OTHA FAVORS AND SHARON CLINKENBEARD FAVORS, APPELLANTS,
v.
CITY OF TAMPA, APPELLEE
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The court held that the dismissal of an appeal from municipal court was improper due to the municipal court clerk's failure to transmit the record, despite the appellate court's initial dismissal based on late filing.
Appellants appealed their municipal court convictions to the circuit court. The circuit court dismissed their appeal for failure to timely file the re…
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This appeal was improvidently taken from Hillsborough County Circuit Court granting a motion to dismiss an appeal taken by Otha Favors and Sharon Clinkenbeard Favors from their convictions in municipal court. This court, pursuant to Section 59.45, Florida Statutes, F.S.A., which is applicable to District Courts of Appeal of Florida,1 regards the *173notice of appeal and the record herein as a petition for certiorari duly presented to this court.
Respondent’s Motion to Dismiss was granted since the record-on-appeal was not timely filed with the Circuit Court as per Section 932.52(11) (15), Florida Statutes, F.S.A. and Florida Appellate Rule 3.6, 32 F.S.A. However, we find that the real fault lies with the municipal court clerk since he failed to transmit the record-on-appeal as required by Section 932.52 (10), Florida Statutes, F.S.A. once petitioners, appellants below, had complied with the provisions of Section 932.52(3), Florida Statutes, F.S.A. in perfecting their appeal.
The writ is granted and the Order of Dismissal is quashed. This cause is therefore remanded for further consideration.
PIERCE, C. J., and LILES and HOB-SON, JJ., concur.
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Gettles v. Commercial Bank AT Winter Park, 276 So. 2d 837 (Fla. 4th DCA 1973)…a lower court order in a common law action. Shearson, Hammill & Co. v. Vouis, Fla.App.1971, 247 So. 2d 733. Pursuant to F.S. Section 59.-45, F.S.A., the notice of appeal is treated as a petition for certiorari. Favors v. City of Tampa, Fla.App.1971, 246 So. 2d 172; see also Home News Publishing Co. v. U-M Publishing, Inc., Fla.App.1971, 246 So. 2d 117. . Our decision is predicated upon the rationale in Ojus and Bradford, supra, as applied to the circumstances of this case. It is therefore unnecessary to cons…
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Belint Papp v. State, 249 So. 2d 82 (Fla. 4th DCA 1971)…er of dismissal on February 11 was premature. Under either circumstance we are of the opinion that the essential jurisdictional step was taken within the proper time, to wit, the filing of the notice of appeal, Favors v. City of Tampa, Fla.App.1971, 246 So. 2d 172, the real fault lying with the clerk rather than with appellant. Additionally, as heretofore noted, appellant was granted an extension until March 23 for the filing of the transcript. It might be well to observe in passing that the State has made n…
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Marrs v. State of Fla. & the Cir. Court of Pinellas Cnty., 382 So. 2d 43 (Fla. 2d DCA 1979)…t the appeal was frivolous. Assuming, arguendo, that this is good law in Florida, there was no finding of frivolity in this case. Although not cited by either party to this appeal, there is one analogous certiorari case. In Favors v. City of Tampa, 246 So. 2d 172 (Fla. 2d DCA 1971), this court granted certiorari and quashed an order of a circuit court sitting in its appellate capacity dismissing an appeal because the record was not timely filed. In that case, it was found that the record was not filed due to…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ludwig v. Cochran, 114 So. 2d 484 (Fla. 1st DCA 1959)