Southeast First Nat. Bank of Miami v. Herin
Decision Date | 05 April 1978 |
Docket Number | No. 51316,51316 |
Citation | 357 So.2d 716 |
Court | Florida Supreme Court |
Parties | SOUTHEAST FIRST NATIONAL BANK OF MIAMI, a National Banking Association, and Southeast Services, Inc., a Florida Corporation, Petitioners, v. The Honorable William A. HERIN, as Circuit Judge of the Eleventh Judicial Circuit for the State of Florida, Respondent. |
Joseph P. Klock, Jr., of Steel, Hector & Davis, Miami, for petitioners.
Stuart Simon, Dade County Atty., Miami, and Murray A. Greenberg, Asst. County Atty., Miami, for respondent.
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The sole question presented on this appeal is whether the failure to file a notice of appeal from a county court judgment in the office of the clerk of the circuit and county court in a timely fashion deprives the circuit court of appellate jurisdiction where the notice of appeal was filed in an otherwise timely fashion but in the district court of appeal.
This question is answered in the affirmative by the decision of this Court in State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla.1958), and the decision of the First District Court of Appeal in In re Estate of Hatcher, 270 So.2d 45 (Fla. 1st DCA 1972).
Respondents argue that Diamond Berk and Hatcher are not controlling because Fla.App. Rule 2.1(a)(5)(d) 1 was neither referred to nor discussed in either of the opinions and that inasmuch as Court rules take precedence over decisional law, the rule should govern, and that a notice of appeal, if filed within the 30-day period in the appellate court and later transferred in the trial court, confers jurisdiction on the appellate court. We do not agree.
The obvious reason that the rule was not discussed or mentioned in Diamond Berk was that it was not applicable. This rule was designed to permit the transfer of cases where the appeal is taken to the wrong appellate court. For instance, where an appeal in a bond validation proceeding is taken to the District Court of Appeal instead of to the Supreme Court, 2 or where an appeal in a case where the death penalty has been imposed is taken to the District Court instead of the Supreme Court, or where an appeal where life imprisonment has been imposed is taken to this Court instead of the District Court. 3 There are also instances where jurisdiction depends on whether the trial court directly passed on the validity or constitutionality of a statute. Where it is determined that the jurisdiction of the wrong court has been invoked, the rule, and the constitution, as amended, provide for such transfer. 4 The necessity for such a rule was the result of the creation of the District Courts of Appeal in Revised Article V of the Florida Constitution in 1957, and the proscribed jurisdiction of the courts of the appellate system in the constitution. Diamond Berk was written in 1958, shortly after such revision and at a time when the various provisions of the rules, and constitution, and the purposes behind them were fresh in the Court's mind. In Diamond Berk, Mr. Justice Thornal, writing for the Court, said:
"Our conclusion turns on the question as to whether the original filing of a notice of appeal in the appellate court, as distinguished from the filing of such notice in the trial court, confers jurisdiction upon the appellate court." At 129.
Then, proceeding with a discussion of the facts, it is said:
At 130.
The clear and explicit holding of the Court was:
In Hatcher, supra, decided some 14 years later, on the identical point, the First District Court held:
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Johnson v. Citizens State Bank
...relied upon Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978), which in turn relied upon Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla.1978). To the extent of conflict with our decision today, we recede from Lampkin-Asam and Southeast First National Ba......
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Alfonso v. Department of Environmental Regulation
...the appeal as untimely. In approving the district court's dismissal, this Court relied on the rationale in Southeast First National Bank v. Herin, 357 So.2d 716 (Fla.1978). In Southeast First National Bank, this Court stated that the rule of appellate procedure that required a transfer of c......
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Skinner v. Skinner
...such filing was untimely and as a result the district court dismissed the appeal. On appeal, relying upon Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla.1978), receded from, Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989), this Court agreed and held that the unt......
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Franchi v. Florida Dept. of Commerce, Division of Employment Sec., Bd. of Review, 78-1775
...cases where appeal is taken to the wrong appellate court, did not alter the result reached by that court in Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla.1978) and that the failure to file a timely notice of appeal in the lower tribunal deprives the appellate court of ......