Hammerl v. State, 2D00-2669.
Citation | 779 So.2d 410 |
Decision Date | 08 September 2000 |
Docket Number | No. 2D00-2669.,2D00-2669. |
Parties | Joseph K. HAMMERL, Appellant, v. STATE of Florida, Appellee. |
Court | Court of Appeal of Florida (US) |
ORDER DENYING REQUEST FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE
Joseph K. Hammerl has filed a document entitled "Motion to Withdraw Appeal" in which he asks this court to dismiss his pending summary postconviction appeal "without prejudice, expressly reserv[ing] the right to file a timely appeal at some future date." We deny his motion1 without prejudice to Mr. Hammerl to file an unconditional voluntary dismissal of this appeal. We publish this order to explain that a district court has no authority to alter or condition the legal effect of an order dismissing any appeal. If a final appeal is dismissed after the time for appeal has expired, this court's order of dismissal cannot reserve to the appellant any right for a subsequent appeal of the same order. On the other hand, if a nonfinal appeal is voluntarily dismissed prior to its disposition on the merits, this court's order of dismissal does not restrict the appellant's ability to raise the same issues in a later final appeal. Our orders of dismissal simply do not affect these jurisdictional rights.
Dismissals of civil actions in trial courts, whether voluntary or involuntary, are routinely entered without prejudice to the party to refile the action. Florida Rule of Civil Procedure 1.420 acknowledges that voluntary dismissals of civil actions are without prejudice unless denominated otherwise in the notice or stipulation, or unless the voluntary dismissal in question follows a refiling after a prior voluntary dismissal. Appellate jurisprudence, on the other hand, has no provision for dismissals without prejudice of final appeals or original proceedings. District courts in Florida have jurisdiction over appeals and certiorari petitions only if the court's jurisdiction is timely invoked. In postconviction proceedings, criminal defendants must institute an appeal within thirty days of the rendering of the order appealed. See Fla. R.Crim. P. 3.850(g); Fla. R.App. P. 9.110(b), 9.140(a). Mr. Hammerl's notice of appeal was timely filed, but if we dismissed this appeal and he later attempted to invoke our jurisdiction to review the order, his second notice would be untimely. We would be required to dismiss that appeal. His attempt to preserve a right to a second appeal is not authorized by the Florida Constitution, the Florida Rules of Appellate Procedure, or Florida Statutes. This court cannot provide him an avenue...
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Walker v. Walker, 3D08-2183.
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Motion practice in the district courts of appeal.
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