Opinion
No. 75-2.
May 6, 1975.
Richard E. Gerstein, State's Atty. and Milton Robbins, Asst. State's Atty., for petitioner.
Pertnoy, Spaet Greenberg, Miami, for respondent.
Before BARKDULL, C.J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
The State of Florida, feeling aggrieved by a dismissal of its appeal to the Circuit Court, acting in its appellate capacity, seeks a writ of certiorari from this court.
The Circuit Court dismissed the State's appeal on a motion to dismiss filed by the defendant Erwin Stein (a/k/a Stern) which alleged that the state had failed to timely serve its brief upon the defendant-appellee.
The record reveals that the state had met all previous deadlines under the applicable appellate rules. Accepting the respondent's contention that he did not receive the state's brief by mail until October 17, 1974, we calculate that to be only three days late, excluding the weekend and an intervening holiday.
Under the circumstances, we think that dismissal of the appeal was too harsh and accordingly the writ of certiorari is granted and the order entered by the circuit court is quashed with directions to proceed with the appeal.
It is so ordered.