
The burden was upon defendant below to bring himself within the provisions of said Criminal Rule 6.4, which he failed to do.
The appeal in this case is therefore—
Dismissed.
LILES, Acting C. J., and PIERCE and KANNER, (RET.), JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 324 So. 2d 74 (Fla. 1975)…644 (Fla.App. 1st 1969), wherein it held likewise. At that period in time the Mur-phree and Thomas decisions were in direct conflict with the Second District Court’s decisions in Woolley v. State, 193 So. 2d 706 (Fla.App.2d 1966) and Clark v. State, 191 So. 2d 870 (Fla.App.2d 1966). Our decision in City of Gainesville v. Thomas, supra, was a compromise between these two diametrically opposing views. Regrettably, the passage of time has shown us that this compromise (vesting the clerks with discretionary power…
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Woolley v. State, 193 So. 2d 706 (Fla. 2d DCA 1966)…fendant was not insolvent at that time. Since the notices were not filed until April 26, 1966, they are untimely as they were filed more than 90 days from the entry of the judgments and sentences sought to be appealed. Cf. Clark v. State, Fla.App., 191 So. 2d 870 filed November 4, 1966. In view of the foregoing discussion, cases numbered 7038, 7183, 7184, 7185, 7186 and 7187 are hereby dismissed sua sponte. ALLEN, C. J., and SHANNON, J., concur.…
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Raymond Mills & the Emp'rs' Liab. Assurance Corp. v. Avon Park Motor Co. & Am. Fire & Cas. Co., 223 So. 2d 802 (Fla. 2d DCA 1969)…ate court. Since this fee was paid upon the timely presentation to the clerk of the trial court of the notice of appeal, we need not determine whether this court erroneously attached jurisdictional status to this fee in Clark v. State, Fla.App.1966, 191 So. 2d 870. The Clerk of the Circuit Court relied upon an opinion by then Attorney General, now Chief Justice, Ervin which we would probably think sound if the question were involved here. Op.Atty.Gen. 57-239, August 12, 1957. That opinion is to the effect th…
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