Hammerl v. State, 2D00-2669.

Citation779 So.2d 410
Decision Date08 September 2000
Docket NumberNo. 2D00-2669.,2D00-2669.
PartiesJoseph K. HAMMERL, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

ORDER DENYING REQUEST FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE

PER CURIAM.

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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14 cases
  • Caiazzo v. American Royal Arts Corp.
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 2011
    ...to retain jurisdiction and proceed with the appeal even where a notice of voluntary dismissal is timely filed.”); Hammerl v. State, 779 So.2d 410, 411 n. 1 (Fla. 2d DCA 2000) (“A district court has the discretion when a timely notice of voluntary dismissal is filed to reject the appellant's......
  • Harris v. Sec'y, Dep't of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • December 21, 2012
    ...2001, through September 14, 2001, thirty days after the trial court denied his motion. See Fla. R. App. P. 9.110(b); Hammerl v. State, 779 So. 2d 410 (Fla. 2d DCA 2000). Petitioner had 155 days remaining of the one-year limitations period, or until February 18, 2002, in which to file his fe......
  • State v. Cassells
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 2003
    ...to pursue the issue at a later time because unconditional dismissals of nonfinal appeals are without prejudice. See Hammerl v. State, 779 So.2d 410, 411 (Fla. 2d DCA 2000). If anything, an Anders brief in such a nonfinal appeal could result in a decision affirming the trial court that might......
  • Walker v. Walker, 3D08-2183.
    • United States
    • Court of Appeal of Florida (US)
    • February 11, 2009
    ...should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew). See also Hammerl v. State, 779 So.2d 410 (Fla. 2d DCA 2000); Thermoplastic & Signs, Inc. v. Metro. Dade County, 746 So.2d 1140 (Fla. 3d DCA Appeal dismissed. 1. A question arose whe......
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1 books & journal articles
  • Motion practice in the district courts of appeal.
    • United States
    • Florida Bar Journal Vol. 81 No. 4, April 2007
    • April 1, 2007
    ...This permits the court to address jurisdiction before briefing and other work is expended on the appeal. (6) See Hammerl v. State, 779 So. 2d 410, 411 n.1 (Fla. 2d D.C.A. (7) But see Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678, 679 (Fla. 2d D.C.A. 1991) (involving appellate attorneys'......

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