
    James Wayne THOMAS, Petitioner, v. The CITY OF GAINESVILLE, a Municipal corporation, Respondent.
    No. L-94.
    District Court of Appeal of Florida. First District.
    April 1, 1969.
    Edward L. Bush of Law Offices of Philip Barton, Gainesville, for petitioner.
    Allison E. Folds, of Fagan, Crouch & Anderson, Gainesville, for respondent.
   JOHNSON, Judge.

Petitioner has filed his petition for writ of certiorari directed to an order of the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, dismissing his appeal there which he was taking from a judgment and conviction in the Municipal Court of the City of Gainesville.

The dismissal of the appeal by the Circuit Court was based solely on the ground that Petitioner had failed to timely deposit his filing fee required for taking of the appeal. It is undisputed that the notice of appeal document itself was timely received by the Clerk of the Municipal Court. The only issue presented in the petition for writ of certiorari is whether the payment of the filing fee for appeal from a judgment in the Municipal Court was mandatory and jurisdictional to perfect the appeal.

The Municipal Court order was rendered June 28, 1968. Notice of appeal was presented to the Clerk of the Municipal Court timely, but the filing fee of $3.50, as required by F.S. 28.241(3), F.S.A. was not deposited until October 16, 1968, which was 110 days after the date of the order appealed, which was long after the time allowed for taking an appeal. Although the notice of appeal was received timely by the Clerk, it was not marked “filed” until the Clerk received the filing fee.

The motion of. the City to dismiss the appeal because of lack of jurisdiction due to untimely filing of the notice of appeal was granted and the appeal dismissed, hence this petition for certiorari.

The sole question is an interpretation of the rule and statute. Is the paying of the filing fee to the Clerk a prerequisite to vesting jurisdiction in the appellate court?

The Second District Court of Appeal of Florida has held in two cases, Woolley v. State of Florida and Clark v. State of Florida that the matter was jurisdictional and dismissed the appeal. In the Dee Woolley case, supra, the court cited Rule 6.4, Florida Appellate Rules, 32 F.S.A., as follows:

“ ‘An appeal may be taken only by filing with the clerk of the lower court a notice in writing stating that the appellant appeals from a judgment, order, ruling or sentence, as the case may be, and if the appeal be taken by a defendant, by depositing a filing fee in the amount prescribed by law * * * unless the appellant is adjudged insolvent prior to the time of such filing * * [Emphasis added.]”

In the Woolley case, the notice of appeal had been received by the Clerk, as in the case sub judice, without the filing fee, which was paid eventually, but after the time for taking appeal had expired. The Court said:

“Since the notices were not filed until April 26, 1966, they are untimely as they were filed more than 90 days from the entry of the judgments and sentences sought to be appealed.”

and cited Clark v. State, supra as authority therefor, and the Court sua sponte dismissed the appeals.

Relying upon these two cases, Clark v. State and Dee Woolley v. State, supra, as authority, the circuit court in the case sub judice, dismissed the appeal of the appellant.

The First District Court of Appeal of Florida, in 1958, in the case of State of Florida ex rel. Moore v. Murphree, 106 So.2d 430, however, held a diametrically opposite view to the Second District Court’s decisions cited supra. In the Moore case, the First District Court, speaking through the late Judge Sturgis, said: “Failure to pay the filing fee affects only the public agency or official that is benefited thereby, and in no wise prejudices the adversary.” The court said further that the Legislature had the unquestioned right to fix the time for appeals which became in effect, statutes of limitation, with the additive that the bar to appeal reaches to the jurisdiction of the appellate tribunal and cannot be waived, but that the statute governs and not the rule, and that the statute has been complied with when the notice of appeal has been duly filed.

These are the only three cases we have found decided in Florida, but we do find the question raised and answered in other jurisdictions.

In Citron v. Hazeltine, 227 Or. 330, 361 P.2d 1011, where a statute existed which is very similar to Section 28.241(3), Florida Statute, the Supreme Court of Oregon said the notice of appeal was not filed within the contemplation of the statute until the fee was paid, and therefore, unless the filing fee was paid within the time fixed for taking appeals, the appeal would be dismissed. A long line of Oregon decisions were cited in support thereof. This case was decided in 1961.

However, in Parissi v. Telechron, Inc. 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867, the United States Supreme Court held that failure to pay the filing fee to the clerk within the 30 day period for appeal, if the notice and other necessary documents had been timely filed, did not vitiate the validity of the petitioner’s notice of appeal. This was a 1955 case.

As late as 1963, the Supreme Court of Oregon, in United States National Bank v. Underwriters at Lloyd’s, 382 P.2d 851, reversed its position from that taken in Citron v. Hazeltine, supra, and speaking of the statute requiring the payment of the filing fee when filing notice of appeal, said: “The statutes can be said to intend that the solution to an unpaid filing fee is not to vitiate the document but to collect the fee * * * and that time of payment is secondary to actual payment.” The motion to dismiss the appeal on the ground of failure to pay the fee within the appeal period was denied.

It appears to this court that the better logic and reason is to adhere to this Court’s former opinion in the State of Florida ex rel. Moore v. Murphree case, supra. That as said by the United States Supreme Court in the Parissi case, supra, that if the fees are not paid, failure to dismiss on the ground that payment was not timely, does not leave the rule “without other sanctions.”

By coincidence, the Moore case, supra, originated with the Honorable John A. H. Murphree of the Eighth Judicial Circuit, wherein Judge Murphree denied a motion to dismiss appeal to his court, where the ground therefor was failure to timely pay the filing fee. This court affirmed Judge Murphree.

In the case sub judice, the same Judge Murphree granted a motion to dismiss the appeal to his court because the filing fee as provided by F.S. Section 28.241(3), F.S.A. was not deposited with the clerk of the Municipal Court within the required time, as required by F.S. Section 932.52, F.S.A., and in accordance with the decision of the Second District Court of Appeal of Florida, in the Clark v. State and Woolley v. State, supra. By adhering to our decision in the Moore case, supra, we must this time reverse Judge Murphree, and by so doing, we are in direct conflict with our sister District Court.

The petition for certiorari is therefore granted, and the order dismissing the appeal is quashed and the appeal reinstated and the cause remanded for further proceedings in accordance herewith.

Because of the conflict with the decisions of the Second District Court of Appeal, as pointed out supra, we certify this case to the Supreme Court of Florida for a decision on the question of whether the payment of the filing fee is a jurisdictional prerequisite or not.

SPECTOR, J., concurs.

WIGGINTON, C. J., specially concurs.

WIGGINTON, Chief Judge

(concurring specially).

I am in agreement with the majority opinion which holds that the deposit with the clerk of the filing fee is not a jurisdictional prerequsite to the taking of an appeal guaranteed by the constitution of this state, and that the timely filing of a notice of appeal without the simultaneous deposit of the filing fee is sufficient to vest jurisdiction in the appellate court.

The appeal involved in this case from the Municipal Court of Gainesville to the Circuit Court of Alachua County is controlled by Rule 6.4, Florida Appellate Rules relating to criminal appeals. This rule provides:

“An appeal may be taken only by filing with the clerk of the lower court a notice in writing stating that the appellant appeals from a judgment, order, ruling or sentence, as the case may be, and if the appeal be taken by a defendant, by depositing a filing fee in the amount prescribed by law * * * with the clerk of the lower court unless the appellant is adjudged insolvent prior to the time of such filing; * * * ”

In the case sub judice a proper notice of appeal was timely filed by petitioner in the Municipal Court of Gainesville. The appellant had not been adjudged insolvent, nor was his notice of appeal accompanied by a deposit of the necessary filing fee prescribed by law.

It is a settled principle of law that the timely filing of a proper notice of appeal is a necessary prerequisite to vest an appellate court with jurisdiction under the rules effective in this state. The underlying reason supporting this principle is that the successful party has a fundamental right to the - prompt enforcement of the judgment, and has a personal right to insist that if enforcement of the judgment is to be suspended pending an appeal, that the appeal be commenced within the time required by law. However, jurisdiction vested in the appellate court by the timely filing of a notice of appeal should not be nullified merely because the appellant fails to deposit within the time limited for taking the appeal the necessary filing fee prescribed by the statute relating thereto. Failure of appellant to so deposit the filing fee in no manner affects the rights of the appellee, nor does it prejudice his position in the case. Deposit of the fee as required by the rule is a matter of concern only to the court charged with the statutory duty of collecting it, and has no bearing upon the merits of the judgment sought to be reviewed.

Rule 3.2, Florida Appellate Rules, prescribing the method by which appellate proceedings may be commenced by the filing of a notice of appeal and depositing the filing fee prescribed by law is essentially similar in all material respects to the above quoted Rule 6.4, relating to the taking of criminal appeals. Because of this, decisions construing the rule relating to the commencement of appeals in civil actions are equally applicable to the rule relating to the taking of appeals in criminal actions.

As alluded to by the majority opinion, the precise question involved herein was considered by this court in the civil case of State v. Murphree. In that case the appellant timely filed with the County Judge’s Court of Alachua County a proper notice of appeal, but because of a lack of understanding on the part of the clerk as to the amount of filing fee required, the fee was not deposited within the time limited for taking the appeal. A motion to dismiss the appeal for failure to deposit the filing fee within the time limited for taking the appeal was denied by the circuit court in the exercise of its appellate jurisdiction. If the depositing of the filing fee within the time limited for taking the appeal was a necessary prerequisite to vesting jurisdiction of the appeal in the circuit court, then the court would have been required to dismiss the appeal and its failure to do so would have been reversible error. If on the other hand the depositing of the filing fee at the time of filing the notice of appeal was a procedural requirement only, and was not a necessary prerequisite to vesting appellate jurisdiction in the circuit court, then under the facts disclosed by the record the court properly exercised its discretion in denying the motion to dismiss and permitting the appeal to progress despite the late deposit of the filing fee.

The circuit court’s denial of the motion to dismiss the appeal was affirmed by this court in a decision which clearly held that the deposit of the fee was not a jurisdictional prerequisite to vesting jurisdiction in the circuit court under the statutes and rules of appellate procedure, but that if the proper filing fee is thereafter deposited after the time for commencing the appeal has expired, the appellate court in the exercise of its discretion may refuse to dismiss the appeal. In that case this court said:

“The present rules of appellate procedure are of recent adoption. The former rules, like those now in effect, required payment of a filing fee, but it was set out in a rule that was disconnected with and had no relation to the statute and conforming rules of procedure that simply limit the time for commencement of appeals, which was accomplished by filing the notice of appeal. Time of performance of that act has always been jurisdictional and no discretion whatever is vested in the courts to extend it.
“The situation under the present rules is different. For some unexplainable reason, doubtless by inadvertence, the present rules lump the provisions concerning the filing fee in the same rule that requires a notice of appeal to be filed within the statutory period allowed for appeal.
“The legislature has the unquestioned right to fix the time for appeals. Such laws are in no sense rules of procedure. They have all of the attributes of statutes of limitation governing the commencement of actions, with the additive that the bar to appeal reaches to the jurisdiction of the appellate tribunal and is absolute rather than one which may be waived. The statute rather than the rule governs, and lack of compliance within the time limited vests in the adverse party a fundamental right personal in character. The statute is satisfied when there is brought to the attention of the adverse party, directly or constructively, the fact that within the time allowed an appeal has been commenced, and the vehicle for this purpose is the notice of appeal duly filed.
“Failure to pay the filing fee affects only the public agency or official that is benefited thereby, and in no wise prejudices the adversary. It is primarily on that basis that we hold the learned Circuit Judge properly exercised his discretionary power in this case.”

If a proper notice of appeal is timely filed, this action by the appellant should be sufficient to vest jurisdiction of the appeal in the appellate court. If the appellant fails or refuses to deposit the filing fee as required by the rule upon demand therefor by the clerk of the appellate court, the action may be subject to a stay of proceedings or dismissal for failure to comply with the rule. This is not a jurisdictional but a procedural matter which should be handled in the same manner as any other default in complying with the rules of appellate procedure, and may subject the offending party to such penalty as may be imposed by the court in the exercise of a sound discretion.

It is my view that the Clark and Woolley decisions relied on by appellee in support of the judgment of dismissal constitute a strained interpretation of the rule which is not justified in a system of judicial administration which gives paramount importance to the disposition of causes on the merits rather than upon housekeeping requirements unrelated to the fundamental rights of the parties. The constitutionally guaranteed right of appeal should not be denied merely because of the technical violation of a procedural rule which does not result in demonstrable prejudice to the other party. 
      
      . Woolley v. State of Florida, 193 So.2d 706 (Fla.App.2d, 1966); and Clark v. State of Florida, 191 So.2d 870 (Fla.App.2d, 1966).
     
      
      . Gray v. State, (Fla.App.1966) 184 So.2d 222; State ex rel. Ervin v. Smith, (Fla.1964) 160 So.2d 518.
     
      
      . State ex rel. Moore v. Murphree, (Fla.App.1958) 106 So.2d 430.
     
      
      . Clark v. State, (Fla.App.1966) 191 So.2d 870.
     
      
      . Woolley v. State, (Fla.App.1967) 193 So.2d 706.
     