FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court for the
Judicial Circuit for Pinellas County; sitting in its
Stephen Charles Rogers, pro se.
Moody, Attorney General, Tallahassee, and Christina Z.
Pacheco, Assistant Attorney General, Tampa, for Respondent.
Rogers has petitioned for a writ of certiorari asking us to
quash an order in which the circuit court, sitting in its
appellate capacity, dismissed Mr. Rogers' appeal of the
denial of his amended motion for postconviction relief.
Because the extreme sanction of dismissal is not warranted
under the circumstances of this case, we grant the petition
and quash the order of dismissal.
Rogers filed a pro se notice of appeal with the circuit court
on July 11, 2018. No filing fee was required for the appeal,
but the circuit court issued an order requiring Mr. Rogers to
pay a "preparation fee" totaling $925.30. Mr.
Rogers was given ten days to either pay the fee, establish a
payment plan, or file for a determination of indigent status.
Failure to take such action within ten days, the order
warned, would result in dismissal of the appeal.
order to pay shows that a copy of the order was sent to Mr.
Rogers, but he alleges that he never received a copy. Mr.
Rogers did not pay the fee or file for a determination of
indigent status, and the circuit court dismissed the appeal
on August 23, 2018.
reviewing a petition for certiorari challenging an order of a
circuit court sitting in its appellate capacity, we are
limited to "assessing whether the circuit court afforded
procedural due process and observed the essential
requirements of the law." Altman v. State, 41
So.3d 1030, 1031 (Fla. 2d DCA 2010) (quoting Gould v.
State, 974 So.2d 441, 444 (Fla. 2d DCA 2007)). "A
ruling constitutes a departure from the essential
requirements of [the] law when it amounts to 'a violation
of a clearly established principle of law resulting in a
miscarriage of justice.'" Id. (alteration
in original) (quoting Gould, 974 So.2d at 445).
well established that the sanction of dismissal is an extreme
sanction and "should be employed sparingly and only
after repeated violations or contumacious disregard of a
court's orders." Id. at 1034 (quoting
Krebs v. State, 588 So.2d 38, 38 (Fla. 5th DCA
1991)). It is also well established that Florida's public
policy favors resolving cases on their merits. Fla.
Wellness & Rehab. Ctr., Inc. v. Mark J. Feldman,
P.A., 262 So.3d 234, 237 (Fla. 3d DCA 2018).
Florida Rule of Appellate Procedure 9.410(a) provides:
After 10 days' notice, on its own motion, the court may
impose sanctions for any violation of these rules, or for the
filing of any proceeding, motion, brief, or other paper that
is frivolous or in bad faith. Such sanctions may include
reprimand, contempt, striking of briefs or pleadings,
dismissal of proceedings, costs, attorneys' fees, or
an appellate court clearly possesses the authority to dismiss
an appeal as a sanction where appropriate, this extreme
sanction should be "reserved for the most ¶agrant
violations of the appellate rules." Forehand v.
State, 264 So.3d 333, 335 (Fla. 1st DCA 2019) (citing
Lindsey v. King, 894 So.2d 1058, 1059 (Fla. 1st DCA
2005)); see also Fla. Wellness & Rehab.
Ctr., Inc., 262 So.3d at 237 ("[D]ismissal is an
extreme sanction that is reserved for only the most flagrant
violations of procedural rules."). "Implicit within
the concept is some degree of disrespect for court processes
bordering on, if not explicitly constituting, willful
noncompliance." I Creatives, Inc. v. Premier
Printing Sols., Inc., 163 So.3d 606, 608 (Fla. 3d
DCA 2015); compare Rodriguez v. Rodriguez,
640 So.2d 133, 134 (Fla. 3d DCA 1994) (dismissing appeal
after husband's "flagrant noncompliance with the
trial court's order" where husband willfully refused
to pay child support and flagrantly failed to comply with a
contempt order requiring that he either pay a purge amount or
surrender himself), with Altman, 41 So.3d at 1034-35
(determining that dismissal for failure to timely file
initial brief constituted departure from the essential
requirements of the law because the failure to comply was not
sufficiently egregious to justify dismissal), and Fla.
Wellness & Rehab. Ctr., Inc., 262 So.3d at 237
(quashing order of dismissal where petitioner negligently
failed to timely pay invoice issued by clerk's office
warning of dismissal for failure to pay by deadline).
Rogers filed a timely notice of appeal with the circuit
court. The circuit court issued an order giving Mr. Rogers
ten days to pay a fee of $925.30 for preparation of the
appellate record, establish a payment plan, or file for a
determination of indigent status. The order, rendered August
10, 2018, warned that failure to take ...