Allston v. State

685 So. 2d 1312, 1996 WL 1168

• Court: District Court of Appeal of Florida
• Decided: January 3, 1996
• Docket: 95-02856
• Status: Published

Opinion

685 So.2d 1312 (1996)

Robert F. ALLSTON, Petitioner,
v.
STATE of Florida, The Honorable William Nelson, Twentieth Judicial Circuit Judge, The Honorable James Thompson, Twentieth Judicial Circuit Judge, The Honorable Charlie Green, Clerk of Court, Twentieth Judicial Circuit, Frank Alderman, III, and John Hendry, Respondents.

No. 95-02856.

District Court of Appeal of Florida, Second District.

January 3, 1996.

Robert F. Allston, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Respondents.

PER CURIAM.

Robert Allston petitions this court for a writ of mandamus compelling Charlie Green, the clerk of the circuit court, to forward to this court his notice of appeal of an order entered October 14, 1994.

Allston filed a notice of appeal of the trial court's October 10, 1994, order with Judge James R. Thompson. Judge Thompson entered an order rendered November 7, 1994, which determined the October 14, 1994, order was not appealable and purported to prevent Allston's notice of appeal from being filed in this court.

Allston's notice of appeal met the threshold requirements of Florida Rule of Appellate Procedure 9.110(d) and, upon filing, divested the circuit court of jurisdiction. Edward J. DeBartolo Corp. v. Dryvit Systems, Inc., 368 So.2d 85 (Fla. 2d DCA 1979). See also Alfonso v. Department of Environmental Regulation, 616 So.2d 44 (Fla.1993); Williams v. State, 324 So.2d 74 (Fla.1975). In Alfonso v. Department of Environmental Regulation, the supreme court explained that:

[A]n appellate court's jurisdiction is invoked by a timely filing of a notice of appeal or a petition for certiorari in either the lower court that issued the order to be reviewed or the appellate court which would have jurisdiction to review the order.

616 So.2d at 47. Therefore, Allston's filing of his notice with the circuit court complied with rule 9.110(b). Forwarding a notice of appeal is a ministerial duty of the clerk of circuit court. Martin v. Circuit Court, Seventeenth Judicial Circuit, 627 So.2d 1298 (Fla. 4th DCA 1993). Accordingly, we grant the petition and direct the circuit court to forward Allston's notice of appeal to this court.

BLUE, A.C.J., and QUINCE and WHATLEY, JJ., concur.