Opinion
No. 83-949.
March 12, 1985.
Appeal from the Circuit Court, Dade County, Thomas E. Scott, J.
Bennett H. Brummer, Public Defender and R. James Pelstring, Sp. Asst. Public Defender, for appellant/cross-appellee.
Jim Smith, Atty. Gen. and G. Bart Billbrough, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
At an earlier stage of these appellate proceedings, we considered Ramos' motion to dismiss the State's cross-appeal and held that in light of the pendency of Ramos' appeal from a judgment adjudicating him guilty of second-degree murder, the State's cross-appeal from the trial court's ruling that the evidence was insufficient to sustain the jury's verdict of first-degree murder was legally authorized. See Ramos v. State, 457 So.2d 492 (Fla. 3d DCA 1984). Ramos, apparently becoming disenchanted with the merits of his appeal and more convinced of the merits of the State's cross-appeal, has now voluntarily dismissed his appeal and, urging that the State's cross-appeal cannot survive the dismissal of the main appeal, again moves to dismiss the State's cross-appeal.
The State insists that once Ramos invoked the jurisdiction of this court, and the State perfected its cross-appeal, the State is entitled to review as a matter of right, regardless of the dismissal of the main appeal. To support its contention, the State points to Florida Rule of Appellate Procedure 9.350(b), which, after setting forth the procedure for an appellant to dismiss an appeal prior to a decision on the merits, provides that such a dismissal does not affect "the proceedings filed by joinder or cross-appeal." Although the State correctly observes that the appellate rules generally apply to criminal as well as civil appeals, see State v. Williams, 444 So.2d 434 (Fla. 3d DCA 1983), it overlooks that the purpose of the rule's proviso giving a cross-appeal life independent of the main appeal is to insure a cross-appellant the right of review of adverse trial court rulings to which such cross-appellant would have been entitled had he filed the main appeal. Thus, when a party has taken a cross-appeal from an unfavorable part of a substantially favorable judgment, see Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058, 1059-60 (Fla. 3d DCA 1981) ("The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which the appellee believes itself entitled."), Rule 9.350(b) operates to allow the cross-appeal to continue despite the termination of the main appeal. This is so, however, only when the cross-appellant could have initially appealed the adverse ruling encompassed in an order or judgment. The rule does not apply where the cross-appellant could not have initially appealed, since in that instance, the cross-appeal depends entirely on the existence of an appeal. Thus, for example, a cross-appellant having no right to appeal an order denying his motion for directed verdict where the ultimate jury verdict is in his favor, has no right to a continuation of his cross-appeal of that ruling after the dismissal of the main appeal. Similarly, in the present case, where the State is not authorized to appeal the ruling that the evidence was insufficient to sustain the jury's verdict of first-degree murder, State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), and is only authorized to cross-appeal such ruling, Ramos v. State, 457 So.2d 492, the dismissal of the main appeal prior to decision puts an end to the State's appellate rights.
The advisory committee note to Rule 9.350 states that "a voluntary dismissal would not be effective until after the time for joinder in appeal or cross-appeal. This limitation was created so that an opposing party desiring to have adverse rulings reviewed by a cross-appeal cannot be trapped by a voluntary dismissal by the appellant after the appeal time has run, but before an appellee has filed his notice of joinder or cross-appeal." Thus, when one party files a notice of appeal 25 days after judgment, he cannot preclude a cross-appeal by his opponent by dismissing the appeal 31 days after judgment. In a word, a cross-appellant has a right to rely upon the appellant's timely invocation of the appellate court's jurisdiction. The committee note illustrates that the rule functions only where the cross-appellant has an independent right of appeal. Where the cross-appellant does not have an independent right of appeal, he cannot be said to rely on the appellant's action to his detriment and be "trapped" into failing to file an appeal.
The State alternatively contends that we may review the ruling below by certiorari under State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), and its progeny. Since, in our discretion, we would deny certiorari, we do not revisit the ongoing debate about the applicability or correctness of Steinbrecher, see State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc) (Schwartz, C.J., concurring), review granted (Fla. 1984).
It is therefore true, as Judge Schwartz points out in his special concurrence, that the fate of the State's cross-appeal is left to the defendant. This result follows, however, from the fact that our controlling law, see § 924.07(4), Fla. Stat. (1983); Fla.R. App.P. 9.140(c)(1)(H), does not authorize, as it constitutionally could, see Ramos v. State, 457 So.2d 492 (Fla. 3d DCA 1984), the State to directly appeal a trial court ruling, as the one here, that the evidence is insufficient to sustain a jury's verdict. Instead, in this instance, the statute and rule provide only for a state cross-appeal and thus give to the defendant control over the State's appellate rights from the outset. The fact that this control may be exercised at an advanced stage of the appellate proceeding does not, as the special concurrence suggests, make the State's right to cross-appeal a hollow one. Where, as here, a successful cross-appeal would result in the reinstatement of first-degree murder charges and renewed exposure of the defendant to a minimum mandatory sentence of twenty-five years imprisonment, it may indeed be unlikely that a defendant would accept a new trial ordered on his successful direct appeal. But where such an extreme difference in potential punishment is not a factor, we think it not unlikely that a defendant would choose a new trial, even at the risk of being subjected to a greater, but discretionary, sentence.
Finally, although, as the special concurrence suggests, the present result might be avoided by limiting the State's right of cross-appeal solely "to evidentiary issues and the like which may arise in a new trial if the defendant succeeds in securing one on his appeal," we cannot so limit the State's right of cross-appeal in light of the direct and binding authority of Mixon v. State, 59 So.2d 38 (Fla. 1952) (on State's cross-appeal under Section 924.07, Florida Statutes, reversing reduced manslaughter conviction and ordering reinstatement of jury verdict of second-degree murder).
Appeal and cross-appeal dismissed.
While I agree with the end result of the court's decision, I write separately to point out the necessary implications and consequent incongruity of the present state of the law. As the majority (and I) perceive the procedural situation, the state's cross-appeal is totally under the control and subject to the unilateral decision of the defendant until the proceeding is final. Thus, even were the court actually to issue an opinion affirming on the appeal but reversing on the cross-appeal — thus reinstating, for example, and as in this case, a first degree murder jury verdict — the defendant may, and of course would moot that holding by simply dismissing his appeal within the rehearing time. The state's "right" to cross-appeal the trial court's reduction of the charge under section 924.07(4), Florida Statutes (1983) is therefore totally futile and meaningless. It is our obligation to avoid a statutory construction which renders the provision in question "illogical or ineffective." Gracie v. Deming, 213 So.2d 294, 296 (Fla. 2d DCA 1968). In the light of what has now been revealed, I suggest that the interpretation of section 924.07(4) applied (without discussion) in Mixon v. State, 59 So.2d 38 (Fla. 1952) and adopted (with extensive discussion) in Ramos v. State, 457 So.2d 492 (Fla. 3d DCA 1984) amounts to just that. To avoid this result I would instead read the "question[s] of law" which the state may review by cross-appeal under section 927.07(4) to be confined only to evidentiary issues and the like which may arise in a new trial if the defendant succeeds in securing one on his appeal. Cf. Walker v. State, 459 So.2d 333 (Fla. 3d DCA 1984) (issues on state's cross-appeal not considered since conviction affirmed). In other words, I would have granted the motion to dismiss the cross-appeal which the court earlier denied.
The defendant might accomplish this even if the opinion reverses for a new trial on the main appeal, but reinstates a higher charge on the cross-appeal which the defendant would prefer not to face.
Only in the extremely unlikely event that the defendant wishes to accept a new trial ordered on his successful appeal on higher charges required by a reversal on a successful cross-appeal is it even conceivable that a cross-appeal on sufficiency grounds may have any efficacy at all.
I must also express my disagreement with the basis upon which the court declines to consider the state's application to review the reduction of the charge by certiorari. Since the review is sought of the terms of a final judgment of conviction, rather than an interlocutory order as in State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), certiorari does not lie as a matter of law. In State v. C.C., 449 So.2d 280, 282 (Fla. 3d DCA 1983), this court en banc adopted the concurring panel opinion of the present writer which, at 449 So.2d 281, n. 4, specifically so stated. Thus we have no "discretion" to grant certiorari even if we wanted to — which I don't.
Contrary to the suggestion in State v. D.C.W., 426 So.2d 970, n. 1 (Fla. 4th DCA 1982), I think it obvious that the court cannot save an appeal from a final judgment which it has no jurisdictional authority to consider by treating it as a petition for certiorari. Stein v. Darby, 134 So.2d 232 (Fla. 1961); Jacksonville T. K.W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290 (1894); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976); 3 Fla.Jur.2d Appellate Review § 467 (1978).
449 So.2d at 281, n. 4.
The court does not indicate upon what basis it has decided, in its "discretion," to deny consideration of the merits of the purely legal and highly decisive question of whether the evidence supports the first degree murder verdict. But see Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (discretion must be based on consistent, cognizable principles of decisionmaking).
The fact that, I think, no such basis can be articulated shows clearly that the use of "certiorari" would be nothing more than an unauthorized judicially-created substitute for a right to appeal that the legislature has seen fit not to create.