Jimmie Forehand v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1970
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JIMMY FOREHAND,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition for Writ of Certiorari—Original Jurisdiction.
February 5, 2019
WETHERELL, J.
In this certiorari proceeding, the petitioner, Jimmy Forehand,
seeks review of the circuit court order dismissing his appeal of a
county court criminal judgment and sentence. Although we are
mindful that “[o]ur job is not to decide whether, facing the same
circumstances, we too would dismiss,” McBride v. Vansandt, 201
So. 3d 835, 837 (Fla. 1st DCA 2016), we agree with Forehand that
the circuit court departed from the essential requirements of law
when it dismissed his appeal. Accordingly, we grant Forehand’s
petition for writ of certiorari and quash the dismissal order.
Forehand was convicted of two misdemeanors in the county
court, and he appealed the resulting judgment and sentence to the
circuit court. After Forehand did not file his initial brief within
the time prescribed by the appellate rules, see Fla. R. App. P.
9.140(g)(1) (requiring the initial brief to be served within 30 days
of transmission of the record), the circuit court ordered Forehand
to file the brief within 30 days and warned him that the appeal
would be dismissed if he did not comply with the order.
On the thirtieth day after the order was entered, Forehand’s
attorney 1 filed a motion for extension of time in which she
explained that the trial transcript was not yet complete because it
had taken Forehand time to obtain the funds necessary to pay for
the transcript. The circuit court denied the motion for extension
of time and dismissed the appeal, citing Forehand’s delay in
ordering the transcript and his failure to timely advise the court
that there were problems with the record.
Forehand appealed the dismissal order to this court, 2 but
because the order was entered by the circuit court in its appellate
capacity, we converted the appeal to a certiorari proceeding and
directed Forehand to file a petition for writ of certiorari. See Fla.
R. App. 9.030(b)(2)(B) (“The certiorari jurisdiction of the district
courts may be sought to review final orders of circuit courts acting
in their review capacity.”); Kaloyios v. Regal Homes of Central
Florida, Inc., 967 So. 3d 1035, 1036 (Fla. 5th DCA 2007) (“An order
dismissing [a circuit court] appeal is reviewable by certiorari.”).
The scope of our review in this proceeding is extremely
narrow, and we can only grant relief if the circuit court failed to
afford procedural due process or departed from the essential
requirements of law. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d
885, 889 (Fla. 2003). A circuit court departs from the essential
requirements of law when it violates a clearly established principle
1 The attorney representing Forehand in the circuit court is
not the same attorney representing him in this court.
2 Forehand did not seek rehearing of the dismissal order
before filing the appeal even though the trial transcript was filed
with the circuit court within the 15-day timeframe for filing a
motion for rehearing. It is quite possible that the learned circuit
court judge would have reconsidered her decision to deny the
motion for extension of time and dismiss the appeal if she had been
informed that the trial transcript had been filed.
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of law resulting in a miscarriage of justice. Id. (citing Ivey v.
Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)).
Forehand’s petition argues that the circuit court departed
from the essential requirements of law when it dismissed his
appeal because dismissal is an extreme sanction that is not
warranted under the circumstances of this case. We agree.
It is well-established that dismissal of an appeal is an extreme
sanction that is reserved for the most flagrant violations of the
appellate rules. Lindsey v. King, 894 So. 2d 1058, 1059 (Fla. 1st
DCA 2005). The appellant’s failure to timely file an initial brief
does not justify the dismissal of an appeal unless the appellant has
been warned that this consequence may flow from a late filing. Id.
at 1060 (quoting United Auto Ins. Co. v. Total Rehab & Med. Ctr.,
870 So. 2d 866, 869 (Fla. 3d DCA 2004)). However, even when the
appellant has been duly warned, the district courts have routinely
quashed dismissal orders when the appellant’s failure to file the
initial brief does not stem from extreme, willful misconduct, or an
intentional disregard of court orders or the appellate rules. See,
e.g., Untied Auto Ins. Co. v. County Line Chiropractic Ctr., 8 So. 3d
1258, 1260 (Fla. 4th DCA 2009); Kaloyios, 967 So. 2d at 1038;
Gillespie v. City of Destin, 946 So. 2d 1195, 1196 (Fla. 1st DCA
2006); Hastings v. State, 640 So. 2d 115 (Fla. 2d DCA 1994).
Here, although Forehand was warned that his failure to file
his initial brief within 30 days would result in the dismissal of his
appeal, Forehand did not disregard the order and instead timely
filed a motion for extension of time explaining why he was not able
to file a brief within the deadline set by the court. Cf. Swicegood
v. Dep't of Transp., 394 So.2d 1111, 1112 (Fla. 1st DCA
1981) (holding that dismissal was proper because counsel had
failed to file a brief, failed to request an extension of time, and
failed to explain his conduct in response to the court's order to
show cause). The reason for the extension requested by
Forehand—and the requested extension itself—was not
unreasonable under the circumstances, and thus, the circuit
court’s denial of the motion for extension of time and the resulting
dismissal of the appeal constituted a departure from the essential
requirements of law. See Paul Revere Life Ins. Co. v. Kahn, 873
So. 2d 595 (Fla. 3d DCA 2004) (quashing order that only granted
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extension of time to file initial brief to the date that the trial
transcript was to be completed because “[i]t is fundamentally
unfair to require a party to prepare a brief without a transcript”).
That said, it would have been better practice for Forehand’s
attorney to bring the issues with the trial transcript to the circuit
court’s attention sooner than she did. 3 However, despite the
attorney’s shortcomings, we are loath to allow the “sins of the
attorney [to be] visited on the client.” Lindsey, 894 So. 3d at 1059
(quoting Hastings v. State, 640 So. 2d 115, 116 (Fla. 2d DCA 1994));
see also Gillespie, 946 So. 2d at 1199 (explaining that the
“[d]ismissal of an appeal for the untimely filing of a brief serves
only to penalize the client for the shortcomings of counsel, which
can better be addressed by the use of other sanctions such as fines,
costs, reprimand, and contempt”); Gentry v. Gentry, 463 So. 2d 511,
512 (Fla. 1st DCA 1985) (same). This is particularly true in a
criminal case such as this where the effect of the dismissal was to
deprive Forehand of his right to obtain appellate review of his
conviction and there is no apparent prejudice to the State in
allowing the appeal to proceed. See Altman v. State, 41 So. 3d
1030, 1035 (Fla. 2d DCA 2010).
Accordingly, we quash the order dismissing Forehand’s
appeal and remand the case to the circuit court for further
proceedings.
PETITION GRANTED; ORDER QUASHED.
WOLF and LEWIS, JJ., concur.
3 For example, as soon as the record was filed without the
trial transcript (or no later than 30 days thereafter when the initial
brief was due), the attorney should have filed a motion for
extension of time to file the brief. Of course, the attorney might
not have needed to request an extension of time if she had
designated the trial transcript for transcription when she filed the
notice of appeal as the appellate rules contemplate, see Fla. R. App.
P. 9.140(f)(2), because had that been done, the record would not
have been transmitted—and the time for filing the initial brief
would not have commenced—until the trial transcript was filed,
see Fla. R. App. P. 9.140(f)(1).
4
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Petitioner.
Ashley B. Moody, Attorney General, and Michael McDermott,
Assistant Attorney General, Tallahassee, for Respondent.
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