Brice v. State, 81-1948

• Decision Date: 22 September 1982
• Docket Number: No. 81-1948,81-1948
• Citation: 419 So.2d 749
• Parties: Howard Lee BRICE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 749

419 So.2d 749

Howard Lee BRICE, Appellant, v. STATE of Florida, Appellee.

No. 81-1948.

District Court of Appeal of Florida Second District.

Sept. 22, 1982.

Philip M. Gerson, Miami, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

BOARDMAN, Judge.

Howard Lee Brice appeals the denial of his motion to tax costs. We dismiss the appeal due to the unexcused and unexplained failure of his counsel to comply with this court's order of July 2, 1982, that he file the certified copy of the trial court's written order that is necessary to vest appellate jurisdiction in this court.

Appellant is a defendant in several criminal cases in Collier County. The trial court adjudged appellant to be indigent, entitling him to the services of the public defender. Appellant did not utilize the services of the public defender, however, but elected to retain private counsel, Philip M. Gerson of Miami, whose fees were paid by appellant's relatives. After tendering a conditional plea of nolo contendere, appellant moved to tax the costs of his defense to Collier County. The trial court orally denied the motion, and this appeal was filed.

In his directions to the clerk, which specified the limited documents he wished included in the record on appeal, Mr. Gerson did not list the order he purported to be appealing. Accordingly, no such order was included in the record on appeal filed in this court. When we became aware that the order appealed from, alleged in the notice of appeal to have been "rendered" on August 24, 1981, was not in the record, we ordered Mr. Gerson to file a certified copy of it and certain other record documents necessary to a proper review which also were not included in the record on appeal. A supplemental record was filed, but the order appealed from was not included therein, again because Mr. Gerson had not requested it. Nor has Mr. Gerson favored this court with any reason for his failure to comply with our order. Our subsequent order that he show cause within ten days why his appeal should not be dismissed was completely ignored.

It may well be that the trial court's oral ruling was never reduced to writing. However, Mr. Gerson specifically stated in his notice of appeal that appellant was appealing "the Order of this Court rendered by Judge Brousseau on August 24, 1981. The nature of the Order is a Final Order denying a motion to tax costs." (Emphasis supplied.) We presume that Mr. Gerson is familiar with the definition of "rendition" contained in Florida Rule of Appellate Procedure 9.020(g): "Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal." (Emphasis supplied.) Given the further fact that Mr. Gerson has never requested the lower court's clerk to include in the record on appeal the order referred to in his notice of appeal, we must assume Mr. Gerson simply chooses not to provide it to us.

If it is in fact the case that the trial court's oral order has never been reduced to writing, making it impossible for Mr. Gerson to comply directly with our order to supply us with a written order, he had only to advise us of that fact. Instead, Mr. Gerson totally ignored our orders concerning this problem, leaving this case, which was filed in this court nearly a year ago, lying in limbo for an additional two months. It is not infrequent that delay by attorneys slows disposition of appellate cases, but seldom is this court treated with such flagrant disrespect as Mr. Gerson's...