Kuznik v. State , 604 So. 2d 37 ( 1992 )

604 So.2d 37 (1992)

Dale Patrick KUZNIK, Petitioner,
v.
STATE of Florida, Respondent.

No. 92-02008.

District Court of Appeal of Florida, Second District.

August 28, 1992.

Kerry E. Mack of Kerry E. Mack, P.A., Englewood, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for respondent.

PER CURIAM.

Petitioner Dale Kuznik seeks certiorari review of a decision of the circuit court sitting in its appellate capacity.

Kuznik had appealed a county court order denying his petition for writ of error coram nobis.^[1] Apparently it took an inordinate time to prepare an appellate record. Kuznik sought two extensions for filing his brief; the first was granted but no ruling was entered on the second. Kuznik finally obtained his record and filed a brief. Nevertheless the circuit court, upon motion by the state, dismissed the appeal.

Kuznik argues, and we agree, that the second motion for extension tolled the time to file his brief. Ike's Carter Pool & Maintenance v. Roberts, 432 So.2d 137 (Fla. 4th DCA 1983). Perhaps Kuznik might have pursued more aggressively a ruling on his motion, but dismissal was an unduly harsh sanction.^[2] The petition for writ of certiorari is granted and this case is remanded to circuit court with instructions to entertain Kuznik's appeal on its merits.

Petition granted.

RYDER, A.C.J., and PARKER and PATTERSON, JJ., concur.

NOTES

[1] Unlike the other "extraordinary writs," coram nobis may be filed in county court if that is where the judgment arose originally. State v. Stettin, 364 So.2d 95 (Fla. 3d DCA 1978). We express no opinion as to the merits of Kuznik's petition or his subsequent appeal.

[2] The record does not support any suggestion that the second motion was an abuse of the rules. Cf. Blanton v. State, 561 So.2d 587 (Fla. 2d DCA 1989) (frivolous motion for extension will not toll filing time).