Opinion
No. 90-589.
September 27, 1990.
Appeal from the Circuit Court, Volusia County, Patrick G. Kennedy, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellant.
John J. Bonaccorsy, Daytona Beach, for appellee.
ON MOTION TO WITHDRAW NOTICE OF VOLUNTARY DISMISSAL AND TO REINSTATE APPEAL
The state filed a notice of appeal in this case on March 19, 1990, seeking review of a non-final trial court order suppressing evidence, as is permitted by Rule 9.140, Florida Rules of Appellate Procedure. On May 30, 1990, the state filed with this court a "Notice of Voluntary Dismissal" pursuant to Florida Rule of Appellate Procedure 9.350(b). That rule provides:
(b) Voluntary Dismissal. A proceeding of an appellant or petitioner may be dismissed prior to a decision on the merits by filing a notice of dismissal with the clerk of the court without affecting the proceedings filed by joinder or cross appeal; provided that dismissal shall not be effective until 10 days after filing the notice of appeal or until 10 days after the time prescribed by Rule 9.110(b), whichever is later.
This reference to "the notice of appeal" obviously reflects an error (clerical or otherwise), and was intended to read "the notice of voluntary dismissal of appeal." Otherwise, the provision is nonsensical.
In response to the foregoing notice, this court issued an order dated June 1, 1990, approving the notice and dismissing the case. Neither the state nor the defendant filed anything during this interim ten-day period, and the record revealed no pending issues in regard to costs, sanctions, cross-appeal, or other matters. Subsequently, on June 18, 1990, the state filed a motion to withdraw its notice of voluntary dismissal and to reinstate the appeal on the basis that "a plea agreement acceptable to all parties cannot be reached and, therefore, a determination by the (appellate) court of the legality of the trial court's ruling on the Motion to Suppress is again necessitated." The state's motion does not suggest that this court's order of dismissal resulted from any illegality, fraud, mutual mistake, or excusable neglect — only that it was unsuccessful in reaching a plea agreement with the defendant. In response to the state's motion, the defendant/appellee asserted that a negotiated plea acceptable to all parties was reached between the state and the defendant, and therefore requested that the state's motion be denied.
If the issue were a factual one — i.e., did the parties negotiate an acceptable plea after the filing of the notice of dismissal — then it would be necessary to remand this cause for an evidentiary hearing before the trial court. But the dispositive issue is whether or not there is a sufficient basis, assuming the truth of the state's assertions, to alter our prior mandate of dismissal at this late date. This assumes that we have jurisdiction to do so since the state's motion was filed during the same appellate term in which the mandate issued. See § 35.10, Fla. Stat. (1989); State Farm Mutual Automobile Insurance Company v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980 (Fla. 1981); Joseph v. State, 447 So.2d 243, 246 n. 2 (Fla. 3d DCA 1983), review denied, 447 So.2d 888 (Fla. 1984).
Since we are presented with no compelling reason to withdraw our prior mandate, the state's motion is
DENIED.
W. SHARP, J., concurs.
COWART, J., concurs specially with opinion.
This appeal was dismissed by Notice of Voluntary Dismissal filed on May 30, 1990 by the State of Florida as appellant under Florida Rule of Appellate Procedure 9.350(b). On June 18, 1990, the State filed a Motion to Withdraw the Notice of Voluntary Dismissal and to Reinstate Appeal, implying that it had voluntarily dismissed its appeal in order to negotiate some plea agreement with the defendant, and that such a plea agreement could not be reached. The defendant counters that a plea agreement was reached with a particular assistant state attorney.
Whether a plea agreement was or was not successfully negotiated between the parties after the appeal was dismissed is not determinative of the question. The State apparently assumes that if the court allows the State to withdraw its Notice of Voluntary Dismissal, the effect will be to reinstate the appeal and reinvest jurisdiction in this court. This assumption is not correct. Under the rule, the State's act in filing the Notice of Voluntary Dismissal was effective to dismiss this appeal. The notice was like opening the barn door and letting the horse out; obtaining court permission to close the barn door, or even closing the door, is not going to cause the horse to be back in the barn. Because by a notice of dismissal under Rule 9.350(b) an appellant or petitioner can divest an appellate court of jurisdiction which cannot be restored, the rule should only be used when the party is sure it understands and desires the consequences of a voluntary dismissal of a pending perfected appeal. A pending appeal does not prohibit the parties from negotiating any agreement that may result in termination of litigation concerning any issue on appeal or otherwise. Termination of a pending appeal is normally one aspect of the quid pro quo of any such settlement agreement. Dismissal by stipulation after settlement under Florida Rule of Appellate Procedure 9.350(a) is a much safer procedure.
A voluntary dismissal of an appeal under Florida Rule of Appellate Procedure 9.350(b), like a voluntary dismissal of an action under Florida Rule of Civil Procedure 1.420(a)(1), is effective without an order of the court. This court entered an order on June 1, 1990, dismissing this appeal but this order served only a pro forma "housekeeping" purpose.
The State's Motion to Withdraw Notice of Voluntary Dismissal and to Reinstate Appeal should be denied for this reason.