OMAR MONTERO, PETITIONER,
v.
OAK CASUALTY INSURANCE COMPANY, RESPONDENT
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Omar Montero petitioned for certiorari review of an order dismissing his appeal from county court due to late filing of his initial brief. The Third District Court of Appeal held that appellate division orders dismissing appeals must be entered by a three-judge panel majority, not by a single judge, and therefore quashed the dismissal order.
Orders dismissing appeals must be entered by a majority of a three-judge panel of the appellate division, not by a single judge. A single judge's order dismissing an appeal violates appellate division Rule 1 because such an order is a final determination on the merits, not merely a preliminary matter.
[1] An order dismissing an appeal constitutes a final determination and must be entered by a majority of a three-judge panel of the appellate division.
[2] Matters preliminary to final determination may be decided by individual judges of the appellate division, provided subsequent rules permit.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Perfecting a dissent is the only judicial task of lasting import that an individual appellate judge may embark upon alone. This maxim of collective judicial action governs the undertakings of supreme court justices and judges of the district courts of appeal, and applies with no less force to judges of the appellate division of the circuit courts.”
Establishes the governing principle that appellate judges at all levels must follow rules of collective judicial action for matters of lasting importance, with only dissents permitted to individual judges.
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Join FLexlaw to unlock all legal intelligenceMontero filed an appeal to the appellate division of the Dade County Circuit Court from a Dade County Court decision. His initial brief was filed late…
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FLETCHER, Judge.
Omar Montero petitions for certiorari review of an order of the appellate division of the Dade County Circuit Court, which order dismissed his appeal to the appellate division from the Dade County Court. The dismissal order was predicated upon Montero’s late filing of his initial brief. The order, however, was entered by only one judge of the appellate division, thus, for the reason that follows, we quash the order under review.
The appellate division of the Dade County Circuit Court was established by the Florida Supreme Court rule entitled “Rule 1, Establishment and Defining Jurisdiction of the Appellate Division of the Circuit Court.” The rule provides for cases before the division to be heard on their merits by three-judge panels of the appellate division. The rule also permits “matters preliminary to final determination” to be decided pursuant to other rules to be adopted subsequently. It appears that no subsequent rules have been adopted, although motions to dismiss are assigned to individual judges for determination.
In Melkonian v. Goldvian, 647 So. 2d 1008 (Fla. 3d DCA 1994), we determined that appellate division Rule 1 was violated where an individual judge, acting in his appellate capacity, denied a petition for writ of certiorari for failure to demonstrate a prima facie case. We concluded that only a majority of a three-judge panel could so rule, stating:
“Perfecting a dissent is the only judicial task of lasting import that an individual appellate judge may embark upon alone. This maxim of collective judicial action governs the undertakings of supreme court justices and judges of the district courts of appeal, and applies with no less force to judges of the appellate division of the circuit courts.”
Id. at 1009.
Orders dismissing appeals are of lasting-import. Such an order is not merely “preliminary to final determination,” but is the final determination, the end of the road for that appeal. As a consequence, we conclude that any order of the appellate division which dismisses an appeal, including the subject order, must be entered by a majority of a three-judge panel assigned to the case.
Accordingly, the petition for writ of certiorari is granted and the order under review is quashed.
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Citator
Cited By
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Oceania Joint Venture v. Ocean View OF Miami, Ltd., 707 So. 2d 917 (Fla. 3d DCA 1998)…ks certiorari review of this order denying its motion for reinstatement and asserts that this order is a departure from the essential requirements of the law because Rule 1, as well as this court’s decisions in Montero v. Oak Casualty Insurance Co., 693 So. 2d 1024 (Fla. 3d DCA 1997), and Melkonian v. Goldman, 647 So. 2d 1008 (Fla. 3d DCA 1994), required respondents’ prior motion to dismiss to be heard and ruled upon by a three-judge panel. Oceania further asserts that although it did not assert this infirmity…
Authorities Cited
- Melkonian v. Hon. Murray Goldman, 647 So. 2d 1008 (Fla. 3d DCA 1994)