MARVIN SHELBY AND ROBERT BRILL
v.
STATE OF FLORIDA
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The Florida Supreme Court held that when a motion for new trial is timely filed in a criminal case after judgment and sentencing, the ninety-day period to appeal begins from the date the motion for new trial is denied, not from the date of the initial judgment. This decision resolved a procedural question about the finality of judgments in criminal cases.
The court held that when a motion for new trial is seasonably filed after entry of judgment and sentence, the appeal period is computed from the date the motion for new trial is denied, not from the date of the initial judgment. Accordingly, the motion to dismiss the appeal was denied.
“So long as the motion is pending the cause is in the breast of the court.”
Establishes that a pending motion for new trial keeps the case within the trial court's jurisdiction and discretion
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Join FLexlaw to unlock all legal intelligenceMarvin Shelby and Robert Brill were found guilty of larceny of a hog on February 3, 1944. On February 4, 1944, they filed a motion for new trial, and …
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The court is asked to dismiss an appeal taken by the appellants from an adverse judgment and sentence.
On February 3, 1944, the appellants, Marvin Shelby and Robert Brill, were found guilty by a jury of the larceny of a hog. On February 4, 1944, the defendants filed their motion for new trial. On the same day the trial court entered judgment, and sentenced the defendants without disposing of the pending motion for new trial. On July 6, 1944, the trial court entered its order denying the pending motion for new trial. The following day the defendants took and entered an appeal to the Supreme Court of Florida from the judgment of conviction. The State of Florida moves to dismiss the appeal on the ground that the appeal was not táken within ninety days from the entry of judgment and sentence, as required by Sec. 924.09 Florida Statutes, 1941.
Under the statutes of this State a motion for new trial in a criminal case raises for determination alleged prejudicial errors concerning matters in pais occurring during the course of the trial. See Sec. 920.05 Florida Statutes, 1941. So long as the motion is pending the cause is in the breast of the court. The trial court in its discretion may sentence' the defendant either before or after the filing of a motion for new trial. Sec. 920.07 Florida Statutes, 1941. If on motion for new trial seasonably filed after entry of judgment and sentence a new trial is granted the new trial proceeds in all respects as if no former trial had been had. Sec. 920.09 Florida Statutes, 1941. In such event the verdict, judgment and sentence entered on the first trial amounts to nothing, so far as fixing the degree of guilt and punishment of the defendant is concerned; except that where the offense charged is divided into degrees and the defendant has been convicted of a lesser degree, he cannot on the new trial be prosecuted *184for a higher degree of the same offense than that found by the verdict. See Sec. 920.09 Florida Statutes, 1941.
When all these facts are taken into consideration, we think it clear that for the purpose of taking an appeal the character of finality in such a situation does not attach to the judgment until a motion for new trial seasonably made has been denied. See McClellan v. Wood, 78 Fla. 407, 93 So. 295; Lee v. State, 128 Fla. 319, 174 So. 589. We hold, therefore, that in a criminal case where judgment and sentence have been entered against a defendant prior to the filing of a motion for new trial duly and seasonably made, the time within which he must take his appeal to the Supreme Court from the adverse judgment is computed from the date of the entry of the order denying the motion for new trial, and not from the date of the entry of the prior judgment. The motion to dismiss the appeal is denied.
It is so ordered.
BUFORD, C. J., BROWN and THOMAS, JJ., concur.
December 1, 1944 20 So. (2nd) 500
On Rehearing January 23, 1945
Judgment affirmed.
BUFORD, C. J., BROWN, THOMAS and SEBRING, JJ., concur.
A rehearing having been granted in this cause and the cause having been further considered upon the record and briefs for the respective parties, it is ordered and adjudged by the court that the judgment of the court of record for Escambia County, Florida in this cause be and it is hereby reaffirmed and adhered to on rehearing.
CHAPMAN, C. J., BROWN, BUFORD, THOMAS and SEBRING, JJ., concur.
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Citator
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Harper v. State, 201 So. 2d 65 (Fla. 1967)…This, in effect, is what Harper was trying to do at the hearing now under review. His motion for a new trial had just been denied, and he was attempting a somewhat delayed, but still timely, appeal from his original conviction. See Shelby v. State, 155 Fla. 182, 20 So. 2d 500, 21 So. 2d 787. In making this attempt, Harper requested that counsel be appointed to represent him on direct appeal. The trial judge denied this request, stating that under Florida law an indigent defendant has no right to appointed…
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Costello v. State, 246 So. 2d 752 (Fla. 1971)…timely filed, the time within which a defendant is required to take his appeal from the adverse judgment is computed from date of entry of the order denying the motion for new trial, not from the date of entry of the prior judgment. Shelby v. State, 155 Fla. 182, 21 So. 2d 787 (Fla.1944). Assuming arguendo that the June 19 motions may be treated collectively as a motion for new trial or in arrest of judgment, it is necessary to consider whether the motions were timely made. Rule 1.590(a) provides: “A moti…
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Redwing Carriers, Inc. v. Carter, 64 So. 2d 557 (Fla. 1953)…488; Parradee v. Steed, 127 Fla. 769, 173 So. 842; Lee v. State, 128 Fla. 319, 174 So. 589; Shayne v. Pike, 131 Fla. 71, 178 So. 903, motion denied 131 Fla. 862, 180 So. 382; Cole v. Walker Fertilizer Co., 147 Fla. 1, 1 So. 2d 864; Shelby v. State, 155 Fla. 182, 20 So. 2d 500, 21 So. 2d 787; Kent v. Marvin, Fla., 59 So. 2d 791. And except for the fact that 31 F.S.A. Equity Rule 71 specifically provides that no petition for rehearing shall operate to stay the proceedings unless so ordered by the court, the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McClellan v. Wood, 78 Fla. 407 (Fla. 1919)
- Lee v. State, 128 Fla. 319 (Fla. 1937)
- Shirey v. Zella Dowling, 155 Fla. 433 (Fla. 1945)