State ex rel. Cantera v. District Court of Appeal, Third Dist.
| Decision Date | 11 January 1990 |
| Docket Number | No. 74367,74367 |
| Parties | 15 Fla. L. Weekly S13 STATE of Florida ex rel. Eduardo CANTERA, Petitioner, v. DISTRICT COURT OF APPEAL, THIRD DISTRICT, Respondent. |
| Court | Florida Supreme Court |
Arnaldo Velez of Taylor, Brion, Buker & Greene, Miami, for petitioner.
Marilyn J. Holifield of Holland & Knight, Miami, for respondent The Boatmen's Nat. Bank of St. Louis, a Nat. Banking Ass'n.
Eduardo Cantera filed this petition for writ of prohibition seeking to prevent the Third District Court of Appeal from considering an appeal from a judgment he obtained against the Boatsmen's National Bank of St. Louis, formerly known as Centerre Bank, N.A. Pursuant to article V, section 3(b)(7), of the Florida Constitution, this Court may entertain by prohibition any case pending in a district court of appeal when it appears that that court is about to act in excess of its jurisdiction. State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978). Upon consideration of the response to our order to show cause, we now grant the petition.
Final judgment was entered on October 11, 1988. The bank filed a motion for rehearing on October 21, 1988. The trial judge entered an order denying the motion for rehearing on November 15, 1988. However, on November 21, 1988, the trial court entered an order vacating the order denying the motion for rehearing and by a separate order directed the parties to file memoranda directed to the issues raised by the bank's motion for rehearing. After the submission of memoranda, the trial court entered an order denying the motion for rehearing on December 28, 1988. On January 17, 1989, the bank filed a notice of appeal to the Third District Court of Appeal. Cantera filed a motion to dismiss or quash the appeal, contending that when the trial judge originally denied rehearing he lost jurisdiction to enter the subsequent order. Thus, Cantera argued that the notice of appeal should have been filed no later than thirty days from November 15, 1988. In a split decision, the Third District Court of Appeal denied the motion to dismiss. 544 So.2d 341.
The case turns on whether the trial judge had the authority to vacate the order denying rehearing. Ironically, a recent decision of the same Third District Court of Appeal suggests the lack of such authority. In Capital Bank v. Knuck, 537 So.2d 697 (Fla. 3d DCA 1989), the trial judge entered an order denying a motion for rehearing but gave the movant an additional ten days to file a new motion for rehearing. In prohibiting the trial court from entertaining further proceedings with respect to the new motion, the Third District Court of Appeal said:
It is apparent that the unqualified denial of Bulas's appropriate post-judgment motion constituted a final disposition of that motion. Because, notwithstanding that the order undertook to do so, the trial court has no authority either to permit the filing of any further motion for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530, or to extend the time for filing that motion, the quoted order therefore terminated the trial court's jurisdiction over the cause....
In sum, the lower court could do nothing after the appropriate disposition of the single authorized post-trial motion.
Id. at 698 (footnotes omitted; citations omitted). See also Markevitch v. Van Harren, 429 So.2d 1255 (Fla. 3d DCA 1983).
The bank seeks to justify the order vacating the denial of the motion for rehearing as an order entered pursuant to Florida Rule of Civil Procedure 1.540(a) which reads:
(a) Clerical Mistakes....
To continue reading
Request your trial
-
Sims v. State
...filing of a notice of appeal precludes the appellate court from exercising jurisdiction"); State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 360, 362 (Fla.1990) ("An appellate court cannot exercise jurisdiction over a cause where a notice of appeal has not been ti......
-
Fire & Cas. Ins. Co. of Conn. v. Sealey
...within the time set by the applicable rule, the appellate court must dismiss the appeal. See State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 360, 362 (Fla.1990); Int'l Studio Apt. Ass'n v. Sun Holiday Resorts, Inc., 375 So.2d 335, 336 (Fla. 4th DCA 1979). The me......
-
Fla. Organic Aquaculture, LLC v. Advent Envtl. Sys., LLC
...motion for reconsideration and to enter a final judgment awarding costs or attorney's fees. E.g., State ex rel. Cantera v. Dist. Ct. App., Third Dist., 555 So.2d 360, 362 (Fla. 1990) (explaining that the trial court lost jurisdiction over the matter when it denied a motion for rehearing of ......
-
Peltz v. District Court of Appeal, Third Dist.
...when it appears that a district court of appeal is about to act in excess of its jurisdiction. State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 360 (Fla.1990); State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978). The Third District Court of Appeal ha......
-
Misdemeanor defense
...appeal is untimely, the appeals court lacks jurisdiction to hear the appeal. [ State ex rel. Cantera v. Third District Court of Appeal , 555 So. 2d 360 (Fla. 1990).] In a criminal case, a defendant may be entitled to a belated appeal in extremely limited circumstances based upon certain fac......
-
Reconsideration or rehearing: is there a difference?
...Capital Bank v. Knuck, 537 So. 2d 697, 698 (Fla. 3d D.C.A. 1989). (20) State ex rel. Cantera v. District Court of Appeal, Third Dist., 555 So. 2d 360, 362 (Fla. (21) See AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 1125 (Fla. 3d D.C.A. 2008) (rejecting contention that trial court cou......