Sutton v. Amerson

PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 28, 2005, the Court has determined that the order on appeal is not an appealable order.

A final order holding a party in indirect criminal contempt for failure to comply with an order of the court pursuant to Florida Rule of Criminal Procedure 3.840, is an appealable order. See Hunt v. State, 659 So.2d 363 (Fla. 1st DCA 1995); Baker v. Green, 732 So.2d 6 (Fla. 4th DCA 1999). Here, however, the lower tribunal appears to have neither granted nor denied the motion. Contrary to the appellant’s assertion, the order on appeal does not hold the appellant in contempt. Although it determined that a factual basis for a finding of contempt exists, the lower tribunal concluded that a finding of contempt and the attendant sanction of incarceration are proper only after the issuance of an order to show cause. Because no such show cause order had issued, the court withheld the imposition of contempt sanctions. Thus, the motion for contempt appears to remain pending before the lower tribunal and the notice of appeal is consequently premature. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

The appellant’s Motion for Extension of Time to File Brief, filed on January 9, 2006, and Amended Motion for Extension of Time to File Brief, filed on January 12, 2006, are denied as moot.

ERVIN, DAVIS and LEWIS, JJ., concur.