CHARLES LOWELL MERRILL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Charles Lowell Merrill appealed his conviction for operating a gambling room (felony) and five counts of bookmaking (misdemeanors). The Florida District Court of Appeal rejected the State's motion to dismiss the appeal based on mootness from payment of the fine, but granted the State's alternative motion to transfer the misdemeanor convictions to circuit court for appellate review.
The court held that payment of the fine does not render the felony appeal moot and denied the State's motion to dismiss. The court granted the State's alternative motion to transfer the misdemeanor convictions to the Circuit Court of Dade County, which has appellate jurisdiction over misdemeanor convictions.
“We do not find the St. Pierre case to be authority for a dismissal of the instant appeal. Therefore, we cannot agree with the state's contention and deny the motion to dismiss this appeal.”
The court rejected mootness as grounds for dismissal based on payment of fine, establishing that payment does not render an appeal moot.
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Join FLexlaw to unlock all legal intelligenceMerrill was charged by information with one count of operating a gambling room and five counts of bookmaking. He was found guilty of the felony and gu…
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The defendant, Charles Lowell Merrill, . was charged by information with one count of operating a gambling room and five counts of bookmaking. He was found guilty of a felony charged in the first count and a misdemeanor under each of the other five counts.
As to the felony conviction, the defendant was sentenced to a fine of $3,000.00 or to serve a term of three years in the State Penitentiary. He was sentenced on the misdemeanor convictions to serve one day in the Dade County Jail, with credit to be given for the time served in jail prior to sentencing. Defendant paid the fine imposed under the felony conviction.
An appeal has been filed in this court by the defendant from the judgment and sentence imposed under each of the counts.
The state has moved to dismiss this appeal in its entirety on the ground that the appeal has been rendered moot by payment of the fine imposed upon defendant. In support of this position, the state cites the United States Supreme Court case of St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). We do not find the St. Pierre case to be authority for a dismissal of the instant appeal. Therefore, we cannot agree with the state’s contention and deny the motion to dismiss this appeal. The state has moved in the alternative that the appeal, as it relates to the misdemeanor counts, be transferred to the circuit court, the court having jurisdiction of appeals from convictions of misdemeanors. The motion is well taken. Convictions on misdemeanor counts are reviewable by the Circuit Court of Dade County, pursuant to Article V, §§ (5) and (6) of the Constitution of the State of Florida, F.S.A.; and under authority of Rule 2.1, Subd. (a) (5) (d), Florida Appellate Rules 32 F.S.A. This appeal, insofar as it is concerned with the misdemeanor convictions, will, after our decision on the felony appeal, be transferred to the Circuit Court of Dade County by a separate order. See Christian v. State, Fla.App.1965, 176 So.2d 561; Troise v. State, Fla.App.1965, 177 So.2d 24.
Motion to dismiss denied; motion to transfer that portion of the appeal relating to misdemeanor convictions is granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. The Honorable Paul Baker, 248 So. 2d 468 (Fla. 1971)…der improperly transferred to Second District Court of Appeal by Circuit Court; retransferred to Circuit Court); Fice v. State, 232 So. 2d 191 (Fla.App.3rd 1970) (misdemeanor conviction appealed to Third District Court of Appeal) ; Merrill v. State, 225 So. 2d 436 (Fla.App.3rd, 1969) (misdemeanor conviction appealed to Third District Court of Appeal). Conversely, where an appeal is improvidently lodged with a Circuit Court, it may be transferred to the appropriate higher court. In Re Grant’s Estate, 117 So.…
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Kanter v. State, 265 So. 2d 742 (Fla. 3d DCA 1972)…etermination of this matter as to the felony conviction the appeal relating to the misdemeanor conviction will be transferred to the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. See: Merrill v. State, Fla.App.1969, 225 So. 2d 436; Coykendall v. State, Fla.App.1970, 230 So. 2d 702; Maninger v. State, Fla.App.1971, 254 So. 2d 862.…
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Palladino v. State, 267 So. 2d 837 (Fla. 3d DCA 1972)…The circuit court has jurisdiction at the present time over appeals for misdemeanor convictions and, upon the conclusion of the appeal from the felony conviction, this record will be transferred to the circuit court. Merrill v. State, Fla.App. 1969, 225 So. 2d 436; Coykendall v. State, Fla.App. 1970, 230 So. 2d 702; Maninger v. State, Fla.App.1971, 254 So. 2d 862; Kanter v. State, Fla.App.1972, 265 So. 2d 742 [opinion filed August 29, 1972]. We find no abuse of discretion on the part of the trial judge in de…
Authorities Cited
- ST. Pierre v. United States, 319 U.S. 41 (U.S. 1943)
- Christian v. State, 176 So. 2d 561 (Fla. 3d DCA 1965)
- Troise v. State, 177 So. 2d 24 (Fla. 3d DCA 1965)