SMIRRA v. State

966 So. 2d 1019, 2007 WL 3033405

• Court: District Court of Appeal of Florida
• Decided: October 19, 2007
• Docket: 5D07-1939
• Status: Published

Opinion

966 So.2d 1019 (2007)

Tonie SMIRRA, Petitioner,
v.
STATE of Florida, Respondent.

No. 5D07-1939.

District Court of Appeal of Florida, Fifth District.

October 19, 2007.

Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, for Respondent.

LAWSON, J.

Tonie Smirra seeks certiorari review of an order entered by the circuit court, sitting in its appellate capacity, which dismissed her appeal for failure to file an initial brief. Smirra timely sought extensions of the filing deadline for her brief, and "[s]uccessive extensions of time are permissible unless the court has issued an order indicating that no further extensions will be allowed, or the equivalent." United Auto. Ins. Co. v. Total Rehab and Med. Center, 870 So.2d 866, 869 (Fla. 3d DCA 2004) (en banc). Here, the court never issued an order indicating that no further extensions would be allowed. Additionally, "considerations of fairness dictate that if a failure to file the brief by the deadline may subject the appeal to dismissal, there must [be] fair warning of that fact in advance". Id. No such warning was given here. Therefore, we find that the circuit court's order dismissing Smirra's appeal departed from the essential requirements of the law, warranting certiorari relief. Id. The State correctly concedes that this relief is warranted.

As the appeal below should not have been dismissed, we quash the dismissal order.

CERTIORARI GRANTED; ORDER QUASHED.

PALMER, C.J., and EVANDER, J., concur.