Sherwood v. State
| Decision Date | 03 March 1959 |
| Docket Number | No. 58-285,58-285 |
| Parties | Horace M. SHERWOOD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Henry R. Carr, Prebish & DuVal and Marshall G. Curran, Jr., Vivian B. Rutherford, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
From a judgment of conviction for the offense prohibited by section 800.04, Fla.Stat., F.S.A., this appeal was taken.
The appellant urged five points upon which he relied for a reversal of the judgment. We have carefully considered each of these points and the entire record of the trial proceedings below, and we are not convinced that the errors, if any, were so prejudicial as to have resulted in a miscarriage of justice. Section 54.23, Fla.Stat., F.S.A. The evidence presented adequately supported the verdict.
The petition for rehearing filed on behalf of the appellant is hereby stricken because it is in substantial violation of material provisions of Florida Appellate Rule 3.14, 31 F.S.A., relating to such petitions.
Subparagraph 'd' of rule 3.14 states that 'in case of a substantial violation of any material provision of this rule, the petition [for rehearing] will be stricken by the Court on its own motion and the contents will not be considered.' Subparagraph 'b' of the cited rule, dealing with contents of a petition for rehearing, provides: 'The petition for rehearing shall not assume a new ground or position from that taken in the original argument or briefs upon which the cause was submitted, and must set forth concisely, and without argument, the alleged omissions, oversights, causes or grounds on which it is based.'
A substitution of attorneys occurred after our decision in the case was rendered, and before the filing of petition for rehearing, and the substituted attorney filed the petition now under consideration. A cursory examination of that petition shows that it is an attempted reargument of the case, largely on new theories, taking up certain of the points which were argued in the appellant's brief and rearguing them with citation of authorities.
The provisions of Florida Appellate Rule 3.14 for filing a petition for rehearing do not authorize its use as a means of rebriefing or rearguing the points involved in the case; or to raise other or different grounds from those relied on at the hearing; and the inclusion of argument in the petition is forbidden under the rule. The authorized purpose and scope of petitions for rehearing are clearly set forth in rule 3.14, and where a petition for rehearing is filed, in substance and in form it should not depart from the purposes or exceed the limits placed on such petitions by the rule. When properly so used petitions for rehearing are not unwelcome, and may operate to promote the administration of justice.
In the recent case of State ex rel. Jaytex Realty Company v. Green, Fla.App.1958, 105 So.2d 817, 818-819, the matter under discussion here was considered and commented on at some length by the district court of appeal in the first district, in an opinion on rehearing authored by Judge Wigginton. In the course of that opinion it was said:
'The sole and only purpose of a petition for rehearing is to call to the attention of the court some fact, precedent or rule of law which the court has overlooked in rendering its decision. Judges are human and subject to the frailties of humans. It follows that there will be occasions when a fact, a controlling decision or a principle of law even though discussed in the brief or pointed out in oral argument will be inadvertently overlooked in rendering the judgment of the court. There may also be occasions when a pertinent decision of the Supreme Court or of another District Court of Appeal may be rendered after the preparation of briefs, and even after oral argument, and not considered by the court. It is to meet these situations that the rules provide for petitions for rehearing as an orderly means of directing the court's attention to its inadvertence.
'It is not a compliment to the intelligence, the competency or the industry of the court for it to be told in each case which it decides that it has 'overlooked and failed to consider' from three to twenty matters which, had they been given proper weight, would have necessitated a different decision.
'Certainly it is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral argument and necessarily considered by the court, or to request the court to change its mind as to a matter which has already received the careful attention of the judges, or to further delay the termination of litigation.'
The matter under consideration has been dealt with previously by the Supreme Court in cases too numerous to justify their citation. In Payne v. Ivey, 83 Fla. 436, 93 So. 143, 148, the Supreme Court said:
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Parker v. Baker, 85-2900
...Aviation Underwriters, Inc., 466 So.2d 1119 (Fla. 2d DCA 1985); Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983); Sherwood v. State, 111 So.2d 96 (Fla. 3d DCA 1959). Every point mentioned in the motion for rehearing was argued by appellee in his brief and oral argument and was addressed ......
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Azran Miami 2, LLC v. U.S. Bank Tr.
... ... court"); Pedroni v. Pedroni, 788 So.2d 1138 ... (Fla. 5th DCA 2001) (same); ... Swyers v. State, 483 So.2d 520, 521 (Fla. 4th DCA ... 1986) (observing: "The law is clear that matters outside ... the record may not be made the subject ... mere disagreement with its resolution of the issues on ... appeal"); Sherwood v. State, 111 So.2d 96 (Fla ... 3d DCA 1959) (holding motion for rehearing may not be used as ... a means to reargue points involved in ... ...
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Azran Miami 2, LLC v. U.S. Bank Trust, N.A.
...or misapprehended in its decision, not to express mere disagreement with its resolution of the issues on appeal"); Sherwood v. State, 111 So. 2d 96 (Fla. 3d DCA 1959) (holding motion for rehearing may not be used as a means to reargue points involved in the case or to raise other or differe......
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Hodges v. State Road Dept. of Fla.
...violation of the rule requirements applicable to petitions for rehearing and is therefore hereby stricken. See Horace M. Sherwood v. State of Florida, Fla.App.1959, 111 So.2d 96; State ex rel. Jaytex Realty Company v. Green, Fla.App.1958, 105 So.2d CARROLL, DONALD and WIGGINTON, JJ., concur......