Opinion
No. 1D21-1834
01-05-2022
J.R.P.W., a Child, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Darcy O. Townsend, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Darcy O. Townsend, Assistant Attorney General, Tallahassee, for Appellee.
Winokur, J.
J.R.P.W., a juvenile, seeks review of the trial court's "amended final disposition order," rendered May 13, 2021, and seeks to have the restitution condition of her probation stricken. As explained below, because this appeal is premature and the issue raised by J.R.P.W. is moot, we dismiss this appeal.
I.
J.R.P.W. was orally adjudicated delinquent following a hearing on March 30, 2021. She timely filed a motion for rehearing on April 7, 2021. While this motion was pending, the trial court rendered a "final disposition order" on April 29, 2021, withholding adjudication and placing J.R.P.W. on probation. The April 29 order also reserved jurisdiction for 60 days to determine the amount of restitution but otherwise noted that restitution would be ordered. Following a hearing on the amount of restitution, the trial court rendered an "amended final disposition order" on May 13, 2021. The May 13 order requires J.R.P.W. to give $400 in restitution to the victim as a condition of her probation.
Meanwhile, the April 7 motion for rehearing remained pending until it was taken up at a hearing on May 27, 2021. At the May 27 hearing, the trial court made two oral rulings. First, it orally denied the motion for rehearing. And second, it sua sponte vacated the restitution amount in the May 13 "amended final disposition order." The trial court proposed that a rehearing on the restitution amount be conducted on June 17, 2021, and the parties agreed.
But before a new restitution rehearing could take place, J.R.P.W. filed a notice of appeal on June 10, 2021, seeking review from the May 13 "amended final disposition order." The record, however, reflects that the trial court never rendered a written order denying the April 7 motion for rehearing.
The record also reflects that the trial court canceled the June 17 restitution rehearing after the notice of appeal was filed on June 10. Yet, the issue J.R.P.W. specifically raises in her initial brief is "whether the trial court reserved jurisdiction to hold a restitution rehearing on June 17, 2021, to determine the amount of restitution under section 985.0301."
II.
First, we conclude this appeal is premature. Because there is no written order disposing of the April 7 motion for rehearing, the May 13 "amended final disposition order" was not final when the notice of appeal was filed on June 10. And it is still not final. This is so because rendition of the May 13 order was delayed by—and the time for filing appeal was tolled by—the timely filed April 7 motion for rehearing. See Fla. R. App. P. 9.020(h)(1)(B) ("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. ... The following motions, if authorized and timely filed, toll rendition unless another applicable rule of procedure specifically provides to the contrary: ... (B) motion for rehearing ...."); Fla. R. Juv. P. 8.130(b)(3) ("A motion for rehearing shall toll the time for the taking of an appeal."). Neither the notation on the lower court docket reflecting that the motion for rehearing was denied nor the oral denial of the motion for rehearing may be deemed a final "order." See Fla. R. App. P. 9.020(f) (defining "order" as "[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries"); see, e.g., Cotton v. State , 300 So. 3d 1256, 1258 (Fla. 1st DCA 2020) (holding that "a trial court's verbal grant of a motion for resentencing, if not reduced to writing," is not "the ‘functional equivalent’ of a final order"), review denied , 2021 WL 5626441 (Fla. Dec. 1, 2021).
We recognize that Florida Rule of Appellate Procedure 9.020(h)(2)(C) provides that the appeal will be held in abeyance until a written order on the motion for rehearing is rendered or the motion is withdrawn. See Fla. R. App. P. 9.020(h)(2)(C) ("If any timely and authorized motion listed in subdivision (h)(1) of this rule has been filed in the lower tribunal directed to a final order, the following apply: ... (C) if a notice of appeal is filed before the rendition of an order disposing of all such motions, the appeal shall be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion." (emphasis added)). But Florida Rule of Appellate Procedure 9.110(l ) also provides that a premature appeal is subject to dismissal unless the trial court renders a final order before dismissal or the appellate court exercises "its discretion" to "grant the parties additional time to obtain a final order from the lower tribunal." In this case, J.R.P.W. not only has had approximately six months to obtain a final order, but chose instead to file a notice of appeal before an order on the motion for rehearing was filed. Under the circumstances, we decline to grant J.R.P.W. additional time to obtain a written order on the motion for rehearing and dismiss this appeal as premature.
III.
Even if the appeal were not premature, we conclude that the issue presented by J.R.P.W. is moot. J.R.P.W. asks this Court to decide that the trial court lacked jurisdiction to hold a restitution rehearing on June 17, 2021. However, once J.R.P.W. filed the notice of appeal on June 10, 2021, the record reflects the trial court canceled the June 17 hearing. Because the trial court never exercised jurisdiction to conduct a hearing on June 17, a judicial determination on the issue raised by J.R.P.W. can have no effect. Thus, we also dismiss this appeal as moot. See Casiano v. State , 310 So. 3d 910, 913 (Fla. 2021) ("In general, an appellate court will dismiss a case if the issues raised have become moot. We have defined an issue as ‘moot’ ‘when the controversy has been so fully resolved that a judicial determination can have no actual effect.’ " (quoting Godwin v. State , 593 So. 2d 211, 212 (Fla. 1992) ).
IV.
For the foregoing reasons, we dismiss this appeal as premature and moot.
DISMISSED .
Long, J., concurs; Makar, J., concurs with opinion.
Makar, J., concurring.
We have two options given the situation presented. One is to dismiss this appeal as premature because of the pending motion for rehearing in the trial court that has been ruled upon verbally but for which no written order was entered; if the trial court enters a written order thereafter, an appeal may be initiated if done so in a timely fashion. It is unclear whether such an appeal is merited given that the relief initially sought is now moot. Alternatively, we could exercise our authority to hold this appeal in abeyance and allow the parties time to procure the entry of a final order on the motion for rehearing, thereby avoiding the needless addition of another appeal to our docket. See Fla. R. App. P. 9.110(l) ("Before dismissal, the court in its discretion may grant the parties additional time to obtain a final order from the lower tribunal."). Between the two, the latter would seem preferable from a judicial administration perspective because no second appellate case is required. But, under the circumstances, where the underlying basis for the initial appeal has been mooted (i.e., the trial court's cancellation of the restitution hearing), it is not apparent that a subsequent appeal will materialize.