Opinion
No. 7025.
November 4, 1966. Rehearing Denied November 30, 1966.
Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
In this case Notice of Appeal was not filed or recorded until 102 days after the date of judgment and sentence appealed from. Obviously, therefore, this Court has no jurisdiction. The Notice of Appeal was "received" by the Clerk of the Circuit Court within 90 days from the date of judgment and sentence, but was not filed by the Clerk, presumably because neither a filing fee had been deposited with said Clerk to defray the costs payable to the appellate court Clerk nor had defendant below been adjudicated insolvent so as to require the State to pay such costs. One of the latter is required by Criminal Rule 6.4, Florida Appellate Rules, 31 F.S.A., which 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, which may be by a check or money order payable to the clerk of the appellate court, with the clerk of the lower court unless the appellant is adjudged insolvent prior to the time of such filing * * *." (Emphasis supplied).
The burden was upon defendant below to bring himself within the provisions of said Criminal Rule 6.4, which he failed to do.
The appeal in this case is therefore —
Dismissed.
LILES, Acting C.J., and PIERCE and KANNER, (RET.), JJ., concur.