Irwin v. Walker, 84-2304
| Decision Date | 31 December 1984 |
| Docket Number | No. 84-2304,84-2304 |
| Citation | 468 So.2d 241,10 Fla. L. Weekly 124 |
| Parties | 10 Fla. L. Weekly 124 Michael T. IRWIN, Petitioner, v. David Seth WALKER, Circuit Judge, Respondent. |
| Court | Florida District Court of Appeals |
Richard T. Earle, Jr. of Earle and Earle, William Patterson of Masterson, Rogers, Patterson & Masterson, St. Petersburg, for petitioner.
Thomas P. Colclough of Wallace, Finck & Boake, P.A., St. Petersburg, for respondent.
The petitioner, Michael T. Irwin, seeks a writ of prohibition preventing the respondent from setting aside an order denying a motion to vacate. We grant the relief requested.
On June 10, 1983, the trial court entered a final judgment dissolving the marriage of the petitioner, Michael T. Irwin and his wife, Eugina D. Irwin. No appeal was taken from this final judgment.
Several months later, Mrs. Irwin filed a motion to set aside the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). On June 10, 1984, the respondent, David Seth Walker, Circuit Judge, in and for Pinellas County, Florida, entered an order denying the motion. No appeal was taken from that order, but five days later the wife filed a motion for rehearing. By letter dated October 16, 1984, the respondent expressed his intention to vacate and set aside the denial of the wife's motion to vacate.
The petitioner contends that once the respondent entered an order denying the motion to vacate, he did not have jurisdiction to consider a motion for rehearing. We agree.
A motion for rehearing under Florida Rule of Civil Procedure 1.530 may only be filed after the entry of a final order or judgment. Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982); Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983). Since an order denying a motion to vacate entered pursuant to rule 1.540(b) is a nonfinal order, the respondent was without jurisdiction to consider the motion for rehearing. Fla.R.App.P. 9.130; Potucek.
Petition for writ of prohibition granted.
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...1983); Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 485 (Fla.1984); and Irwin v. Walker, 468 So.2d 241 (Fla. 2d DCA 1984). These cases are bottomed on the theory that because orders on 1.540 motions are included within the rule governing review ......
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...Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA), rev. denied, 494 So.2d 1153 (Fla. 1986); Irwin v. Walker, 468 So.2d 241 (Fla. 2d DCA 1984). UPCHURCH, C.J., and ORFINGER, J., concur. ...
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...a nonfinal order may be that the party always can seek review at the end of the case. Not necessarily. For example, in Irwin v. Walker, 468 So. 2d 241 (Flat 2d DCA 1984), a party sought relief under Fla. R. Civ. P. 1.540. The trial court denied her motion and she moved for rehearing. She pr......