ELI S. JENKINS, PETITIONER,
v.
HON. WOODY A. LYLES, AS CHIEF JUDGE; HON. WILLIAM C. PIERCE; HON. JOSEPH MCNULTY; HON. T. FRANK HOBSON, JR.; AND HON. ROBERT MANN, AS THE JUDGES OF AND CONSTITUTING THE DISTRICT COURT OF APPEAL, SECOND DISTRICT, STATE OF FLORIDA, RESPONDENTS
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The Florida Supreme Court held that while the State's failure to serve notice of appeal on the defendant is not jurisdictional, the State's attempt to appeal from an oral order rather than the formal written dismissal order was wholly ineffective and divested the appellate court of jurisdiction. The court prohibited the District Court of Appeal from proceeding with the case.
The failure to serve notice of appeal is not jurisdictional and does not automatically divest the court of jurisdiction; however, the State's attempt to appeal from an oral order rather than the formal written dismissal order is wholly ineffective to confer jurisdiction on the District Court of Appeal. The filing of the notice of appeal from an appealable decision vests jurisdiction, but only a proper written order is appealable.
“The filing of the Notice of Appeal from an appealable decision vests jurisdiction in the reviewing court. Failure to serve a copy on the defendant may, under appropriate circumstances, justify a dismissal of the appeal but it does not require it.”
Establishes that failure to serve notice of appeal is procedural, not jurisdictional, and requires showing of prejudice for dismissal
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Join FLexlaw to unlock all legal intelligenceThe trial court orally granted a motion to quash an information against Jenkins on August 22, 1968. The State filed a notice of appeal from this oral …
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The trial court orally granted a motion to quash an information filed against Petitioner. The State filed its Notice of Appeal1 from said oral order but a copy thereof was not served on Petitioner as required by Rule 6.6(a), Florida Appellate Rules, 32 F.S.A., and Section 924.13, Florida Statutes 1967, F.S.A.2 A few days thereafter the trial judge entered a written order dismissing the information, from which no appeal has been taken.
Petitioner moved, in the District Court of Appeal where said cause was pending, to dismiss the appeal on the following grounds:
“1. That it had failed to comply with the mandatory provisions of Rule 6.6(a), F.A.R., and § 924.13, F.S.A.
“2. That the Notice of Appeal purportedly was from an oral Order of the Trial Court granting the Motion to Dismiss on August 22, 1968, when the record of the Trial Judge showed that a formal written Order was entered of record on September 12, 1968, which said Order dismissed the Information.”
The motion was denied without opinion.
Petitioner contends here that the District Court is without jurisdiction.
Petitioner argues that the requirement that he be served with a copy of the Notice of Appeal is jurisdictional. We do not agree. The filing of the Notice of Appeal from an appealable decision vests jurisdiction in the reviewing court. Failure to serve a copy on the defendant may, *742under appropriate circumstances, justify a dismissal of the appeal but it does not require it. As in other violations of the rules governing procedural matters in appellate review, appropriate sanctions may be imposed, hut a dismissal is not proper in the absence of a showing of substantial prejudice to the moving party. The record here does not demonstrate that Petitioner has been prejudiced by the failure to serve a copy on him.3
The same question was before us in the case of State of Florida v. White, No. 35,-448.4 The original files show that there, as here, the Notice of Appeal was not served on the appellee, and after the appeal was taken he moved to dismiss the same because such failure to comply with the rule and statute divested the Court of jurisdiction to review the action of the trial court. On July 12, 1966, an order [unreported] was entered denying the Motion to Dismiss.
A more serious question is presented in the question concerning the state’s attempt to appeal from an oral order of the court. The rules provide that all orders “not entered in open court * * * shall be in writing.”5 The only appealable order in this case is the one entered in writing on September 12th, 1968. The attempt to review this order by a Notice of Appeal from an oral order pronounced several days prior thereto is wholly ineffective to confer jurisdiction on the District Court.6
Petitioner — as an additional point— argues that the order — written or oral — is not a reviewable judgment because it is interlocutory, and cites State v. Lee, 170 So.2d 464 (2d Dist.Ct.App.Fla.1965), in support of that contention. Since the Lee decision, the rules have been amended to provide that, for the purposes of appeal by the State under the provisions of Section 924.07(1), Florida Statutes 1967, F.S.A., an “order quashing” shall be taken and held to mean “order dismissing.” 7 Lee is no longer applicable.
Respondents are prohibited from proceeding further in the pending appeal.
It is so ordered.
CARLTON and ADKINS, JJ., concur.
concurs for reasons herein and in our decision in State v. Kahler, Fla. 224 So.2d 272, filed May 28, 1969.
ERVIN, C. J., and ROBERTS and BOYD, JJ., dissent.
THORNAL, J.,
concurs for reasons herein and in our decision in State v. Kahler, Fla. 224 So. 2d 272, filed May 28, 1969.
ERVIN, C. J., and ROBERTS and BOYD, JJ., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Williams v. State, 324 So. 2d 74 (Fla. 1975)…t deemed rendered (even though filed for recording) until such post-trial motions are disposed of. Any question as to whether this synonym was to apply equally to both criminal as well as civil appeals was settled by this Court in Jenkins v. Lyles, 223 So. 2d 740 (Fla.1969). Therein we expressly overruled the decision of the Second District Court in Gossett v. State, 188 So. 2d 836 (Fla.App. 2d 1966), wherein that court declined to apply the harmonization of these two terms in Florida Appellate Rule 1.3 to c…
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State v. Chapman Levi Creighton, 469 So. 2d 735 (Fla. 1985)…ision (a civil case) was in effect, the courts of Florida continued to operate under the assumption that the state’s right of appeal in criminal cases was governed by statute. See, e.g., Carroll v. State, 251 So. 2d 866 (Fla.1971); Jenkins v. Lyles, 223 So. 2d 740 (Fla.1969); State v. Diamond, 188 So. 2d 788, 789 (Fla.1966); State v. Harris, 136 So. 2d 633 (Fla.1962); State v. Schroeder, 112 So. 2d 257 (Fla.1959); State v. Shouse, 177 So. 2d 724 (Fla. 2d DCA 1965); Balikes v. Speleos, 173 So. 2d 735 (Fla. 3d…
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State of Fla. ex rel. Earl Faircloth v. Hon. Spencer C. Cross, 238 So. 2d 81 (Fla. 1970)…other timely post-trial motion or petition permitted by the Rules tolls the time for the taking of an appeal and the judgment is not deemed rendered until disposition is made of such motion or petition. Rule 1.3, Fla.App.Rules. In Jenkins v. Lyles, 223 So. 2d 740 (Fla.1969), this Court held that an appeal from an oral order was ineffective to confer jurisdiction on the reviewing court, saying: “A more serious question is presented in the question concerning the state’s attempt to appeal from an oral order o…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gossett v. State, 188 So. 2d 836 (Fla. 2d DCA 1966)
- State v. Wylie White, 194 So. 2d 601 (Fla. 1967)
- State v. Shedaker, 190 So. 2d 429 (Fla. 3d DCA 1966)
- Striker Boats, Inc. v. Nuby, 224 So. 2d 272 (Fla. 1969)
- State v. Kahler, 224 So. 2d 272 (Fla. 1969)
- State v. Maschek, 147 So. 2d 574 (Fla. 3d DCA 1962)
- The Dep't OF Ins. OF the State OF Ind. v. Hwy. Ins. Co., 170 So. 2d 464 (Fla. 3d DCA 1965)