685 So.2d 1312, Allston v. State, (Fla. App. 2 Dist. 1996)

Robert F. Allston, Petitioner,

STATE of Florida, The Honorable William Nelson, Twentieth Jucicial Circuit Judge, The Honorable James Thompson, Twentieth judicial Circuit Judge, The Hnorable Charlie Green, Clerk of Court, Twentieth Judicial Circuit, Frank Alderman, III, and John Hendry, Respondents

After notice of appeal from order was filed in the Twentieth Judicial Circuit Court, James Thompson, J., second order was entered, holding that prior order was not appealable, and that notice of appeal could not be filed with District Court of Appeal. Movant petitioned for writ of mandamus. The District Court of Appeal held that filing of notice of appeal divested circuit court of jurisdiction.

Petition granted.

1. APPEAL AND ERROR key# 436

30 ---

30VIII Effect of Transfer of Cause or Proceedings Therefor

30VIII(A) Powers and Proceedings of Lower Court 30k436 Transfer of jurisdiction in general.

Fla. App. 2 Dist. 1996.

Trial court was divested of jurisdiction upon filing of notice of appeal from trial court's prior order; thus, due to trial court's second order determining that prior order was not appealable, and purporting to prevent notice of appeal from being filed in District Court of Appeal, mandamus would issue to require trial court to forward that notice of appeal. West's F.S.A. R. App.P.Rule 9.110(d)

2. CLERKS OF COURTS Key # 67

79 ---

79k64 Powers and Proceedings in General

79k67 Ministerial functions and acts.

Fla.App. 2 Dist. 1996.

Forwarding of notice of appeal is "ministerial duty" of clerk of circuit court. West's F. S. A. R. App. P. Rule 9.110(b).

See publication Words and Phrases for other judicial constructions and definitions.

Robert F. Allston, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Respondents.

PER CURIAM

Robert Allston petitions this court for a writ of mandamus compelling Charlie Green, the clerk of the circuit court, to forward to this court his notice of appeal of an order entered October 14, 1994.

Allston filed a notice of appeal of the trial court's October 10, 1994, order with Judge James R. Thompson. Judge Thompson entered an order rendered November 7, 1994, which determined the October 14, 1994, order was not appealable and purported to prevent Allston's notice of appeal from being filed in this court.

*1313. [1] [2] Allston's notice of appeal met the threshold requirements of Florida Rule of Appelate Procedure 9.110(d) and, upon filing, divested the circuit court of jurisdiction. Edward J. DeBartolo Corp. v. Dryvit Systems, Inc., 368 So. 2d 85 (Fla. 2d DCA 1979). See also Alfonso v. Department of Environmental Regulation, 616 So. 2d 44 (Fla 1993); Williams v. State, 324 So. 2d 74 (Fla. 1975). In Alfonso v. Department of Environmental Regulation, the supreme court explained that:

[A]n appellate court's jurisdiction is invoked by a timely filing of a notice of appeal or a petition for certiorari in either the lower court that issued the order to be reviewed or the appellate court which would have jurisdiction to review the order.

616 So. 2d at 47. Therefore, Allston's filing of his notice with the circuit court complied with rule 9.110(b). Forwarding a notice of appeal is a ministerial duty of the clerk of circuit court. Martin v. Circuit Court, seventeenth Judicial Circuit, 627 So. 2d 1298 (Fla. 4th DCA 1993). Accordingly, we grant the petition and direct the circuit court to forward Allston's notice of appeal to this court.

BLUE, A.C.J., and QUINCE and WHATLEY, JJ., concur.

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