Opinion
No. 80-1413.
August 19, 1981.
Appeal from the Circuit Court, Brevard County, Roger F. Dykes, J.
Jack A. Kirschenbaum of Wolfe, Kirschenbaum, Caruso, Mosley Kabboord, P.A., Cocoa Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
ON MOTION FOR REHEARING
The appellant, Thomas Joseph Hannah, was found guilty of several related drug charges by a jury verdict returned on August 27, 1980. At that time, he was remanded to custody pending receipt by the trial court of a presentence investigation report. He was neither adjudicated nor sentenced.
As of October 31, 1980, the defendant still had not been adjudicated or sentenced. On that date, he filed in the office of the Clerk of the Circuit Court of Brevard County the following "Notice of Appeal:"
NOTICE IS HEREBY GIVEN that THOMAS JOSEPH HANNAH, Defendant, Appellant, appeals to the District Court of Appeal, Fifth District of Florida, the conviction entered by the jury on August 27, 1980. The Honorable Roger F. Dykes accepted the jury verdict of guilty and remanded the Defendant, Appellant to custody pending pre-sentence investigation and said Defendant, Appellant has not yet been sentenced.
It was not until November 12, 1980, that the trial court adjudicated Hannah guilty and imposed sentence.
On May 6, 1981, this court sua sponte dismissed the appeal on the basis that a jury verdict is not appealable, citing Smith v. State, 395 So.2d 575 (Fla.5th DCA 1981). The appellant has moved for rehearing, but the motion fails to address the determinative issues:
1. Is the notice sufficient to constitute a premature appeal from a judgment, as opposed to the appeal of a verdict?
2. If so, can the rule enunciated by the Florida Supreme Court in Williams v. State, 324 So.2d 74 (Fla. 1975), be applied where the notice of appeal is filed prior to any oral pronouncement of judgment or any reduction to writing of the judgment?
Upon consideration of the clear wording of the notice filed on October 31, 1980, and the Williams opinion, we answer both of the above questions in the negative: the notice purports to appeal the jury verdict; in Williams the notice was directed to a judgment which had been orally pronounced but not rendered. If the Williams exception is to be extended, the innovation should come from the Florida Supreme Court. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).
Accordingly, the motion for rehearing is denied. We certify this opinion, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, to the Florida Supreme Court as passing upon a question of great public importance: can a notice of appeal filed subsequent to verdict but prior to any oral pronouncement of judgment preserve an appeal?
DENIED.
SHARP, J., concurs.
DAUKSCH, C.J., dissents with opinion.
I respectfully dissent. In my opinion the Williams v. State, 324 So.2d 74 (Fla. 1975), case should be extended to include a case such as this where appellant's counsel made a mistake by filing the notice of appeal too early. In this type of case we should rule the notice of appeal laid in limbo, just like in Williams, until the judgment was rendered, since we can assume one would be rendered.
This is not to say the rule would extend any further back; that is, one cannot file a notice of appeal before the verdict, which almost inevitably results in either an appealable judgment or an appealable order of probation. It is so rare as to be nearly never that a trial judge enters a judgment of not guilty on a verdict of guilty so that any inconvenience which may result from a notice of appeal being improvidently, as opposed to untimely, filed is almost nil.
By the way, it is clear why the notice of appeal was filed early because the appellant was ordered to jail after the verdict and he wanted out. He could only get out by posting a bond on appeal and he could not do that until he filed his notice of appeal. Of course the judge was required to release him on his trial bail as the case of Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA), cert. dismissed 320 So.2d 393 (1975), dictates but evidently counsel and the judge were unaware of that rule. Until adjudication an accused is entitled to remain free on his bail, assuming he does not violate a proper bail condition. Andress.
Although I am pleased the majority has certified the question to the Supreme Court in order to allow a review of what I consider a ruling inconsistent with the spirit of the Williams decision I also do not think the majority's ruling would violate the warning so strongly made in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), regarding appellate courts invading the function of the Supreme Court. The decision in this case merely interprets and refuses to extend the Williams ruling. That is a lot different than deciding contributory negligence is no longer a lawful defense in Florida in face of Supreme Court rulings to the opposite. I suggest it is one of our basic functions to interpret, and by that extend in proper situtations, cases decided by our Supreme Court. To certify the question in this case is to transfer our duty in this regard.