Billens v. State

176 So. 3d 284, 2015 Fla. App. LEXIS 9473, 2015 WL 3826355

Opinion

PER CURIAM.

By petition for writ of certiorari, David Billens seeks relief from a circuit court order granting the state’s motion to dismiss his appeal for lack of prosecution and failure to file an initial brief. The circuit court dismissed Mr. Billens’ appeal three days (one business day) after the state’s motion was filed and did not therefore, provide him the ten days to respond to the state’s motion required by Florida Rule of Appellate Procedure 9.410(b)(5). “It is well settled that dismissal of an appeal without providing the requisite notice under rule 9.410 constitutes a departure from the essential requirements of the law.” Altman v. State, 41 So.3d 1030, 1033 (Fla. 2d DCA 2010); see Gillespie v. City of Destin, 946 So.2d 1195, 1198-99 (Fla. 1st DCA 2006); see also Lindsey v. King, 894 So.2d 1058, 1060 (Fla. 1st DCA 2005) (“ ‘[T]he great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fair warning, in advance, that this consequence may flow from a late filing.’ ” (citation omitted)). The state has conceded it cannot show good cause why the petition should not be granted.

Accordingly, we grant - the petition, quash the order of dismissal, and remand for further proceedings.

WOLF, BENTON, and RAY, JJ., concur.