Williams v. State

• Decision Date: 03 December 1975
• Docket Number: No. 46035,46035
• Citation: 324 So.2d 74
• Parties: Clifford WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 74

324 So.2d 74

Clifford WILLIAMS, Petitioner, v.STATE of Florida, Respondent.

No. 46035.

Supreme Court of Florida.

Dec. 3, 1975.

F. Malcolm Cunningham, West Palm Beach, for petitioner.

Robert L. Shevin, Atty. Gen., and Frank B. Kessler, Asst. Atty. Gen., for respondent.

PER CURIAM.

This cause is before the Court on a petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in Williams v. State, 297 So.2d 655(Fla.App.4th1974).We have jurisdiction pursuant to Fla.Const., Article V, Sec. 3(b)(3), F.S.A.

The petitioner was found guilty by a jury of violating State gambling statutes on August 13, 1973.On August 24, 1973, in open court, the trial judge denied the petitioner's motion for new trial or, in the alternative, for arrest of judgment; sentenced him to serve 18 months, and pursuant to Florida Rule of Criminal Procedure, Rule 3.670, advised the petitioner of his right to appeal and that he had 30 days to exercise same.A supersedeas bond in the amount of $10,000 was set in the event notice of the appeal was filed.The court then adjourned and later that day the trial judge in his chambers signed the written judgment and sentence.Notice of appeal was filed that same day (August 24th), but the filing fee was not paid until August 31st.Even though the written judgment was signed on August 24th, it was not filed for recording, and thus rendered, until August 28th.The State moved to dismiss the appeal alleging that the District Court did not have jurisdiction thereof since the notice of appeal was filed four days prior to the time judgment was rendered.The Fourth District Court granted the motion and this Court granted certiorari.

There are two issues before the Court.The first is whether or not the payment of the filing fee is jurisdictional.This Court in State ex rel. Dedmon v. Carroll, 151 So.2d 5, 7(Fla.1963)(dicta) observed that Florida AppellateRule 3.2(d)'. . . clearly provides that jurisdiction is accomplished by the filing of the notice of appeal in the trial court and payment of the required fee.'

Six years later in City of Gainesville v. Thomas, 229 So.2d 833(Fla.1969), Aff'g., 220 So.2d 644(Fla.App.1st1969), we receded from this observation by holding that:

'While timely filing of notice of appeal is jurisdictional, the timely deposit of the required filing fee is not.We do not mean to imply by this that the deposit of the fee is not mandatory for we are of the opinion that it is.However, in circumstances where the clerk of the appropriate court is satisfied to accept a notice of appeal without simultaneously collecting the filing fee, then the subsequent deposit of the fee after the running of the appeal time limit will not affect the jurisdiction of the appellate court.'(Emphasis supplied)

Our decision in City of Gainesville v. Thomassupra, was correctly applied to criminal cases by the Fourth District Court in Papp v. State, 249 So.2d 82(Fla.App.4th1971).

Subsequent to our decision in City of Gainesville v. Thomas, supra, three district courts of appeal opined that the timely filing of the notice of appeal alone is jurisdictional.This was so held without any reference to the discretionary power of the clerks to accept or reject the notice of appeal if the filing fee is not simultaneously paid or the adjudication of insolvency not simultaneously filed.State v. Sexton, 283 So.2d 578(Fla.App.2d1973);Evans v. State, 255 So.2d 711(Fla.App.1st1971);Papp v. State, supra.Prior to our decision in City of Gainesville v. Thomas, supra, the First District Court adopted this view.State ex rel. Moore v. Murphree, 106 So.2d 430(Fla.App.1st1958);State ex rel. Moore v. Murphree, supra, in turn was relied upon by the First District Court in Thomas v. City of Gainesville, 220 So.2d 644(Fla.App.1st1969), wherein it held likewise.At that period in time the Murphree and Thomas decisions were in direct conflict with the Second District Court's decisions in Woolley v. State, 193 So.2d 706(Fla.App.2d1966)andClark v. State, 191 So.2d 870(Fla.App.2d1966).Our decision in City of Gainesville v. Thomas, supra, was a compromise between these two diametrically opposing views.Regrettably, the passage of time has shown us that this compromise (vesting the clerks with discretionary power) has not accomplished its intended purpose.In retrospect, we can see that the clerks should not be burdened with a decision which requires the exercise of judicial power.Thus, we now recede from our decision in Thomas v. City of Gainesville, supra, as to the discretionary power vested in the clerks to either accept or reject a notice of appeal absent the simultaneous payment of the requisite filing fee or the filing of an adjudication of insolvency.Henceforth, the notice of appeal timely filed without simultaneous payment of the filing fee or the filing of an adjudication of insolvency shall act to vest jurisdiction in the respective appellate court.Consequently, our holding in City of Gainesville v. Thomas, supra, at 833, is modified as follows:

'While timely filing of notice of appeal is jurisdictional, the timely deposit of the required filing fee (or adjudication of insolvency) is not.We do not mean to imply by this that the deposit of the fee (or adjudication of insolvency) is not mandatory for we are of the opinion that it is.The subsequent deposit of the fee after the running of the appeal time limit will not affect the jurisdiction of the appellate court.'(Explanation added)

The sanction for the refusal, or inexcusable negligence of the appellant in ultimately paying the required filing fee or filing the insolvency adjudication lies within the discretion of the appellate court.Accordingly, an appellate court may, after reasonable notice to the appellant, dismiss the appeal.

Our adoption of this position is in accord with the liberal interpretation which is to be accorded procedural rules.We also note that the Federal courts follow the rule that the filing of the notice of appeal alone is jurisdictional.Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867(1955).

Having modified our holding in City of Gainesville v. Thomas, supra, we find it necessary to overrule the decisions of the Second District Court in Woolley and Clark, supra, and expressly state our approval of the First District Court's decisions in Thomas v. City of Gainesville, ¹supra, andState ex rel. Moore v. Murphree, supra, as to the issue treated herein.

The second issue before us once again raises the question of when the time for appeal commences.Herein, the petitioner filed his notice of appeal after the written judgment was signed, but before it was rendered.From the briefs filed in this cause, it is apparent that the terms 'rendered' and 'entered' as employed in the appellate rules still engender confusion as to exactly when the appeal period commences.

Both words are used in the appellate rules.For example, Florida AppellateRule 3.2(b) provides that:

'Appeals from final decisions, orders, judgments or decrees shall be commenced within 30 days from the Rendition of the final decision, order, judgment or decree appealed from, . . ..'(Emphasis supplied)

However, Florida Appellate Rule 6.2 provides that:

'Any appeal by the defendant from the judgment or sentence shall be taken within 30 days after the sentence is Entered, provided that the defendant may take an appeal from the judgment within 30 days after the judgment is Entered.'(Emphasis supplied)

That the use of the above emphasized two different words for the same purpose in the rules has caused confusion is understandable since their common law definitions are contrary to those accorded them by this Court.

At early common law, both possessed separate and distinct meanings.'To render judgment' meant that the court had pronounced, stated or declared the judgment of the court in a given case; whereas, 'To enter--or to record judgment' meant the clerk's ministerial act in spreading the judgment rendered upon the court's official records.Black's Law Dictionary, 1460 (Rev.4th ed. 1968).Viewed within the confines of these two different definitions the above two rules are in direct conflict with one another.However, this Court's adoption of Florida Appellate Rule 1.3(Rendition) harmonized these two definitions by making them synonymous.The rule states in pertinent part that the:

'Rendition of a judgment, decision, order or Decree means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed.A paper is deemed to be recorded when filed with the clerk and assigned a book and a page number.'(Emphasis supplied)

This definitional harmonization was reaffirmed by this Court in State ex rel. Faircloth v. Cross, 238 So.2d 81(Fla.1970).Therein, Mr. Justice Adkins, for the Court, held that the term 'rendition' as used in Florida Appellate Rule 1.3, and the term 'entered' in Rule 6.2 were synonymous.The Court also held that the meaning of 'rendered' as used in Florida Rule of Criminal Procedure, Rule 3.670(formerly 1.670), is in accord with the two above rules.

In State ex rel. Faircloth v. Cross, supra, the Court was faced with the situation where the defendant filed his notice of appeal from oral judgments of guilt 15 days before the written judgments were rendered, and thereafter filed a motion for a new trial.In such a case, a judgment is not deemed rendered (even though filed for recording) until such post-trial motions are disposed of.

Any question as to whether this synonym was to apply equally to both criminal as well as civil appeals was settled...