State v. Smith
| Decision Date | 01 March 1990 |
| Docket Number | No. 89-568,89-568 |
| Citation | 557 So.2d 904 |
| Parties | 15 Fla. L. Weekly D566 STATE of Florida, Appellant, v. Roosevelt SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., for appellant.
Michael E. Allen, Public Defender, David P. Gauldin, Asst. Public Defender, for appellee.
In its Notice of Appeal, the state asserts that it is appealing a final order of the trial court rendered February 17, 1989 granting the defendant's Motion to Arrest Judgment on Count II of the Information. The record contains neither a written motion to arrest judgment nor a written order on such a motion. It is apparent from a review of the record in this case that what the state is in fact appealing is an oral order of the trial court granting the defendant's Motion to Dismiss Count II of the Information. This oral order was announced by the trial judge at a post-trial hearing on the defendant's Motion for New Trial, which was subsequently denied by written order. The defendant's motion to dismiss was filed before the trial of the case and had originally been denied by written order.
This court lacks jurisdiction to review oral orders of the trial court, where such orders have not been reduced to writing. Fla.R.App.P. 9.020(g) and 9.110(b); Rivera v. Dade County, 485 So.2d 17 (Fla. 3rd DCA 1986); Phillips v. Albertson's Inc., 472 So.2d 513 (Fla. 2nd DCA 1985); Prado-Gonzalez v. State, 468 So.2d 991 (Fla. 4th DCA 1984). Furthermore, even if this subsequent order granting the defendant's motion to dismiss had been in writing, we would still lack jurisdiction over the state's appeal. Orders granting motions are not final and therefore not appealable. Johnson v. First City Bank of Gainesville, 491 So.2d 1217 (Fla. 1st DCA 1986); Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3rd DCA 1980); Guth v. Howard, 362 So.2d 725 (Fla. 2nd DCA 1978).
Because we do not have jurisdiction, we cannot remand this case to the trial court with directions to enter a written order of dismissal, thereby allowing the state to proceed under Florida Rule of Appellate Procedure 9.140(c)(1) A. As this court previously stated in Johnson, supra:
[W]e are not inclined to encourage the trial bench and bar in practices which result in the appeal of such nonappealable orders by accommodating the parties as our sister court has done in Gries. In our view, although the appellate court has the inherent power to determine if it has jurisdiction over a particular appeal, once it has determined that it does not have jurisdiction, the appellate court may not "relinquish" this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate court with jurisdiction to hear the appeal.
491 So.2d at 1218; see also Chapman v. Universal Underwriters Insurance Company, 549 So.2d 679 (Fla. 1st DCA 1989); Arcangeli v. Albertson's, Inc., 550 So.2d 557 (Fla. 5th DCA 198...
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Yost v. American Nat. Bank
...leave to amend. This second appeal is dismissed, because it was taken from a non-final, non-appealable order. See State v. Smith, 557 So.2d 904 (Fla. 1st DCA 1990); Chapman v. Universal Underwriters Insurance Company, 549 So.2d 679, 680 (Fla. 1st DCA 1989); Johnson v. First City Bank of Gai......
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Warren v. State, 96-0817
...although cross-appeals would have been permitted. See, e.g., State v. McAdams, 559 So.2d 601 (Fla. 5th DCA 1990); State v. Smith, 557 So.2d 904 (Fla. 1st DCA 1990). This court reversed and remanded for resentencing, which occurred in 1994. See State v. Warren, 629 So.2d 1014 (Fla. 4th DCA 1......
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Owens v. State
...threshold requirement for an appeal cannot be met because without the written signed order there is nothing to appeal. State v. Smith, 557 So.2d 904 (Fla. 1st DCA 1990); State v. Phillips, 507 So.2d 1170 (Fla. 1st DCA 1987); Rivera v. State, 485 So.2d 17 (Fla. 3d DCA 1986); Belmont v. State......
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State v. Feagle, 90-946
...Thus, in our opinion the state is correct that Diamond holds such an order is a final order. 2 Language in State v. Smith, 557 So.2d 904 (Fla. 1st DCA 1990) which suggests a contrary result is dicta. We are bound to follow Diamond. 3 Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973). We cauti......