Opinion
No. 68-889.
July 22, 1969.
Appeal from the Criminal Court of Record, Dade County, Carling Stedman, J.
Jack R. Nageley and Harvey S. Swickle, Miami Beach, for appellant.
Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, HENDRY and SWANN, JJ.
The defendant, Charles Lowell Merrill, was charged by information with one count of operating a gambling room and five counts of bookmaking. He was found guilty of a felony charged in the first count and a misdemeanor under each of the other five counts.
As to the felony conviction, the defendant was sentenced to a fine of $3,000.00 or to serve a term of three years in the State Penitentiary. He was sentenced on the misdemeanor convictions to serve one day in the Dade County Jail, with credit to be given for the time served in jail prior to sentencing. Defendant paid the fine imposed under the felony conviction.
An appeal has been filed in this court by the defendant from the judgment and sentence imposed under each of the counts.
The state has moved to dismiss this appeal in its entirety on the ground that the appeal has been rendered moot by payment of the fine imposed upon defendant. In support of this position, the state cites the United States Supreme Court case of St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). We do not find the St. Pierre case to be authority for a dismissal of the instant appeal. Therefore, we cannot agree with the state's contention and deny the motion to dismiss this appeal. The state has moved in the alternative that the appeal, as it relates to the misdemeanor counts, be transferred to the circuit court, the court having jurisdiction of appeals from convictions of misdemeanors. The motion is well taken. Convictions on misdemeanor counts are reviewable by the Circuit Court of Dade County, pursuant to Article V, §§ (5) and (6) of the Constitution of the State of Florida, F.S.A.; and under authority of Rule 2.1, Subd. (a) (5) (d), Florida Appellate Rules 32 F.S.A. This appeal, insofar as it is concerned with the misdemeanor convictions, will, after our decision on the felony appeal, be transferred to the Circuit Court of Dade County by a separate order. See Christian v. State, Fla.App. 1965, 176 So.2d 561; Troise v. State, Fla.App. 1965, 177 So.2d 24.
Motion to dismiss denied; motion to transfer that portion of the appeal relating to misdemeanor convictions is granted.