THE HONORABLE B. PAUL PETTIE AS COUNTY COURT JUDGE, BROWARD COUNTY, FLORIDA, APPELLANT,
v.
PAT KRONBERG, APPELLEE
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A county court judge appealed an order denying his motion to vacate a writ of prohibition issued by a circuit court. The appellate court affirmed, holding that an informal phone call cannot constitute a timely motion for rehearing or to vacate, as such motions must comply with procedural rules requiring written filings and proper service within ten days.
The court held that an informal phone call cannot be treated as a timely motion for new trial or petition for rehearing, as motions must comply with Florida Rules of Civil Procedure by being filed in writing and served within ten days of judgment. Accordingly, the order denying the motion to vacate the writ of prohibition was affirmed.
[1] An appeal from an order denying a motion to vacate does not bring up for review the final decree or judgment to which the motion was directed.
[2] A motion to vacate must be in writing and set forth its grounds, unless made during a hearing or trial.
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Join FLexlaw to unlock all legal intelligence“an appeal from an order denying a motion to vacate does not bring up for review the final decree or judgment to which the motion was directed”
Establishes the limited scope of review available in this appeal
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Join FLexlaw to unlock all legal intelligenceAppellee was charged with marijuana possession in Municipal Court of Hollywood, Florida, and the case was transferred to County Court of Broward Count…
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DOWNEY, Judge.
Appellee was charged with possession of marijuana in the Municipal Court of Hollywood, Florida. Upon appellee’s motion the case was transferred to the County Court of Broward County. Eventually appellee moved for discharge pursuant to Rule 3.191, RCrP. Upon denial of said motion, appellee on December 19, 1973, filed a petition for writ of prohibition in the Circuit Court of the Seventeenth Judicial Circuit.
On December 27, 1973, the circuit court issued its writ prohibiting the appellant judge from proceeding with the case against appellee. In his brief appellant states that “on December 28, 1973, the State Attorney’s Office got in touch with [Circuit] Judge LaMotte and asked for a rehearing as to the Writ of Prohibition .” On January 15, 1974, an order was entered denying “the motion to vacate writ of prohibition.” This interloe-1 utory appeal seeks review of that order. The appellant’s points on appeal are all directed at either the alleged propriety of the appellant-county judge’s action in denying the motion for discharge or at the validity of the issuance of the writ of prohibition.
However, an appeal from an order denying a motion to vacate does not bring up for review the final decree or judgment to which the motion was directed. Odum v. Morningstar, Fla.App.1963, 158 So. 2d 776. The sole question which could be presented on this appeal is the propriety of the denial of a Rule 1.540, RCP motion to vacate, i.e., were the grounds stated in the motion sufficient to require an order vacating the writ of prohibition. Unfortunately (and in contravention of Rule 1.100(b) RCP which requires motions to be in writing and to set forth the grounds thereof, unless made during a hearing or trial) no written motion was ever filed so that we can determine on the record the grounds presented to the circuit court to justify vacating the writ of prohibition.
Since the record fails to demonstrate grounds requiring the circuit court to vacate the writ of prohibition, the order appealed from must be affirmed.
We do not believe the appellant’s phone call can be treated as timely motion for new trial or petition for rehearing. Raughley v. Pennsylvania Railroad Co., 230 F. 2d 387 (3 Cir. 1956); Coggan v. Coggan, Fla.App.1968, 213 So. 2d 902. Rule 1.100(b) RCP requires such motions to be in writing. Rule 1.530(b) RCP requires the motion to be served not later than ten days after verdict or non-jury judgment. Appellant met none of these requirements. Accordingly, the order appealed from is affirmed.
WALDEN and CROSS, JJ., concur.
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The Honorable John Adams v. State, 478 So. 2d 1190 (Fla. 5th DCA 1985)…cedure. See Chapman v. State, 152 Fla. 183, 11 So. 2d 335 (1943); Harrison v. Murphy, 132 Fla. 579, 181 So. 386 (1938). See also Cobb v. State, 148 Fla. 149, 3 So. 2d 855 (1941); State v. Knight, 138 Fla. 374, 189 So. 425 (1939); Pettie v. Kronberg, 300 So. 2d 44 (Fla. 4th DCA 1974). But under authority of Florida Rule of Appellate Procedure 9.040(c) and Ingham v. Kaney, 456 So. 2d 592 (Fla. 5th DCA 1984), we accept jurisdiction under our appellate review authority, rather than our extraordinary writ powers.…
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Weinberg v. Stein, 555 So. 2d 379 (Fla. 3d DCA 1989)…upon procedural technicalities.” Gordon v. Vaughan, 193 So. 2d 474, 475 (Fla. 3d DCA 1967) (citations omitted). I would deny the motion to dismiss the appeal as untimely filed and entertain this appeal on the merits. . But see Pettie v. Kronberg, 300 So. 2d 44 (Fla. 4th DCA 1974) (counsel's telephone call to judge ' could not be treated as timely motion for new trial or petition for rehearing). . “Decisions and commentaries under the federal rules are persuasive guidelines to the interpretation of state…
Authorities Cited
- Clyde Odum et ux. v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963)
- Burton R. Raughley v. Pa. R.R. Co., 230 F.2d 387 (3d Cir. 1956)
- Coggan v. Coggan, 213 So. 2d 902 (Fla. 2d DCA 1968)