Dismissal Sanction Too Extreme

Is a single violation of the Rules of Appellate Procedure severe enough to justify dismissal of the appeal as a sanction?

The Second DCA answered the question in the negative in Altman v. State, __ So.3d ___, No. 2D09-3871 (Aug. 6, 2010)[.pdf]. The opinion makes clear that the record is not exactly a model of clarity, due in large part to the fact that the appellant filed an inadequate Appendix. I’ve said it before: a proper Appendix is critical to effective appellate review.

Still, the Court still went out of its way to review, on certiorari, a lower courts’ dismissal of the appeal for failure file a timely brief. The case appears to be a criminal appeal where the circuit court acted in an appellate capacity, and the DCA’s patience may have been bolstered somewhat by the trial court conflating the rules for when a criminal appeal is due with the rules for when a civil appeal is due.

In any event, the circuit court sitting in its appellate capacity thought the brief was late, and relying on Florida Rule of Appellate Procedure 9.410 issued an order to show cause why the appeal shouldn’t be dismissed for failure to file a timely brief. The Appellant indirectly responded by moving for an enlargement of time to file a brief, explaining that the record was not yet completely transcribed. The Appellant was granted that enlargement, which gave her until July 23rd to file her initial brief.

Inexplicably, the court dismissed her appeal sua sponte on July 21st, vacating the enlargement of time that had been entered as “improvidently granted.” On review to the Second DCA, the Court held that this action failed to comply with procedural due process and the notice requirements of Rule 9.410. The Court concluded that “Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal.” (emphasis in original).

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