JOHN HENRY BOOKER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Motion To Modify Sentence cases and more on FLexlaw
PER CURIAM.
Affirmed.
CROSS and OWEN, JJ., concur.
DOWNEY, J., dissents, with opinion.
DOWNEY, Judge
(dissenting).
Appellant pleaded guilty to one count of first degree murder and one count of second degree murder. Judgment and sentence was rendered on December 11, 1975.
On January 7, 1976, appellant filed a pro se “Motion for Apeal” in which he petitioned the court to modify his life sentence by suspending sentence and imposing a period of probation because “petitioner has a girl friend who has a year and a half (1J4) year old child to support” and his mother and sister are also in need of his support. The trial court treated this motion as one for modification of sentence and denied it by order rendered January 13, 1976.
On February 17, 1976, appellant filed a notice of appeal to review the judgment and sentence of December 9, 1975 (rendered December 11, 1975).
If we had jurisdiction to reach the merits of this appeal I would concur in an af-firmance. However, resisting the temptation to overlook the jurisdictional deficiency as a matter of expedition, I would dismiss the appeal for lack of jurisdiction.
The notice of appeal was untimely from either the judgment and sentence rendered December 11, 1975, or the order denying appellant’s motion to modify his sentence. The only basis upon which the appeal would be timely is to treat the “Motion for Apeal” as a proper notice of appeal. But the purpose of that motion was to petition the trial court to modify the sentence, clearly a prerogative of the trial court. In no stretch of the imagination was it intended to seek appellate review, unless use of the word “apeal” suffices.
Accordingly, I would dismiss the appeal as untimely.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. McQUAY, 403 So. 2d 566 (Fla. 3d DCA 1981)…assault (Count III). The State’s traverse specifically discounted the defendants’ position that the victim had not been placed in a well-founded fear of bodily injury and that there was no use or involvement of a deadly weapon. See: State v. Guyton, 331 So. 2d 392 (Fla. 4th DCA 1976). It was error to dismiss the charges of the display of a firearm while committing a felony (Count IV), and the display of a weapon while committing a felony (Count V). Simply because the victim and the police could not identify…
-
State v. Shull, 390 So. 2d 1233 (Fla. 5th DCA 1980)…of the alleged facts in the supporting memorandum of law, the state’s traverse was sufficient to raise disputed material issues of fact regarding defendant’s knowledge and intent, thereby requiring a denial of the motion to dismiss. State v. Guyton, 331 So. 2d 392 (Fla. 4th DCA 1976); State v. West, 262 So. 3d 457 (Fla. 4th DCA 1972). The order dismissing the amended information is reversed and the cause remanded for further proceedings consistent herewith. REVERSED AND REMANDED. DAUKSCH, C. J., concurs.…
-
Ferrinti v. State, 400 So. 2d 564 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Martinez v. State, 368 So. 2d 338, 339-340 (Fla.1978); Watford v. State, 353 So. 2d 1263 (Fla.1st DCA 1978); State v. Smith, 348 So. 2d 637, 638-39 (Fla.2d DCA 1977); see State v. Guyton, 331 So. 2d 392 (Fla.4th DCA), cert. denied, 336 So. 2d 1182 (Fla.1976).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence