RANDALL DASHER AND FRED DASHER, PETITIONERS,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioners convicted of possessing or selling obscene material sought certiorari review of a circuit court's dismissal of their appeal for failure to prepare the record transcript. The court upheld the dismissal, finding no abuse of judicial discretion where petitioners failed to comply with procedural rules despite ample opportunity to seek extensions during settlement negotiations.
The circuit court did not abuse its discretion in dismissing the appeal under Rule 6.13 of the Florida Appellate Rules. The petitioners offered no reasonable excuse for their failure to comply with procedural requirements, and they failed to seek an extension of time from the trial judge despite pending settlement negotiations.
[1] An appellate court may dismiss an appeal that is not properly prosecuted.
[2] A trial court has discretion to dismiss an appeal for failure to comply with procedural rules.
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Join FLexlaw to unlock all legal intelligence“It is well established that an appellate court has the express power under Rule 6.-13, supra, as well as the inherent power to dismiss an appeal where the same is not properly prosecuted.”
Establishes the appellate court's authority to dismiss non-compliant appeals
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Join FLexlaw to unlock all legal intelligenceRandall and Fred Dasher were convicted in county court of possession or selling of obscene material under a local ordinance. They timely filed notice …
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[*117] BOARDMAN, Judge.
A petition for writ of certiorari was timely filed by Randall Dasher and Fred Dasher for review of an order of the circuit court, acting in its appellate capacity, dismissing petitioners’ appeal. The petitioners were found guilty in county court of the possession or selling of obscene material contrary to the local ordinance. They did timely file notice of appeal, assignments of error and directions to the clerk on August 29, 1973. No designations of the record that petitioners desired in processing their appeal to the circuit court were given to the court reporter. Apparently, because the clerk was not paid for his services, no portion of the record was filed with the circuit court. The petitioners had not been declared indigent.
It appears from a review of the record that there was some communication between the attorney for the petitioners and the reporter and the reporter requested a $500 deposit be paid by the petitioners for the preparation of the transcript. This amount was not furnished the reporter until November 21, 1973, and appears to have been prompted by the respondent filing a motion to dismiss the appeal for the failure of the petitioners to comply with the applicable rules of procedure. The circuit court dismissed the appeal on the authority of Rule 6.13, F.A.R., 32 F.S.A. This action was within the judge’s judicial discretion.
There are allegations in the petition to the effect that the failure to compile the record for the appeal was the result of a communication breakdown between the attorney for the petitioners and the court reporter. We take note and feel constrained to state, however, that in the petitioners’ response to the state’s motion to dismiss the appeal the petitioners asserted that the record on appeal had not been prepared because of their expectation of settling this case as well as three other pending charges, it appearing that such negotiations were taking place between representatives of the state attorney’s office and the attorney for the petitioners. This latter version of the petitioners’ failure to comply with the Rule, supra, appears to be supported by the record. We quickly add that the record fails to show that the petitioners availed themselves of the opportunity of presenting a motion for an extension of time to file the transcript of record to the trial judge during the pending settlement negotiations referred to above. We find, as the trial judge must have found, that there was no reasonable explanation or excuse for the petitioners’ failure to do so.
A careful consideration of the record before us, in the light of the applicable rules of procedure and case law, leads us to the conclusion that certiorari should be denied.
We conceive our responsibility and authority to review such cases as the one before us as did the court in Mitchell v. City of Fort Lauderdale, Fla.App.4th, 1971, 254 So. 2d 824:
Our review is limited to a determination from the record before us whether the lower court has exceeded its jurisdiction or has otherwise deviated from the essential requirements of law.
It is well established that an appellate court has the express power under Rule 6.-13, supra, as well as the inherent power to dismiss an appeal where the same is not properly prosecuted. Hemmerle v. City of Wilton Manors, Fla.App.4th, 1971, 251 So. 2d 146.
For the above reasons we find that there is no ground for review by certiorari.
Certiorari denied.
McNULTY, Acting C. J., and GRIMES, J., concur.
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State v. Clyde, 299 So. 2d 136 (Fla. 2d DCA 1974)…determination of whether the judge exceeded his authority or otherwise departed from the essential requirements of law and recently we have upheld the ruling of a circuit court judge sitting as an appellate judge. Dasher v. State, Fla.App.2nd, 1974, 291 So. 2d 116. Our decision not to do so in the case sub judice is based solely on the premise that essential requirements of law were not followed. We have been unable to glean from reading this record and determine as a matter of law that Clyde, as Superintende…
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Metro. Dade Cnty. v. Norbert J. Stein, 296 So. 2d 643 (Fla. 3d DCA 1974)…diction or departed from the applicable principles of law. Robert Jones v. City of Hialeah, Fla.App.3rd, 1974, 294 So. 2d 686 (opinion rendered April 2, 1974, Cases Nos. 73-797; 73-798; 73-799, not yet reported); Dasher v. State, Fla. App.2nd, 1974, 291 So. 2d 116. Further, we are constrained to mention that the record before us discloses that this case has been pending for an undue length of time, i.e., from March 5, 1972, the date of the Employee’s suspension, to October 1, 1973, the date of the entry of t…
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Dasher v. State, 294 So. 2d 656 (Fla. 1974)…Certiorari dismissed. 291 So. 2d 116.…
Authorities Cited
- Hemmerle v. City OF Wilton Manors, 251 So. 2d 146 (Fla. 4th DCA 1971)
- Mitchell v. City OF Fort Lauderdale, 254 So. 2d 824 (Fla. 4th DCA 1971)