Recht v. State, 75--984
| Decision Date | 25 March 1977 |
| Docket Number | No. 75--984,75--984 |
| Citation | 344 So.2d 885 |
| Parties | Gary Albert RECHT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Margarita Esquiroz, Asst. Atty. Gen., and Gary S. Rackear, Legal Intern, Miami, for appellee.
Appellant, Gary Albert Recht, was charged by an amended information with delivery of methylenedioxyamphetamine, a hallucinogenic drug commonly called MDA. Appellant entered a plea of nolo contendere to the charge. The trial court, withheld adjudication of guilt, suspended the imposition of sentence, and placed the appellant on probation. Subsequently, on April 28, 1975, an order was entered revoking probation. Also entered on April 28, 1975 was a judgment of adjudication of guilt with the imposition of a sentence. On May 22, 1975 a notice of appeal from the order revoking probation was filed. No appeal was taken from the entry of the judgment of guilty and imposition of sentence.
On appeal appellant attacks the judgment and sentence from which no appeal was taken and over which, by lack thereof, we have no jurisdiction. Therefore, no error having been demonstrated by appellant as to the order revoking probation, we affirm.
Affirmed.
Unquestionably the appellant erred in failing to designate the judgment and sentence of April 28, 1975, in his notice of appeal. However, it is quite clear from the record that appellant intended all along to have the judgment and sentence of April 28, 1975, reviewed, together with the order of April 28, 1975, revocating probation which was designated in the notice of appeal.
In State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967), the Supreme Court set out the significant factors for an Appellate Court to consider in determining whether a notice of appeal is adequate to vest jurisdiction in the appellate court where the notice erroneously designates the order appealed from. Those factors are:
'. . . (P)roper identification of the litigation in the notice, a clear intent to prosecute an effective appeal, specification of errors reviewable only upon appeal from the final judgment, presentation of a record sustaining such an appeal, and the absence of any record basis for genuine prejudice as a result of the defective notice.'
This resolution of the problem has...
To continue reading
Request your trial
-
Aaron v. State, 79-1581
...(Fla.1977); State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967); Robbins v. Cipes, 181 So.2d 521 (Fla.1966). Contra, Recht v. State, 344 So.2d 885 (Fla.4th DCA 1977), but see, Byrd v. State, 353 So.2d 1228 (Fla.4th DCA 1978) (not following Recht "since the error arose from state Following ......
-
Byrd v. State, 76-2134
...the appeal because Appellant appealed only from the Judgment and not the Order placing the Defendant on probation. Recht v. State, 344 So.2d 885 (Fla. 4th DCA 1977). Since the error arose as a result of state action, as so many things nowadays seem to do, we shall assume jurisdiction as the......