Hayman v. State, 93-02156
| Decision Date | 16 March 1994 |
| Docket Number | No. 93-02156,93-02156 |
| Citation | 634 So.2d 1097 |
| Parties | 19 Fla. L. Weekly D616 Michael Thomas HAYMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ann T. Frank, Naples, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.
Michael Thomas Hayman appeals a nonfinal order of the circuit court, acting in its appellate capacity. The order denies his motion to supplement the circuit court record on appeal. We conclude that our jurisdiction to review this order is limited, at best, to common law certiorari. Although the state concedes that Mr. Hayman should be allowed to supplement the record on appeal, our record does not establish a basis for the issuance of a writ of common law certiorari. Moreover, the notice of appeal was not timely filed. Accordingly, we dismiss this proceeding.
Mr. Hayman pleaded nolo contendere in county court to DUI and reserved the right to appeal the issue of whether his prior driving record permitted this conviction to be treated as a third conviction. See Sec. 316.193(6)(c), Fla.Stat. (Supp.1992). Apparently, there are questions concerning the precise charge in one of the earlier cases and his right to counsel in one or more of those proceedings.
On appeal to the circuit court, Mr. Hayman's attorney discovered that her client's official driving record and a transcript of an earlier proceeding in Brevard County had not been included in the record on appeal. The state agreed that the driving record had been presented to the county court and would normally be included in the record, but declined to stipulate to the supplementation. The transcript of the Brevard County proceeding was prepared after the hearing in county court. Nevertheless, the state also had no objection to its inclusion in the record.
On March 19, 1993, the circuit court denied the motion to supplement the record. On April 5, 1993, Mr. Hayman's attorney filed a motion for rehearing. The circuit court denied rehearing on May 6, 1993. On June 23, 1993, Mr. Hayman's attorney filed a "Notice of Appeal," stating that the order on appeal is a nonfinal order and requesting a writ of certiorari.
This case presents a series of jurisdictional issues. First, we conclude that a nonfinal order entered by a circuit court in its appellate capacity is not an order that can be appealed under Florida Rule of Appellate Procedure 9.110 or 9.130. Mr. Hayman argues that this order is a nonfinal order entered after a final order and is appealable pursuant to rule 9.130(a)(4). We disagree because the nonfinal order denying the motion to supplement was not entered by the same court that entered the final judgment and sentence.
Second, our authority to review final orders rendered by the circuit court in its appellate capacity is limited to review by common law certiorari. See Fla.R.App.P. 9.100; Dooley v. Culver, 392 So.2d 575 (Fla. 4th DCA 1980); City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980). Arguably, a nonfinal...
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...(holding that a trial court has no authority under rule 1.090(b) to extend the time for taking an appeal); see also Hayman v. State, 634 So.2d 1097, 1098 (Fla. 2d DCA 1994) (holding that the trial court in a criminal case had no power to extend the time for the filing of a notice of appeal)......
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...appellate capacity is not an order that can be appealed under Florida Rule of Appellate Procedure 9.110 or 9.130." Hayman v. State, 634 So. 2d 1097, 1098 (Fla. 2d DCA 1994). Moreover, "[w]hether the courts of appeal have certiorari jurisdiction over non-final orders of the circuit court sit......
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