SABIR ABDUL-HAQQ YASIR, APPELLANT,
v.
HOWARD C. FORMAN, CLERK OF COURTS, APPELLEE

Fla. 4th DCA | 2016-07-13
No. 4D15-2970
CIKLIN, C.J., LEVINE and FORST, JJ., concur.
199 So. 3d 1037 Florida District Court of Appeal, Fourth District (2016) Positive Treatment
Cited by 1 case

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Synopsis

An incarcerated pro se litigant sought reimbursement for copying and postage costs in a public records mandamus proceeding. The trial court summarily denied his motion for relief from judgment without an evidentiary hearing after he failed to meet a procedural deadline due to circumstances of his incarceration. The appellate court reversed, holding that a hearing was required.


Holding

The trial court erred in summarily denying the motion to vacate without an evidentiary hearing. A motion for relief from judgment should not be summarily dismissed unless its allegations fail to establish a colorable entitlement to relief. Appellant's allegations that he did not receive the court's order and was thus deprived of an opportunity to comply due to circumstances beyond his control established colorable entitlement to relief, requiring an evidentiary hearing.


Headnotes

[1] A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege color…

[2] An incarcerated litigant may be awarded reasonable postage, envelope, and copying costs under section 119.12, Florida Statutes.

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Key Quotes

“A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege 'colorable entitlement' to relief.”

Establishes the standard that motions for relief from judgment require a hearing unless they clearly fail to establish colorable entitlement to relief

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Facts & Procedural History

Appellant Yasir, an incarcerated litigant, sought public records from the clerk of courts through mandamus. After this Court reversed the denial of hi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We reverse the trial court’s order summarily denying appellant’s motion for relief from judgment and remand for further proceedings. In Yasir v. Forman, 149 So.3d 107 (Fla. 4th DCA 2014), this Court reversed the denial of appellant’s motion to tax costs in his mandamus proceeding, which had sought to compel the circuit court clerk to comply with his public records request. We explained that, if the clerk’s refusal or delay in responding to the request was unjustified, then appellant would be entitled to costs. Id. at 108. We further explained that, as an incarcerated litigant, appellant could be awarded reasonable postage, envelope, and copying costs under section 119.12, Florida Statutes. Id. (citing Weeks v. Golden, 846 So.2d 1247, 1249-50 (Fla. 1st DCA 2003)).

On remand, appellant filed a motion to tax costs on appeal. This motion was filed on October 30, 2014. Appellant attached to his motion an itemization for all photocopying and postage costs he allegedly incurred litigating the appeal, a grand total of $60.30. On November 5, 2014, the trial court did not address appellant’s motion, and instead entered an order that required appellant to file within sixty days a detailed itemization of all costs he was seeking.

Appellant filed motions requesting a telephonic hearing which were denied. He then filed a motion asking the court to rule on his motion to tax costs on appeal. The trial court entered an order on February 11, 2015, denying the motion to tax costs on appeal explaining that appellant had not complied with the court’s order requiring an itemization of all costs he was seeking.

Appellant timely filed a motion to vacate and a supporting affidavit explain*1039ing that, because he was in transit within the Department of Corrections, he did not receive the November 5, 2014 order requiring him to file a detailed itemization until the time to comply had expired. The trial court summarily denied the motion to vacate without explanation.

We agree with appellant that the trial court erred in summarily denying the motion and that, at a minimum, an eviden-tiary hearing was required to determine whether appellant received the order and whether he had an opportunity to timely supply the detailed itemization that was required by the court. “A motion for relief from judgment should- not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Schleger v. Stebelsky, 957 So.2d 71, 73 (Fla. 4th DCA 2007) (quoting Smith v. Smith, 903 So.2d 1044, 1045 (Fla. 5th DCA 2005)). Appellant’s motion established a colorable entitlement to relief in that he may have been deprived of an opportunity to comply with the court’s order due to circumstances beyond his control.

Accordingly, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.1

Reversed and remanded for further proceedings.

CIKLIN, C.J., LEVINE and FORST, JJ., concur.


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Citator

Cited By

  • Van Bergen v. Koppel (Fla. 1st DCA 2019)
    …We agree that this was a colorable claim under rule 1.540(b), and that an evidentiary hearing was needed to determine whether Appellant had timely received the order and whether she had an opportunity to seek a timely appeal. See Yasir v. Forman, 199 So. 3d 1037 (Fla. 4th DCA 2016); Smith v. Smith, 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005); Seal v. Brown, 801 So. 2d 993, 995 (Fla. 1st DCA 2001). REVERSED and REMANDED for further proceedings. LEWIS, OSTERHAUS, and M.K. THOMAS, JJ., concur. _______________…

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