Chambers v. State, 80-984
| Decision Date | 17 December 1980 |
| Docket Number | No. 80-984,80-984 |
| Citation | 391 So.2d 352 |
| Parties | Cornell CHAMBERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
This is before us on a motion by the state to dismiss the instant appeal insofar as it includes the adjudication of guilt on the charge of aggravated battery by the trial court on August 17, 1979. At that time sentencing was postponed pending receipt by the trial court of a presentence investigation. Nevertheless, on August 23, 1979, the defendant filed his notice of appeal from the judgment of guilt. That appeal was Case No. 79-93. He was released on supersedeas bond pending sentence.
Appellant failed to appear for his scheduled sentencing in April, 1980. Consequently, a capias issued for his arrest and the state moved to dismiss his appeal. That motion was granted by this Court and we dismissed the appeal in Case No. 79-93 on May 16, 1980, citing three cases in support of that order: Jones v. State, 362 So.2d 149 (Fla. 3d DCA 1978); Mitchell v. State, 270 So.2d 447 (Fla. 1st DCA 1972); and Decree v. State, 180 So.2d 667 (Fla. 1st DCA 1965).
Subsequent to the dismissal of defendant's appeal of his judgment of conviction, he was apprehended and sentenced on August 15, 1980, to 15 years imprisonment. He again filed notice of appeal to this Court, which is the instant case.
In its motion to dismiss this second appeal of the judgment of conviction, the state points out that the new notice of appeal is tantamount to an attempt to reinstate the previous appeal. The denial of the state's motion would be in direct contravention of our holding in Brown v. State, 388 So.2d 586, 587 (Fla. 5th DCA), wherein we said:
that if an appellant in a criminal case escapes from lawful confinement, or voluntarily, without authorization, absents himself from the jurisdiction of this court while on probation, then his appeal is subject to dismissal and if dismissed will not be reinstated upon return to the jurisdiction of the court. (emphasis supplied).
In Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974), the court refused to reinstate a dismissed appeal after the defendant's apprehension absent a showing of good cause. Marshall v. State, 344 So.2d 646 (Fla. 2d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977), is distinguishable from the instant case because the appellant there had been returned to the custody and jurisdiction of the court before hearing on the motion to dismiss his appeal.
The appellant Chambers has not sought to have Case No. 79-93 reinstated, nor offered good cause to do so. That dismissal is final. 1 Instead, the defendant has merely filed a new appeal following sentence. Although a defendant who files a timely notice of appeal within thirty (30) days of sentence thus preserves for review both judgment and sentence, the filing of an earlier notice following the judgment of conviction but preceding the sentence severs these issues for purposes of appellate review. Compare Williams v. State, 324 So.2d 74 (Fla.1975). That is what the defendant did in this case. He cannot have two bites at the same apple.
The response of the appellant to the state's motion to dismiss is the argument, predicated upon dictum in Marshall, that...
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Maffea v. Moe, 85-2451
...also that speaks of reinstatement of criminal defendants' appeals for good cause. E.g., Mitchell v. State; see also Chambers v. State, 391 So.2d 352 (Fla. 5th DCA 1980). The cases of this genre seem to treat the power of the appellate court to reinstate such an appeal as unaffected by time ......