State ex rel. Ervin v. Smith, 32843

• Decision Date: 10 January 1964
• Docket Number: No. 32843,32843
• Citation: 160 So.2d 518
• Parties: STATE of Florida ex rel Richard w. ERVIN, Attorney General, Relator, v. Sherman N. SMITH, Jr., as Chief Judge, and A. O. Kanner, William P. Allen, George T. Shannon, and Jack F. White, as Judges, of the District Court of Appeal, Second District, State of Florida, Respondents.
• Court: Florida Supreme Court

Page 518

160 So.2d 518

STATE of Florida ex rel Richard w. ERVIN, Attorney General, Relator, v. Sherman N. SMITH, Jr., as Chief Judge, and A. O. Kanner, William P. Allen, George T. Shannon, and Jack F. White, as Judges, of the District Court of Appeal, Second District, State of Florida, Respondents.

No. 32843.

Supreme Court of Florida.

Jan. 10, 1964.

Petition for Modification Denied Feb. 12, 1964.

Richard W. Ervin, Atty. Gen., James W. Kynes, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for relator.

No appearance for respondents.

Robert Luther Hooper, in pro. per.

THORNAL, Justice.

By an original proceeding in prohibition the relator seeks a rule absolute to prevent the respondents from assuming jurisdiction of an appeal in a criminal case.

We must decide whether the timely filing of a notice of appeal is an absolute appellate jurisdictional prerequisite.

On February 20, 1962, Robert L. Hooper was adjudged guilty of the crime of robbery. He was sentenced to a term in the State penitentiary. On May 22, 1962, 91 days after the conviction and sentence, a notice of appeal by Hooper, was received The Attorney General has now instituted this original prohibition proceeding to prevent the District Court from exercising jurisdiction. It is contended here that the timely filing of the notice of appeal is an essential jurisdictional prerequsite. The relator contends that the respondents are without jurisdiction to proceed.

through the mail and filed by the Clerk of the Trial Court. The notice was dated May 14, 1962. A copy of the notice was subsequently transmitted to the District Court of Appeal, Second District. The State, through the Attorney General, moved to dismiss the appeal as having been filed too late. On July 18, 1962, the District Court of Appeal granted the motion and dismissed Hooper's appeal. On September 7, 1962, Hooper petitioned this Court for a writ of certiorari to review the order of dismissal. The petition was dismissed by us, Hooper v. State, Fla., 152 So.2d 171. On June 17, 1963, Hooper's petition for writ of certiorari addressed to the Supreme Court of the United States was denied by that Court. 374 U.S. 847, 83 S.Ct. 1907, 10 L.Ed.2d 1067. In the meantime, on June 3, 1963, the District Court of Appeal sua sponte vacated its order of dismissal. It thereby reinstated Hooper's appeal which he had undertaken to institute by the notice filed on May 22, 1962. The District Court of Appeal has indicated its intention to proceed to consider the appeal on its merits.

By their return to the rule nisi, the respondents suggest that their jurisdiction attached when Hooper, while incarcerated in the State prison, delivered his notice of appeal to a prison official for mailing with ample time for it to have reached the Clerk of the Trial Court. The respondents assert that the delay in delivery of the vital notice was occasioned by the neglect or oversight of the State's prison officials. Other factors are advanced but the crux of respondents' position simply is that the State should not be permitted to prevent the hearing of an appeal attempted by a State prisoner when delay in the filing of his notice was occasioned by the requirements of prison rules and the neglect or oversight of a prison official.

We have consistently held that the timely filing of the notice of appeal is a jurisdictional prerequisite to an appellate court's power to act. One who has been convicted in a trial court is entitled to have his conviction reviewed. Nevertheless, he is required to proceed in an orderly fashion in accordance with applicable statutes and rules. Sullivan v. Mayo, Fla., 121 So.2d 424. Although the law recognizes a right to appeal, this does not preclude the State from prescribing reasonable prerequisites to the exercise of the right. Customarily a time limitation is placed on the right to appeal. In Florida criminal cases this right must be exercised within 90 days from the time of judgment or sentence. Section 924.09, Florida Statutes, F.S.A.; Rule 6.2 F.A.R., 31 F.S.A. This is subject to the provisions of Rule 3.18 F.A.R. The appeal is initiated by the filing of the notice of appeal in the trial court within the prescribed 90 day period. This is an absolute essential jurisdictional requirement. If the requirement is not met the appellate court simply has no jurisdiction--no power--to act. Purdy v. State, 150 Fla. 172, 7 So.2d 109; Newsom v. State, Fla., 54 So.2d 58; Bell v. State, 154 Fla. 505, 18 So.2d 361; Lee v. State, 128 Fla. 319, 174 So. 589; Donin v. Goss, Fla., 69 So.2d 316.

Respondents, however, suggest that the restriction of the rule should be lifted in this instance. This is so, they assert, because the convicted man here was not responsible for the delay. The notice of appeal was not filed in time because of the neglect or refusal of the State prison officials to mail the notice within a reasonable time after the convict placed it in a State prison receptacle for outgoing mail. We interpolate that the record here merely reflects the claim of the prisoner that there was undue delay by the prison officials in posting his letter. We do not have available a judicial finding in this respect because no evidence has even been taken on the Admittedly, our sense of justice is challenged by the claim of a prisoner who has been...