Maffea v. Moe, 85-2451

• Citation: 483 So.2d 829,11 Fla. L. Weekly 524
• Decision Date: 26 February 1986
• Docket Number: No. 85-2451,85-2451
• Parties: 11 Fla. L. Weekly 524 John MAFFEA, Petitioner, v. The Honorable LeRoy MOE, Circuit Court Judge of the 17th Judicial Circuit, In and For Broward County, Respondent.
• Court: Court of Appeal of Florida (US)

Page 829

483 So.2d 829

11 Fla. L. Weekly 524

John MAFFEA, Petitioner, v. The Honorable LeRoy MOE, Circuit Court Judge of the 17th Judicial Circuit, In and For Broward County, Respondent.

No. 85-2451.

District Court of Appeal of Florida,

Fourth District.

Feb. 26, 1986.

Dennis J. Cary of Maurice Graham, P.A., Ft. Lauderdale, for petitioner.

Jim Smith, Atty. Gen., Tallahassee and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for respondent.

GLICKSTEIN, Judge.

This is a petition for writ of mandamus of a defendant who was appellee in an appeal by the state to the circuit court from dismissal of the information against him in the county court. Petitioner seeks an order to the circuit court to vacate all of its orders issued subsequent to its dismissal of the state's appeal. We deny the petition and find the trial court had jurisdiction to enter the subject orders.

Petitioner was charged with driving while intoxicated. On the date set for trial the county court heard his motion to dismiss, and granted it. According to the order granting his motion to dismiss the information against him, the information was fatally defective because it failed to identify the intoxicant, use of which resulted in his intoxication while driving. The state filed an appeal on the date the written order was issued, December 21, 1982. There were stipulations concerning the potential impact on the case of the expected opinion of this court in State v. Block (eventually published at 428 So.2d 782 (Fla. 4th DCA 1983)). It was understood between the attorneys that briefs would not be filed until appellee's counsel could review the state's brief in the Block appeal, and later it was agreed to hold off on this appeal pending the outcome in Block.

On April 29, 1983, the state attorney notified appellee's counsel the Block decision had been rendered, and asked that counsel advise on the most expedient course to follow. Appellee's counsel failed to answer; and on December 22, 1983, and, much later, on January 31, 1985, the state made written inquiry of appellee's counsel as to how the parties ought to proceed as to the appeal.

On February 13, 1985, the clerk of the circuit court noticed the state that it had not filed its initial brief; and that if it did not take appropriate action within twenty days the appeal would be dismissed. No brief having been filed, on March 11, 1985, the circuit court dismissed the appeal for lack of prosecution.

On April 13, 1985, the state moved for reconsideration of the order dismissing the appeal. On May 30, 1985, the circuit court granted the motion and reinstated the appeal.

On June 28, 1985, the state filed its initial brief. On July 16, 1985, petitioner filed a motion to dismiss the appeal and his answer brief. On July 19, 1985, the state filed its response to petitioner's motion to dismiss. On July 24, 1985 (order is misdated July 24, 1984), the circuit court rendered its opinion, reversing the county court's dismissal of the information, in reliance upon this court's opinions in Block and State v. Cardinal, 429 So.2d 747 (Fla. 4th DCA 1983). The circuit court issued its mandate on September 20, 1985. Petitioner's motion to dismiss was heard October 24, 1985, and the circuit court denied the motion, leading to the present petition.

The issue is whether the circuit court should be ordered to vacate all of its orders subsequent to its dismissal of the state's appeal of the county court's dismissal of this criminal case, as the circuit court lacked jurisdiction to reinstate the appeal. We conclude it should not.

Petitioner bases his petition on the following arguments: (1) The state had fifteen days after dismissal of its appeal, under Florida Rule of Appellate Procedure 9.330(a), to move for rehearing, but failed to do so. (2) The circuit court's dismissal took place on March 11, 1985. Its term ended on the same date. The state's motion to reinstate the appeal occurred thirty-two days later, at which point in time the circuit court no longer had jurisdiction.

Respondent's arguments are as follows: (1) Petitioner has failed to supply this court with sufficient of the record for this court to determine whether there was error, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Brice v. State, 419 So.2d 749 (Fla. 2d DCA 1982). (2) Petitioner speaks of the dismissal of the state's appeal as a mandate, but there was no mandate, only an order dismissing the appeal. There is no time limit for filing a motion for reconsideration of an order dismissing an appeal. A dismissed appeal may be reinstated for good cause shown, Mitchell v. State, 294 So.2d 395, 397 (Fla. 1st DCA 1974). Here, the good cause was the state attorney's seeking an agreement with petitioner's counsel on how the parties should proceed. (3) Petitioner waived any objection to reinstatement of the appeal by counsel attending the hearing on the motion to reconsider the dismissal order, without raising such objection.

The key issue is whether the circuit court had jurisdiction to reinstate the appeal when it did. If it did not, it does not matter if this court is shown the transcripts of hearings or if petitioner's counsel waived objection, there being no way for this court, the circuit court or the parties to create jurisdiction where it does not exist. If it did, then mandamus should not be granted. Absence of an adequate record on appeal to show whether there was good cause is of no concern, as petitioner's attack on the reinstatement is not based on the merits. We must accordingly examine authorities to determine whether jurisdiction existed.

It is evident an appellate court's power to recall its mandate is limited to the term during which the mandate was issued. E.g., State Farm Mutual Automobile Insurance Company v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980, 982-83 (Fla.1981). Is this also true of other final orders issued by an appellate court, and, specifically, an order dismissing an appeal? Case law is meager, but it is not true of all final orders. Also, does Florida Rule of Appellate Procedure 9.330 make the stated time limit for rehearing jurisdictional? We hold it does not.

We shall deal with the second question first. There are a number of cases in which motions for rehearing, filed beyond the time stated in the appellate rule, were stricken as untimely; yet the appellate court sua sponte reconsidered its decision. E.g., Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965). This suggests the time limit, stated in the rule, for moving for rehearing, is not jurisdictional. The indication in the rule that the court may set a different time limit suggests the same thing. ¹

Bretti v. Wainwright, 225 So.2d 516 (Fla.1969), said that appellate courts have the jurisdiction and inherent discretion to dismiss appeals and refuse their reinstatement for appellant's failure to prosecute the appeal. Absent law to the contrary, it can be reasonably inferred that appellate courts also have the discretion to reinstate such appeals. There is case law 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 limits. ²

There appears to be no Florida case law directly on point. This may be because here the District Courts of Appeal are the appellate workhorses; they are for the most part the courts of last resort, not intermediate courts of appeal; and they handle dismissals for failure to prosecute by order rather than opinion. There seems to be no doubt, however, that appeals dismissed for failure to prosecute have occasionally been reinstated in Florida District Courts without regard to...