FRANK ANTHONY PACE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1976-07-16
No. 75-1331
WALDEN and DOWNEY, JJ„ concur.
335 So. 2d 11 Florida District Court of Appeal, Fourth District (1976) Negative Treatment
Cited by 4 cases

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Synopsis

Frank Anthony Pace appealed a judgment from the Circuit Court of Osceola County, but the appellate court dismissed the appeal for lack of jurisdiction because no appealable judgment was entered on the date specified in the notice of appeal.


Holding

The appellate court lacks jurisdiction to review the appeal because no appealable judgment exists in the record for the date specified in the notice of appeal, and the subsequent order from September 4, 1975, was entered after the appeal was filed and therefore cannot be considered on appeal.


Headnotes

[1] An appeal must be dismissed for lack of jurisdiction when the notice of appeal is filed before the entry of an appealable judgment or ruling.

[2] An appellate court cannot reach the merits of an issue when the appeal is fundamentally flawed by a lack of jurisdiction.

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Key Quotes

“a review of the appellate record fails to reflect the existence of any appealable judgment (or ruling) either orally or in writing on the said July 21, 1975”

Establishes the fundamental jurisdictional defect: no appealable judgment exists for the date specified in the notice of appeal.

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Facts & Procedural History

Pace filed a notice of appeal on July 23, 1975, directed to a judgment dated July 21, 1975, from the Circuit Court of the Ninth Judicial Circuit in Os…

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Opinion of the Court
MAGER, Chief Judge.

MAGER, Chief Judge.

Upon review of the briefs and record on appeal we are of the opinion that the cause must be dismissed for lack of jurisdiction.

The notice of appeal contained in the appellate record which was filed on July 23, 1975 is directed to the “judgment, rulings or minutes of the Circuit Court of the Ninth (9th) Judicial Circuit in and for Osceola County, Florida, bearing the date July 21, 1975, and rendered and recorded in Circuit Court Minutes Book 13, Page 452”. However, a review of the appellate record fails to reflect the existence of any appealable judgment (or ruling) either orally or in writing on the said July 21, 1975. Cf. Williams v. State, 324 So. 2d 74 (Fla.1975).

The briefs of the public defender and the state fail to address themselves to the jurisdictional point and have instead sought to present an appellate issue involving an order entered on September 4, 1975 and styled “Order Withholding Adjudication of Guilt and Placing Defendant on Probation”. This order is unfortunately not before the court because the appeal was filed before this order was entered. Except for the briefs, there is nothing in the appellate record seeking a review of this order. In this regard, we observe that the order of probation contains a condition which on its face is null and void.1 See Heath v. State, 310 So. 2d 38 (Fla.App.4th, 1975); State v. Gansz, 297 So. 2d 614 (Fla.App.4th, 1974). However, because of the fundamental jurisdictional problem this court is unable to reach and treat the appellate issue.

Accordingly, the appeal is dismissed without prejudice to the defendant to pro ceed in the trial court pursuant to' Rule 3.-800, FRCrP, Correction and Reduction of Sentences,2 or pursuant to any other procedure providing post-conviction relief with the respectful request that the trial court entertain such proceeding upon the defendant’s or the court’s own motion.

WALDEN and DOWNEY, JJ„ concur. . The objectionable condition contained in the order provided for the defendant to “submit your person, residence or automobile to search by Probation Supervisor or law enforcement officer upon demand without search warrant.” ,A determination of probation cannot result in depriving the probationer of his constitutional guarantee of unreasonable searches and seizures. See State v. Gansz, supra. The further condition imposing jail time during the probationary period is valid. Lewis v. State, 298 So. 2d 540 (Fla.App.4th, 1974).

. Under Rule 3.800, FRCrP, a court may “at any time correct an illegal sentence imposed by it” or may “reduce a legal sentence imposed by it . . . within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal . . . ”.


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Citator

Cited By

  • Pace v. State, 350 So. 2d 1075 (Fla. 4th DCA 1977)
    …sidence or automobile to search by Probation Supervisor or law enforcement officer upon demand without search warrant.” This court dismissed the appeal for lack of jurisdiction because the notice of appeal predated any written order. Pace v. State, 335 So. 2d 11 (Fla. 4th DCA 1976). In dismissing the appeal the court gratuitously said “. . .we observe that the order of probation contains a condition which on its face is null and void.” The footnote reference quotes the foregoing condition. In due course a…
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