Mitchell v. State
| Decision Date | 14 May 1974 |
| Docket Number | No. Q-430,Q-430 |
| Citation | 294 So.2d 395 |
| Parties | John Allen MITCHELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph A. St. Ana, Jacksonville, and John Allen Mitchell, in pro. per., for appellant.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
Appellant was convicted of first degree murder with a recommendation of mercy. Timely appeal was taken and an attorney was appointed to represent him. All briefs were filed and the cause was set for oral argument on November 14, 1972. Prior to that date appellant escaped. A motion to dismiss the appeal was filed by the State and this Court entered an order of dismissal on December 19, 1972. Appellant was subsequently apprehended and is back in custody. On November 29, 1973 appellant filed a petition for reinstatement of his appeal. No cause is alleged for reinstatement except that appellant is now back in custody.
In Woodson v. State, S.C.Fla.1882, 19 Fla. 549, the Supreme Court of this State committed itself to the proposition that an appeal will not be considered when the appellant is not within the control of the court.
In Bronk v. Bronk, S.C.Fla.1903, 46 Fla. 474, 35 So. 870, the Supreme Court of Florida again said:
'* * * The appellant having, since he took this appeal, voluntarily placed himself in contempt of the orders of the court below, and having gone beyond the jurisdiction of this court, so that no order or decree it might make in the premises could be personally enforced against him, we are confronted with the question whether he has a right to a hearing on questions based on the injunction and ne exeat orders. * * *
'But the right to be heard upon appeal or writ of error has not been held to be one which a party cannot deprive himself of by his voluntary act of putting himself in contempt of the court by escaping from custody and evading the power and process of the law and the courts. * * *'
The court thereupon continued, citing Woodson v. State, supra:
'In this state it is decided that an appellate court will refuse to hear a criminal case on writ of error where the plaintiff in error has escaped, and is not within the control of the court below, either actually by being in custody, or constructively by being out on bail.'
In Bretti v. State, 3 Fla.App.1968, 210 So.2d 472, our sister court of the Third District granted the State's motion to dismiss an appeal on the ground that the appellant had fled to avoid commencement of sentence under another conviction.
Appellate courts in other states have also held that a dismissal of the appeal was appropriate in criminal cases wherein it appeared that the accused had escaped.
In Allen v. State of Georgia, 1897, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949, the Supreme Court of the United States affirmed an order of the Supreme Court of the State of Georgia dismissing a writ of error upon the appellant having escaped during pendency of the appeal, holding that such dismissal is not a denial of due process of law. In that case the Supreme Court of the State of Georgia had entered an order to the effect that the appeal would be dismissed unless the appellant surrendered himself or was recaptured within sixty days of the date of the order. The appellant not having been surrendered nor recaptured within the sixty day period the appeal, or writ of error, was dismissed. The Supreme Court of the United States in that case stated:
'We know at present of no reason why the same course may not be taken in criminal cases if the laws of the state or the practice of its courts authorize it. * * *
'We cannot say that the dismissal of a writ of error is not justified by the abandonment of his case by ...
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Bargo v. State
...to reinstatement on motion by the appellant upon a showing of good cause. See, e.g., Derrick v. State, supra; Mitchell v. State, 294 So.2d 395 (Fla.Dist.Ct.App.1974); White v. State, supra. Still other jurisdictions held that reinstatement should be granted unless the State can show prejudi......
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Gurican v. State, 89-125
...such appeals, it has been because the respective defendants were beyond the jurisdiction of the court. For example, in Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974), after conviction and while his appeal was pending, Mitchell escaped. While Mitchell was still at large, the state file......
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Marshall v. State
...should proceed now that he is amenable to further order of the court. The only Florida decision shedding any light on this issue is Mitchell v. State, supra, in which a defendant who was subsequently apprehended sought to reinstate his appeal which was dismissed following his escape. The co......
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Maffea v. Moe, 85-2451
...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 ......