Pittman v. State, MM-187

• Decision Date: 09 May 1979
• Docket Number: No. MM-187,MM-187
• Citation: 370 So.2d 1207
• Parties: Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1207

370 So.2d 1207

Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.

No. MM-187.

District Court of Appeal of Florida, First District.

May 9, 1979.

Rehearing Denied June 11, 1979.

Robert G. Kerrigan, of Kerrigan, Estess & Rankin, Pensacola, for appellant.

Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION TO DISMISS THE APPEAL

ROBERT P. SMITH, Jr., Judge.

The state's motion to dismiss Pittman's appeal as untimely raises the question of whether the beginning of the 30-day appeal period in this criminal case was postponed by the filing of a motion in arrest of judgment within 15 days after the adjudication of guilt but 65 days after rendition of the jury verdict. The trial court entertained the motion in arrest of judgment but denied it on the merits; hence Pittman's appeal. We hold that Fla.R.Crim.P. 3.590 requires the filing of any motion in arrest of judgment within four days after the verdict in a jury trial, or by leave of court within 15 days after the verdict; that the trial court is without power to entertain a Rule 3.590 motion in arrest of judgment thereafter; that absent a timely motion in this case, the appeal time began upon rendition of the judgment and sentence; and that this appeal must be dismissed.

Pittman was found guilty of extortion by a jury verdict on March 29, 1977, and without intervening motions he was adjudged guilty and placed on probation on May 20. On June 2, 13 days after adjudication and 65 days after the verdict, Pittman filed a motion for new trial, which the trial court denied as untimely, ¹ and a motion in arrest of judgment, which the trial court entertained and denied on the merits in November, 1978, some 17 months later. Pittman appealed within 30 days thereafter.

Pittman urges that his motion in arrest of judgment is addressed to a fundamental deficiency in the prosecution, the utter failure of the information to charge an offense; and that, consequently, his motion was not directed to the jury verdict or to trial proceedings culminating in that verdict, but rather was properly addressed to the judicial act which made those proceedings effective, i. e., the judgment and probationary sentence. On that premise Pittman urges that the judgment of guilt was "the finding of the court" within the meaning of Rule 3.590, which provides in part:

(a) A motion for new trial or in arrest of judgment, or both, may be made within four days, or such greater time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or the finding of the court.

To sustain Pittman's position would legitimize post-judgment motion practice in a large class of criminal cases tried to juries, if not in all, and would render the appealability of judgments indiscernible for 15 days after rendition, when the opportunity to file a Pittman-like motion in arrest of judgment by leave of court shall have passed.

Those troublesome ramifications aside, Pittman's interpretation of Rule 3.590 insufficiently takes account of history. Despite functional differences between motions for new trial and motions in arrest of judgment the one being addressed to regularity of the trial and the efficacy of the verdict, ² the other to defects apparent on the face of the indictment or information, or the verdict ³ those motions are linked procedurally by Rule 3.590, as they were for years before 1939, when motions in arrest of criminal judgments were temporarily dispensed with. Chapter 19554, Section 239 (Florida Laws (1939); Section 920.02, Florida Statutes (1941). Until then, at least since 1892, motions in arrest of criminal judgments and motions for new trial were to be filed "in the time and manner prescribed for similar motions in civil cases," which was within a prescribed specified time after the verdict. Sections 1180, 1181, 2936, Revised Statutes (1892); Sections 1608, 1609, 4005, General Statutes (1906); Sections 2811, 2813, 6108, Revised General Statutes (1920); Sections 4497, 4500, 8413, Compiled General Laws (1927). In 1967, by a rule in language carried down to now, the Supreme Court revived the motion in arrest of judgment in criminal cases and relinked its filing with motion for new trial. Fla.R.Crim.P. 1.590, 1.610; In re Florida Rules of Criminal Procedure, 196 So.2d 124, 164-65 (Fla.1967)....