
    STATE of Florida, Appellant, v. Douglas A. SEXTON, Appellee. STATE of Florida, Appellant, v. Kip G. BOSS, Appellee.
    Nos. 72-946-72-948.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1973.
    Rehearing Denied Oct. 30, 1973.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellant.
    William C. Gregg, III, Clearwater, for appellee Ross; N. David Korones, of Phillips, McFarland, Gould & Korones, Clearwater, for appellee Sexton.
   BOARDMAN, Judge.

Appellant, State of Florida, in these three consolidated interlocutory appeals, (Rule 4.2, F.A.R., 32 F.S.A. entitled “Interlocutory Appeals”) seeks review of the order of the trial court granting appellees’, Sexton’s and Ross’, motions to suppress evidence procured as a result of an unlawful search and seizure.

Appellees filed a motion to dismiss the appeals asserting the same were untimely and the appellant filed a traverse to the said motion.

The sole point for consideration by this court is whether the appeals are filed timely.

The chronology and sequence of events in the trial court show that in case number 72-946, Sexton was charged by the state attorney with possession of marijuana; and, in case number 72-947, he was charged with possession of cocaine; in case number 72-948, Ross was charged by the state attorney with possession of marijuana. Ap-pellees filed separate motions to suppress the evidence in each of the three cases.

The Honorable Charles R. Holley, circuit judge, upon due notice having been given, and after hearing the said motions argued orally, on October 11, 1972, granted the appellees’ motions to suppress the evidence. On November 13, 1972, notice of interlocutory appeal was filed by the state with the clerk of the Circuit Court in and for the Sixth Judicial Circuit of Pinellas County, in each of the cases. Upon motion of the state, the Honorable William A. Patterson, circuit judge, very properly entered an order consolidating the cases on November 17, 1972, directing that only one transcript of record be prepared and one brief be prepared for the purpose of appeal. The case has been orally argued before this court and the record on appeal has been read and given full consideration.

The State of Florida, by statute and rule, is authorized to appeal from the pretrial order entered herein by the trial judge suppressing the evidence obtained by the search and seizure. Florida Statutes, Section 924.071, F.S.A., provides that:

“The state may appeal from a pretrial order . . . suppressing evidence obtained by search and seizure, ...”

F.A.R., Rule 6.3, sub. b, 32 F.S.A., provides that:

“Appeals pursuant to Section 924.071, Florida Statutes 19$7, shall be taken within the time prescribed in subsection a above, or prior to the commencement of the trial whichever is sooner. The procedure for such appeals shall be as provided in Rule 4.2. . . . ”

Subsection a of Rule 6.3, supra, provides:

“An appeal may be taken by the state only within 30 days after the order or sentence appealed from is entered, . . ."

The law is well settled in this state that filing of notice of appeal is jurisdictional. See Evans v. State, Fla.App.1971, 255 So.2d 711.

Appellant, after oral argument here, submitted in a letter accompanying a supplemental pleading filed with the clerk of this court (notice thereof was given ap-pellees by mail — no objection or response was filed thereto by either of the appellees) that the date of the order from which the state is appealing was signed by the trial judge on October 13, 1972, If such be so, then, the appeal was filed timely. The appellees, on the other hand, contend that the starting date is October 11,1972. If this be so a fortiori, the appeal is filed untimely, the notice of interlocutory appeal having been filed on November 13, 1972.

After oral argument we permitted the filing by the state of a supplemental pleading to afford full opportunity for the state to substantiate its contention that the appeal was filed timely and to insure that substantial justice was accorded both parties.

The sole question for our determination is on what date did the appeal time commence to run in the case sub judice. After thorough scrutiny of the record and files and our research, we have reached the conclusion, based on the record before us, that the date the appeal time commenced to run is October 11, 1972 and not October 13, 1972 as is contended by the state.

The record before us leads to no other determination. The trial judge signed the minute book entry granting appellees’ motions to dismiss; the date appearing on the minute book entry shows it to be October 11, 1972. A signed minute book entry is appealable. See Bull v. Roy, Fla.App.1966, 191 So.2d 285.

In addition, the notice of interlocutory appeal filed by the appellant in each case recites that the order appealed was granted by the trial judge on October 11, 1972, and and recorded in circuit court minute book 94, page 195, Pinellas County, on October 11, 1972. The record speaks for itself and, based on the applicable statute and rules, supra, the contention of the state that the order was signed by the trial judge on October 13, 1972, is not supported by the record.

Accordingly, appellees’ motion to dismiss the appeals must be and is granted, and the appeals are

Dismissed.

McNULTY, J., concurs in conclusion only.

MANN, C. J., concurs specially.

MANN, Chief Judge

(concurring specially).

I concur in the result for reasons which require my warning against the practice of relying on minute book entries as affecting 'appeal time.

If the question were novel, I would hold this appeal, taken before entry of a written order, to have been taken as of the date the written order was entered. The Supreme Court of the United States so held in Lemke v. U. S., 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3, reasoning that a rule providing that “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Rule 3.2(c), F.A.R., says in part, “Deficiencies in form or substance in the notice of appeal shall not be jurisdictional and shall not be ground for dismissal of the appeal unless it be clearly shown that the complaining party was misled or prejudiced by such deficiencies.” But our Supreme Court held, in Jenkins v. Lyles, Fla.1969, 223 So.2d 740, that a written order entered September 12, 1968, did not validate a prematurely taken appeal purporting to seek review of that order after oral pronouncement. The federal practice seems to me to be much more practical. See 8A Moore, Federal Practice § 37.05 [2]; Markham v. Holt, 5th Cir. 1966, 369 F.2d 940.

With regard to the effect of a minute book entry, the Florida rule is still unclear. In my view the better interpretation of the confusing case law is that of Mr. Justice Ervin, who, in State v. Kahler, Fla.1969, 224 So.2d 272, at 275, concurred specially in the allowance of an appeal from a signed minute book entry where the trial judge had made it clear that a written order would not he entered. He said, “The State should not be placed in an impossible position by this rule in respect to its right to a review. If it is apparent the trial judge within a reasonable time will enter a written order or judgment dismissing an information, the State should await the entry of such order before taking an appeal within the 30 days allowed by the rule. But if it becomes obvious, as in these cases, the trial court will do no more than orally quash or dismiss an information or direct his clerk to make a minute entry to that effect, then the State should be permitted to take an appeal from such oral or minute entry ...”

Whether the federal precedents were argued in Jenkins v. Lyles I do not know. If they were and were rejected, I would think this decision ought to stand. If not, I would think the question one of great public interest worthy of certification.

The truth is that minute books, while of interest to historians, are not the basis on which counsel in a particular case determine critical dates. These books are customarily signed • later, dated as of the earlier ruling, and as a practical matter there is no way to be sure when the signature was affixed. I agree with the Court’s reasoning in Kahler, and with Mr. Justice Ervin’s special concurrence. It ought not be necessary to seek mandamus to compel the issuance of a formal order, and under those circumstances a signed minute book entry should afford a basis of appeal. But in the normal case the appealable order should be that separately written, stamped by the Clerk when entered, customarily furnished to both counsel, readily available as the evidence of critical dates. As I read the cases, such orders are still considered the basis for appellate review, and it is not open, for example, to some unsuccessful litigant to rummage around and determine that when an appeal was taken from such an order there was already a signed minute book entry more than thirty days old. That implication should not be read into Judge Boardman’s opinion.

I follow the law with some unhappiness, and would change it if I could.  