Sands v. State
| Decision Date | 29 September 1967 |
| Docket Number | No. 7332,7332 |
| Parties | M. C. SANDS, a/k/a Willie Samuel, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
M. C. Sands, in pro. per., and Walter R. Talley, Public Defender, and William H. Namack, III, Asst. Public Defender, Bradenton, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
Appellant M. C. Sands pleaded guilty to uttering a forged instrument and was convicted thereof on March 2, 1966. On August 8, 1966, after pre-sentence investigation, he was sentenced to 39 months in prison. On the same day he filed a handwritten 'petition and motion to vacate or defer (sic) judgment, and release from custody until reconsideration and final (d)isposition of said case,' alleging denial in general of his constitutional rights and the court's failure to ask him, pursuant to the requirements of Fla.Stat., Sec. 921.07, F.S.A., whether he had any cause to show why sentence should not be pronounced. His motion was denied on August 11, 1966, an on August 26, 1966, he filed a handwritten notice of appeal.
Appellant's notice of appeal does not state with certainty what is being appealed. The pertinent portion of it reads as follows:
'Notice is hereby given that a motion on appeal has been made to the District Court of Appeal, Second District, in Lakeland, Florida, to vacate and set aside the judgment and sentence entered and imposed against the above named Defendant-Appellant by the above named Circuit Court of Lee County, Florida, on the 8th day of August, 1966.'
This could be construed as intending to appeal either the judgment and sentence or the order denying the post-conviction motion, if said motion is regarded as having been made pursuant to Fla.R.Crim.P. 1, F.S.A. ch. 924 Appendix.
On September 9, 1966, the court below entered an order determining that the cause presented to it by appellant's motion to vacate had not been a proceeding under Fla.R.Crim.P. 1, rather that it had been simply a motion as entitled. By this order the court was presumably indicating that it had interpreted appellant's motion to be in the nature of one for rehearing, the interpretation most favorable to appellant as far as his possible future remedies are concerned. We adopt this interpretation and, accordingly, regard this appeal as being from the judgment and sentence rather than from an order denying a motion made pursuant to Fla.R.Crim.P. 1.
By failing to state with certainty what was being appealed, the notice of appeal failed to comply with the requirements of Fla.App.R. 3.2(c), 32 F.S.A. in effect at the time. By virtue of the same rule, however, such a deficiency is not a jurisdictional defect. Thus this court is not precluded from asserting jurisdiction in this cause.
Appellant's assertions of error,...
To continue reading
Request your trial
-
Van Scyoc v. State
...for appellee. Before PEARSON, HENDRY and BARKDULL, JJ. PER CURIAM. Affirmed. Gordon v. State, 104 So.2d 524 (Fla.1958); Sands v. State, 202 So.2d 141 (Fla. 2d DCA 1967); State v. Davis, 203 So.2d 160 (Fla.1967); State v. Jones, 204 So.2d 515 (Fla.1967); DeRiggi v. State, 209 So.2d 714 (Fla.......
-
Kincaid v. State
...defects and irregularities not jurisdictional and is itself a conviction. Thomas v. State, Fla.App.1967, 201 So.2d 834; Sands v. State, Fla.App.1967, 202 So.2d 141; Hines v. State, Fla.App.1967, 195 So.2d 605. The record on appeal recites that on April 3, 1967 the defendant was arraigned an......
-
Rolax v. State, 87-652
...a timely notice of appeal, the failure to state with certainty what is being appealed is not a jurisdictional defect. Sands v. State, 202 So.2d 141 (Fla. 2d DCA 1967). A notice of appeal generally will be considered legally sufficient if it gives the appellate court and the adverse party su......
-
Rice v. State
...point was properly raised by assignment of error and factually supported by the record, it would not be fundamental error, Sands v. State, Fla.App.1967, 202 So.2d 141, and in the absence of some indication in the record that a proper cause did exist for the court not to pronounce sentence, ......