267 So. 2d 360 | Fla. Dist. Ct. App. | 1972
ON MOTION TO DISMISS
The original notice of appeal was filed within thirty days of the filing of an order denying a post-trial “Motion to Dis
The question now becomes whether the amended notice of appeal, which sought to review the final judgment, is valid. It is. F.A.R. 3.2(c) provides that “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.” The State does not claim prejudice, and none appears. Allowing the amended notice to stand is in harmony with State ex rel. Poe v. Allen, Fla.1967, 196 So.2d 745 at 746, in which Mr. Justice Drew’s opinion quotes approvingly 3 Barron & Holtzoff, Federal Practice and Procedure § 1302.1:
“ ‘Where the appeal is erroneously taken from the order denying the motion, rather than from the judgment, the sound course undoubtedly is to treat this technical error as harmless, and to consider
the appeal as if it were from the judgment.’ ”
See also 6A Moore, Federal Practice § 59.-15.
An appellant in a criminal proceeding is no less entitled to the interpretation which will result in the just consideration of his claims.
Motion denied.