
    STATE of Florida, Appellant, v. Leslie ERBER, et al., Appellees.
    No. 89-1528.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1990.
    Rehearing Denied May 31, 1990.
    Melanie Ann Hines and Marty E. Moore, Asst. Statewide Prosecutors, Tallahassee, for appellant.
    Paul B. Johnson of Johnson & Johnson, Tampa, for appellee Leslie Erber.
    Roma W. Theus, II, and Manuel L. Dob-rinsky of Holland & Knight, Miami, for appellee Orval Gould.
    Barry A. Cohen, Tampa, Mark King Le-ban of Law Offices of Mark King Leban, P.A., and Terrence J. McWilliams, Miami, for appellee Jack R. Casagrande.
    Mark King Leban of Law Offices of Mark King Leban, P.A., and James Jay Hogan and Hy Shapiro, of Hogan, Greer & Shapiro, Miami, for appellee Rocco Velocci.
   ON MOTIONS TO DISMISS/TRANSFER

COWART, Judge.

This case involves a question of venue of an appeal or jurisdiction of a district court of appeal.

The First District Court of Appeal has jurisdiction over appeals from the Eighth Judicial Circuit which includes the circuit court of Alachua County, Florida. The Fifth District Court of Appeal has jurisdiction over appeals from the Fifth Judicial Circuit which includes the circuit court of Marion County, Florida. Judge Yawn, a retired circuit judge residing in Alachua County, was temporarily assigned by the Chief Justice of the Florida Supreme Court to the Fifth Judicial Circuit to handle the criminal case of State of Florida v. Leslie Erber, et al., which was filed and then pending in the Fifth Judicial Circuit in and for Marion County, Florida. First, Judge Yawn entered an order dated June 28, 1989, changing the venue of the case to the Eighth Judicial Circuit in and for Alachua County, Florida. There is no contest or challenge to the legality of this order changing venue. Thereafter, Judge Yawn entered an order dismissing two counts of the amended information in the transferred case. The State appealed the dismissal order and filed its Notice of Appeal in the Fifth Judicial Circuit in and for Marion County, and the appeal has been lodged in this court, the Fifth District Court of Appeal. The defendants have moved this court to dismiss the appeal on the grounds that the appeal of the order of dismissal entered after the change of venue should have been filed in the circuit court of Ala-chua County and the appeal lodged in the First District Court of Appeal; alternatively, the defendants argue that this court is without jurisdiction to review an order in a case in a circuit court in the Eighth Judicial Circuit and that this appeal should be transferred to the First District Court of Appeal.

Being retired, Judge Yawn had no jurisdiction to act as a circuit court judge in the Eighth Judicial Circuit or any other judicial circuit in this or any other case, except upon special assignment by the Chief Justice. Under the order of assignment of the Chief Justice, Judge Yawn had jurisdiction only to act as a circuit court judge in the Fifth Judicial Circuit in the case of the State of Florida v. Leslie Erber, et al.

Upon entry of a proper order for a change of venue in a criminal case, jurisdiction over the case vests in the transferee court and thereafter it would appear that the transferor court is without jurisdiction to enter valid orders in the transferred case. Although there is some ancient authority for the proposition, we reject the State’s position that the order for a change of venue is not effective until the court clerk has complied with section 47.172, Florida Statutes, and Florida Rule of Criminal Procedure 3.240(f), and has transferred all necessary court files and papers and copies of records to the transferee court.

However, at this juncture, this ease presents an interesting dilemma. If one focuses on an order of dismissal entered in a case pending in the Eighth Judicial Circuit in and for Alachua County, and the object of the appeal is to have the order in that case quashed or reversed because it was entered by an assigned judge acting without jurisdiction beyond the territorial limits of his assignment, the appeal of the order should be to the First District Court of Appeal and this case should be transferred there for a decision. On the other hand, if one focuses on an assigned trial judge of the Fifth Judicial Circuit in and for Marion County, Florida, and the object of the appeal is to have an appellate court with jurisdiction over that trial judge adjudicate that the trial judge was without authority to enter an order in a case pending in the Eighth Judicial Circuit in and for Alachua County, the appeal and review of the legality of the judge’s act would appear to be with the Fifth District Court of Appeal.

Two district courts of appeal appear to have issued conflicting decisions based somewhat on the difference between these two views.

In University Federal Savings & Loan Assoc. v. Lightbourn, 201 So.2d 568 (Fla. 4th DCA 1967) and Palm Beach County v. Rose, 337 So.2d 985 (Fla. 4th DCA 1976), the Fourth District held that because the circuit court within its district had transferred venue to another circuit court, the transferring court could enter no further orders on other aspects of the case and that because the transferee court was outside the Fourth District, the appellate proceedings should be transferred to the appellate district having jurisdiction over the transferee circuit court.

In Raymond, James & Associates, Inc. v. Wieneke, 479 So.2d 752 (Fla. 3d DCA 1985) however, the Third District disagreed with Lightbourn and Rose and held that despite a change of venue from a circuit court within the Third District to one outside the Third District, the Third District was the proper appellate court to review the propriety of an order (compelling arbitration) issued by the transferor circuit court following the change in venue. The court explained:

... implicit in any ruling of an appellate court that the circuit court acted improperly when, after transferring venue, it continued to act, is that the appellate court had the jurisdiction ab initio to determine the propriety of the action of the circuit court within its territorial boundaries. Thus, the Fourth District, rather than being an inappropriate court to entertain the proceeding before it, is shown, by its own action, to be the appropriate court. Transfer to another district was as unwarranted in Lightbourn and Rose as it is here.

479 So.2d at 754.

Conceptually, it is difficult to separate a judicial order from the act of the judge who entered it or to separate the judicial act of entering an order from the order entered. However, if a distinction is possible, and helpful, or necessary, it would appear that the correct purpose of an appeal is to review the legality of an order entered in a cause pending in a trial court over which the reviewing court has appellate jurisdiction, rather than to review the legality of the act of a trial judge of a court over which the appellate court has reviewing jurisdiction when that trial judge enters an order in a case in a court in which the trial judge does not have jurisdiction to act and over which the appellate court does not have review jurisdiction.

While the answer to the underlying substantive issue on appeal appears to be plain, our conclusion on the procedural question compels us to, and we do hereby, transfer this appeal to the First District Court of Appeal pursuant to Florida Rule of Appellate Procedure 9.040(b) and State ex rel Shevin v. Rawls, 290 So.2d 477 (Fla.1974).

CASE TRANSFERRED.

DANIEL, C.J., concurs.

SHARP, W., J., dissents with opinion.

W. SHARP, Judge,

dissenting.

I respectfully dissent. Before this cause is actually transferred to the Eighth Judicial Circuit from the Fifth Judicial Circuit jurisdiction remains in the transferring court. Orders entered by the transferring judge, until transfer is completed, should be ruled on by the District Court of Appeal governing the transferring court: the Fifth District Court of Appeal in this case.

The record establishes that Judge Yawn, a retired judge, was empowered to try this cause as a circuit judge for the Fifth Judicial Circuit. On July 13, 1989, Judge Yawn dismissed Counts III and IV of a multi-count information filed against six defendants (Erber, Constantino, Robson, Velocci, Casagrande and Gould), appellees here. The basis for his dismissal was that the applicable statute of limitations had run on Counts III and IV. The state filed a notice of appeal on July 27 with the Fifth Circuit, challenging those rulings. Fla.R.App.P. 9.140(c)(1)(A).

While the cause was pending here, appel-lees filed motions to dismiss the appeal because on June 28, 1989, Judge Yawn granted appellees’ motion to change venue, which was not opposed by the statewide prosecutor. The court ordered a change of venue from Marion County (in the bailiwick of the Fifth District Court of Appeal) to Alachua County (in the bailiwick of the First District Court of Appeal).

This order is not a part of our record on appeal. It was attached as an exhibit to Casagrande’s and Velocci’s motions to dismiss. The state agrees that such an order was entered, but it points out the record shows that an order of transfer was not transmitted as required by section 47.172, Florida Statutes and Florida Rule of Criminal Procedure 3.240(f), and thus the change of venue was not ever effected. We therefore have jurisdiction to rule both on the motion to dismiss and on the order dismissing the counts in the amended complaint.

Swepson v. Call, 13 Fla. 337 (1869) is ancient, but still controlling precedent. The trial judge sitting in the Second Circuit in Leon County, disqualified himself and entered an order transferring the cause to the Third Judicial Circuit in Columbia County. Evidently that circuit judge also disqualified himself and transferred the cause to the Fourth Judicial Circuit in Du-val County. That court entered an injunction and appointed a receiver.

The supreme court ruled that neither the Third nor the Fourth Judicial Circuits received jurisdiction of the cause because venue was never effectively transferred from the first court.

It also follows that the court named in the order of transfer cannot take the jurisdiction and hear, try and determine a cause until the removal is effected, and this does not occur until ‘the cause,’ to wit: the record, pleadings and papers, find a lodgment in the proper clerk’s office in the proper circuit. The theory that the jurisdiction of a cause always exists somewhere, and is never in abeyance, is certainly correct, and yet the jurisdiction of the Circuit Court over a cause may be perfect, while the power of the parties and of the judge may be in abeyance by reason of the disqualification of the judge, until the proper steps are effectively taken and the cause removed to some circuit whereof the judge is qualified to hear it.

The judge cannot know that a cause is pending in any county in his circuit except by the evidence of the clerk’s endorsement upon the papers. Judgments and decrees can never be entered until after the filing of the pleadings with the clerk. We know of no mode of ascertaining whether a suit is pending anywhere, except by inspecting the records of papers in the proper clerk’s office. In the pursuit of such an inquiry, if we find no papers or record in the office showing the existence of a suit, and the clerk informs us that he knows of no such cause, it would be idle to tell us that a suit is pending in that county. In a case like the present, how is the judge to know that a cause has been removed to his circuit, unless the certificate of the order of transfer appears in the record? and how can he know that such an order has been made unless he finds it in the proper office? The order of transfer directs, and the law requires, that all the papers be transmitted ‘to the clerk of the court, to which said cause may be ordered to be transferred, together with a certificate of the order of transfer.’ It seems to us that the law requires that the papers be delivered into the possession of the clerk before the case is ‘transferred to’ the proper court. If a party petition for a transfer of a cause and procure the entry of the proper order, and then neglect or refuse to ‘pay all costs’ as required by the law referred to, thus suspending all proceedings in that court, the clerk cannot be compelled to transmit the papers. Can it be said, in such case, that any other court has become possessed of the cause, with the power to hear and determine it? or that, even if the costs have been paid, the court to which it may have been ordered to be sent has any power to compel the clerk to transmit the papers or to control the papers or records which have never been so transmitted to its custody? The law in the case points out certain steps to be taken in order to effect a change of the jurisdiction from one circuit to another. Without the statute, there would be no power which the law could recognize to transfer the jurisdiction and confer it upon another court, and until the law is complied with in all essential particulars, the jurisdiction is not affected. We are, therefore, unable to conclude that this cause has been ‘removed to’ the Circuit Court of Columbia county, or that the judge of the Third Circuit has had any control over the cause, and that the cause is yet properly pending in the Leon Circuit Court. If the pre-requisites entitling the party to a removal are not complied with, the judge of the Second Circuit may, on the proper application, revoke the order already made, and make another order to remove the cause to a proper circuit.

Swepson at 354-355.

The transfer of venue statutes relied upon by the Florida Supreme Court in Swepson have not been substantially changed since 1869. Section 47.172, Florida Statutes, requires the clerk of the court of the transferring court to certify the record and transmit the papers in the cause to the receiving court. Section 47.191 provides no change is effective until costs are paid. Presumably, the judge who enters a transfer of venue order could reconsider and change his ruling until the transfer is actually accomplished by the clerk.

Clearly, the record in this cause still remains in Marion County. There is no transfer documentation from Alachua County and, in fact, Judge Yawn has entered other orders in the cause (a stay of discovery and a continuance of the trial on the remaining counts) since ruling on venue.

In the first case of Raymond, James & Associates v. Wieneke, 479 So.2d 752 (Fla. 3d DCA 1985), the Third District faced a similar situation and arguments similar to those made by appellees here. A trial judge sitting in the Third District entered an order transferring the case to another circuit court within the Second District’s jurisdiction. The Third District denied the appellee’s motion to dismiss, based on Swepson.

[T]he circuit court’s transfer of venue (although perhaps affecting its right to proceed further in the case) does not affect the appellate court’s right to review the post transfer actions of a circuit court situated within the appellate court’s territorial boundaries.

As in Swepson, the transfer of the cause was not effective at the time the appeal was taken.

In the second case of Raymond, James & Associates v. Wieneke, 479 So.2d 754 (Fla. 3d DCA 1985), the court vacated the court’s order (denial of a motion to compel arbitration) in a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) on the ground that after entering an order transferring venue, the transferring court should not simultaneously, or thereafter, rule on a motion to dismiss or on any aspect of the merits of the case.

It could also be argued that the state here should have sought a petition for writ of quo warranto or prohibition. See State v. Weinstein, 353 So.2d 1251 (Fla. 3d DCA 1978). However, prior to the actual transfer of venue out of our district court’s bailiwick, the remedy of appeal to this court is available. See The Florida Election Commission v. Smith, 354 So.2d 965 (Fla. 3d DCA 1978); Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81 (Fla. 3d DCA 1975); Spalding v. Von Zamft, 180 So.2d 208 (Fla. 3d DCA 1965). In University Federal Savings and Loan Association of Coral Gables v. Lightbourn, 201 So.2d 568 (Fla. 4th DCA 1967), the transfer of venue had been physically accomplished, although that fact is not clear in Palm Beach County v. Rose, 337 So.2d 985 (Fla. 4th DCA 1976).

The practicalities of the situation in this case illustrate the correctness of the Third District’s position on the jurisdictional issue. Pursuant to Florida Rule of Appellate Procedure 9.140(c)(2) the state has 15 days to appeal the dismissal of counts of an information. But a physical transfer of this case, complete with record and certificates, may take more time than that. Further, how can the state file an appeal in Alachua County before Alachua County has any record or number for the cause? The clerk in Alachua would have no place to file the notice of appeal and no record to transmit to the First District Court of Appeal, as is presently the situation here.

In sum, we should deny the motion to dismiss, and quash the trial judge’s dismissal of the counts being appealed here. 
      
      . Florida Rule of Appellate Procedure 9.140(c)(1)(A).
     
      
      . See Ammons v. State, 9 Fla. 530 (1861).
     
      
      . This converse proposition has been adjudicated in civil cases and we see no reason the rule should be different in criminal cases. See, e.g., Davis v. Florida Power Corp., 486 So.2d 34 (Fla. 2d DCA 1986); Raymond, James & Associates, Inc. v. Wieneke, 479 So.2d 752 (Fla. 3d DCA 1985); Church of Scientology v. Cazares, 401 So.2d 810 (Fla. 2d DCA 1981).
     
      
      
        .See Swepson v. Call, 13 Fla. 337 (1869).
     
      
      . Neither party cites to Card v. State, 497 So.2d 1169 (Fla.1986) or argues that, in entering the appealed order of dismissal, Judge Yawn might have been acting as a de facto circuit judge in the Eighth Judicial Circuit in Alachua County. A chief justice’s order of assignment authorizing a retired judge to act may be more substantive than a similar order of assignment which directs a duly elected and acting circuit judge to sit in a different circuit. Even if a de facto judge concept applies, appeal should be to the appellate court with jurisdiction to review the case in which the questioned order was entered.
     
      
      . Raymond, James & Associates v. Wieneke, 479 So.2d 752 (Fla. 3d DCA 1985).
     
      
      . Raymond, James & Associates v. Wieneke, 479 So.2d 754 (Fla. 3d DCA 1985).
     