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326 So. 2d 175

Docket No. 47028.

State v. Wells

STATE of Florida, Petitioner, v. Donald Roy WELLS, Respondent.

Supreme Court of Florida

Decided January 14, 1976.

Rehearing Denied February 25, 1976.

Supreme Court of Florida · decided 1976-01-14

Key passage — most relied on by later courts

“"Leaving aside the question of obtaining supersedeas bond, we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court."”

quoted by 1 later decision, including 382 So. 2d 1323 - WBD, INC. v. Howard Johnson Co.

Relies on Williams v. State · Division of Bond Finance of the Department of General Services v. Rainey · 307 So. 2d 829 - Mullin v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1976-01-14

How this case has been cited

Cited by 9 later decisions — most recently January 1990

9 state decisions

50197619801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.

¶2John Paul Howard, Jacksonville, for respondent.

¶3HATCHETT, Justice.

¶4Respondent Wells was arrested on May 15, 1973, during the execution of a search warrant issued earlier the same day, all in connection with the alleged receipt and concealment of certain stolen property. The trial judge granted defense motion to require disclosure of confidential informer by order entered October 15, 1973. At a hearing on November 2, 1973, this colloquy transpired:

THE COURT: ... Let me ask you, at this time do you intend to d[i]vulge the name of the confidential informant?
*176 MR. EPSTEIN (the prosecutor):
No, Your Honor, it is the position of the state that we are not going to d[i]vulge it.
THE COURT: All right. Charges will be dismissed against Donald Roy Wells.

¶5The prosecution filed notice of appeal on November 9, 1973, "to review the order of the Circuit Court ... bearing date the 2nd day of November, 1973", and directed the clerk to include in the record on appeal the "court's order dismissing the information, dated November 2, 1973." There is no such written order in the record, although the trial court clerk has certified that the record contains "all ... papers ... as appears from the records and files of [his] office that have been directed to be included... ." We are bound to conclude, therefore, that no written order of dismissal was entered.

¶6The District Court of Appeal, First District, upheld the trial court's dismissal in its decision reported at 308 So.2d 163, and denied petition for rehearing. The attorney general's office then filed here a petition for writ of certiorari which we granted without oral argument on June 25, 1975, Mr. Justice Overton dissenting. We now dismiss the petition for writ of certiorari as improvidently granted.

¶7No order or judgment of a trial court is appealable until reduced to writing[*] and filed with the trial court clerk. State ex rel. Faircloth v. Cross, 238 So.2d 81 (Fla. 1970); Jenkins v. Lyles, 223 So.2d 740 (Fla. 1969); State v. Breeze, 300 So.2d 729 (Fla.App., 2d Dist. 1974); State v. Law, 297 So.2d 347 (Fla.2d Dist. 1974). Treating the papers on which the appeal was taken as a petition for writ of certiorari, the District Court nonetheless lacked jurisdiction in "the absence of a written order". State v. Simpson, 313 So.2d 470 (Fla.App., 4th Dist. 1975). Furthermore, any possibility of review is by now moot, inasmuch as more than two years have elapsed since the respondent was taken into custody and no application for an order extending time for trial was made, as required by Rule 3.191(d)(2)(iv), RCrP. See Mullin v. State, Fla.App., 307 So.2d 829 cert. denied sub nom. State v. Mullin, Fla., 317 So.2d 761 (1975); State v. Wilson, 305 So.2d 232 (Fla.App., 3d Dist. 1974); State v. Williams, 287 So.2d 415 (Fla.App., 2d Dist. 1973); Esperti v. State, 276 So.2d 58, 64 (Fla.App., 2d Dist. 1973).

¶8The petition for writ of certiorari is dismissed.

¶9ROBERTS and BOYD, JJ., concur.

¶10ADKINS, C.J., and OVERTON and ENGLAND, JJ., concur in result only.

NOTES

¶11[*] In Williams v. State, Fla., 324 So.2d 74 (1975), we held that notice of appeal filed by a criminal defendant after judgment and sentence were reduced to writing, but before those documents were filed in the clerk's office, "shall exist in a state of limbo until the judgment ... is rendered." Upon rendition of judgment, the notice of appeal becomes efficacious to confer jurisdiction on the appellate court. The Williams holding was justified on the basis that "the petitioner was placed in an untenable position since the judgment conditioned the grant of supersedeas bond upon the filing of the notice of appeal." Filing of notice of appeal is always a pre-requisite for bail pending appeal when there is a criminal conviction, Rule 6.15(a), Florida Appellate Rules, 1962 Revision, and the result in the Williams case evinces an unwillingness to allow a man's freedom to depend on the fortuity of when papers happen to be filed in the clerk's office. Although the decision in Williams v. State, supra, would have been fully supported on just such narrow grounds, expansive obiter dicta indicate that the doctrine there announced may well find broader application. However widely applied, though, the new rule does not reach the present case, because here the order sought to be reviewed has never been reduced to writing.

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