Griffith v. State , 171 So. 2d 597 ( 1965 )

171 So.2d 597 (1965)

Howard Andrew GRIFFITH, Appellant,
v.
The STATE of Florida, Appellee.

No. 64-160.

District Court of Appeal of Florida. Third District.

January 26, 1965. Rehearing Denied March 2, 1965.

Law Offices of Henry R. Carr and William B. Seidel, Miami, for appellant.

Earl Faircloth, Miami, for appellee.

Before TILLMAN PEARSON, CARROLL and HENDRY, JJ.

PER CURIAM.

The appellant was indicted on December 11, 1962, by a Dade County Grand Jury for first degree murder. He was tried and found guilty of second degree murder. A judgment of guilty and sentence of twenty years in the State prison were entered on January 24, 1963. The defendant filed a motion for a new trial on February 5, 1963. Subsequently, and without disposition of the motion for new trial, the defendant filed a petition for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. This petition was denied. Thereafter, on December 3, 1963, defendant's motion for new trial was denied.

On February 26, 1964, within the time in which the defendant could have appealed the judgment or sentence, or both, a notice of appeal was filed directed solely to the order denying defendant's motion for a new trial. On this appeal the only question presented to us is whether the trial court erred in denying the motion for new trial when it was made to appear that the appellant was indicted for first degree murder but convicted of second degree murder upon evidence that an innocent by-stander was killed by a shot fired at the defendant by the victim of a robbery perpetrated by the defendant, when the shot was fired in pursuit of the defendant. We have carefully reviewed this record and would hold that the question presented should be answered adversely to the appellant upon the authority of Hornbeck v. State, Fla. 1955, 77 So.2d 876.

Nevertheless, we cannot make such a decision because we must hold that we have no jurisdiction of this appeal. An appeal may be taken by the State from an order granting a new trial. See § 924.07 (2) Fla. Stat., F.S.A. But no provision is made by the Florida Statutes or the Florida Appellate Rules for an appeal by the defendant from an order denying a motion for new trial. Such a denial must be assigned as error on an appeal from the final judgment. See Koch v. State Road Department of Florida, Fla. 1958, 106 So.2d 426.

Appeal dismissed.