Mitchell v. State

282 So. 2d 648, 1973 Fla. App. LEXIS 7568

Opinion

ON PETITION FOR REHEARING MOTION TO DISMISS

MANN, Chief Judge.

The State’s original motion to dismiss was directed to a notice purporting to appeal from “denial of Defendant’s Motion to Suppress Evidence” but indicating that a final disposition of the case had thereafter been made. We would have inclined to treat the notice of appeal as directed to the final judgment and thus to allow the alleged impropriety of any action of the trial judge to be assigned as error.¹ Now the State has filed a petition for rehearing, supplemented by a certificate of the clerk of the trial court to the effect that there has never been a final judgment entered. In view of this fact, the order appealed from is not an appealable order.² and we treat the petition for rehearing as a second motion to dismiss, properly supported and well taken. Therefore the State’s motion to dismiss is granted, without prejudice to the right of appellant to timely file a notice of appeal directed to final judgment.

McNULTY and BOARDMAN, JJ, concur.

Footnotes

1

. Huie v. State, Fla.1957, 92 So.2d 264.

2

. Id.