KENNETH HEMMERLE, APPELLANT,
v.
CITY OF WILTON MANORS, APPELLEE
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Hemmerle, convicted of a traffic violation in municipal court, appealed to circuit court but the circuit court dismissed his appeal for failure to perfect the record. The District Court of Appeal affirmed the dismissal, holding that an appellant must provide either a transcript or original documents from the trial court to constitute an adequate appellate record, regardless of statutory provisions suggesting otherwise.
An appellant must provide either a transcript of the trial proceedings or the original documents from the trial court to constitute a proper record on appeal. Statutory provisions purporting to eliminate the transcript requirement have been superseded by Florida Appellate Rule 6 (and Rule 6.1 for municipal court appeals), and neither stipulations, briefs, nor recitals in an order on appeal alone satisfy the requirement to provide a record.
[1] An appellate court may dismiss an appeal on its own motion if the appeal is not properly prosecuted.
[2] Failure to furnish an adequate record on appeal is a proper basis for dismissal of the appeal by the appellate court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The entire sense of the statute, however, is that where a 'transcript' is not furnished the original documents must be furnished to constitute the record on appeal.”
Establishes that statutory provisions allowing omission of transcripts do not eliminate the requirement to provide some form of record.
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Join FLexlaw to unlock all legal intelligenceHemmerle was convicted in the Municipal Court of the City of Wilton Manors on January 21, 1970 for violating a traffic ordinance. He then appealed to …
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This is a petition for certiorari by Kenneth Hemmerle to review an order of the Circuit Court for Broward County, Florida, which dismissed the petitioner’s appeal to that court from a judgment of the Municipal Court of the City of Wilton Manors. The record before us consists solely of the petition for certiorari (originally filed in the Florida Supreme Court) and the following certified papers from the Circuit Court: (1) Motion to Dismiss Appeal filed by the City of Wilton Manors; (2) Notice of Hearing; (3) circuit court order granting the motion; (4) Petition for Rehearing; and (5) order denying petition.
From the foregoing documents it appears that the petitioner was convicted in the Municipal Court of the City of Wilton Manors on 21 January 1970 for violating a traffic ordinance. The petitioner then appealed to the Broward County Circuit Court. The appeal was dismissed on motion by the City evidently on the ground that the appellant (petitioner here) failed to perfect his appeal by furnishing an adequate record.
The petitioner’s brief presents us with three contentions. First, he contends that he was not required to file a “transcript” of the proceedings and record in the circuit court because F.S.1969, section 59.27(4), F.S.A., provides that where the trial and appellate courts are in the same county, a “transcript of the proceedings and record” in the trial court is not required. The entire sense of the statute, however, is that where a “transcript” is not furnished the original documents must be furnished to constitute the record on appeal. The petitioner in our case simply quotes the statute out of context and apparently urges that it obviates any requirement to provide a record. In addition to this fallacy, the statute has been superced-ed by that part of Florida Appellate Rule 6 which deals with the preparation of the record on appeal in criminal cases. (Please note that Rule 6 dealing with criminal appeals specifically applies to appeals from municipal courts. See Rule 6.1, FAR.)
The petitioner’s second contention is that under Section 932.52(8), F.S.1969, proceedings in pais may be brought to the appellate court’s attention by recitals in the order on appeal and stipulations of the parties, etc. There are two problems with this argument. In the first place this statute has also been superceded by the aforementioned appellate rule. In the second place there is no allegation either in the brief of the petitioner or in the petition for certiorari that the facts before the municipal court were presented to the circuit court in the manner provided by statute.
The third contention by the petitioner is that because the briefs had been filed in the circuit court prior to the motion to dismiss, the motion to dismiss was tardy under Rule 3.9(c), FAR. That rule does provide that motions to dismiss shall be filed before briefs are in; however, *148that rule has no application to criminal appeals. Furthermore, even if the rule did apply, it would be immaterial because an appellate court has the express power under Rule 6.13, FAR, as well as the inherent power to dismiss an appeal on its own motion where the same is not properly prosecuted. See Bell v. Bell, Fla.1955, 81 So.2d 526 and Prevatt v. Link, Fla.App.1958, 107 So.2d 37.
Indulging the presumption of correctness in favor of the ruling of the circuit court, we assume that the basis for the dismissal by that court of the petitioner’s appeal was the failure of the petitioner to bring to the circuit court, in any form, a record of the trial proceedings in the municipal court. This of course is a proper basis for dismissal or affirmance by the circuit court. See City of South Bay v. Armstrong, Fla.App.1966, 188 So.2d 21.
For the above reasons we see no ground for review by certiorari.
Certiorari denied.
REED, C. J., and WALDEN and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holden v. City OF Fort Lauderdale, 286 So. 2d 218 (Fla. 4th DCA 1973)…titioner has not furnished this court with sufficient record of the proceedings upon which to predicate a petition for writ of certiorari and accordingly certiorari must be denied on that basis alone. Hemmerle v. City of Wilton Manors, Fla.App.1971, 251 So. 2d 146. It may be presumed it was for that reason the trial court “quashed” petitioner’s appeal. Hemmerle v. City of Wilton Manors, supra.…
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Dara v. State, 278 So. 2d 334 (Fla. 3d DCA 1973)…for failure to comply with the appellate rules. Prevatt v. Link, Fla.App.1958, 107 So. 2d 37; Ferrell Jewelers of Tampa, Inc., v. Southern Mill Creek Products Company, Inc., Fla.1967, 205 So. 2d 657; Hemmerle v. City of Wilton Manors, Fla.App.1971, 251 So. 2d 146; Rule 6.-13, F.A.R., 32 F.S.A. Turning to the appellant Dara, the only point preserved on appeal was raised by the supplemental assignment of error that he was not tried within 180 days of his arrest. This is readily apparent on the record, he havi…
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Dasher v. State, 291 So. 2d 116 (Fla. 2d DCA 1974)…f law. It is well established that an appellate court has the express power under Rule 6.-13, supra, as well as the inherent power to dismiss an appeal where the same is not properly prosecuted. Hemmerle v. City of Wilton Manors, Fla.App.4th, 1971, 251 So. 2d 146. For the above reasons we find that there is no ground for review by certiorari. Certiorari denied. McNULTY, Acting C. J., and GRIMES, J., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The City OF S. BAY v. Armstrong, 188 So. 2d 21 (Fla. 4th DCA 1966)
- Prevatt v. Ressie Link, 107 So. 2d 37 (Fla. 2d DCA 1958)
- Bell v. Roxie P. Bell, 81 So. 2d 526 (Fla. 1955)