Thompson v. Singletary
| Decision Date | 11 August 1995 |
| Docket Number | No. 95-0326,95-0326 |
| Parties | 20 Fla. L. Weekly D1901 Arthur THOMPSON, Petitioner, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, et al., Respondent. |
| Court | Florida District Court of Appeals |
Arthur Thompson, Starke, pro se petitioner.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Aubin Wade Robinson, Asst. Atty. Gen., West Palm Beach, for respondent.
ON MOTION FOR REHEARING AND TO RECALL MANDATE
In our original opinion 1, Thompson v. Singletary, 655 So.2d 1282 (Fla. 4th DCA 1995) we ordered a new trial because petitioner, who was convicted of first degree murder, burglary with assault/battery and robbery, persuaded us that he had ineffective assistance of appellate counsel on the direct appeal from his convictions. The portions of the transcript provided to us by petitioner, which were not disputed in the response filed by the state, demonstrated that the trial court incorrectly denied a challenge of a juror for cause, that petitioner was forced to use a peremptory challenge on her, that petitioner exhausted his peremptory challenges and requested an additional challenge, and that the court denied the request. Our opinion was filed June 7, 1995, and no motion for rehearing having been filed in 15 days, our mandate issued on June 23, 1995.
On June 29, 1995, the state filed an untimely motion for rehearing, a motion to accept the motion for rehearing as timely filed, and a motion to recall the mandate. The motion for rehearing attached additional portions of the transcript of petitioner's trial, which had not previously been furnished to this court, reflecting that the trial court had a change of heart about 150 pages later in the transcript, and gave petitioner an additional peremptory challenge. Petitioner's counsel advised the court that he did not desire to use it. The error was thus cured, and petitioner is not entitled to a new trial.
Florida Rule of Appellate Procedure 9.330(a) provides that a motion for rehearing "may be filed within 15 days of an order or within such other time set by the court." The 15 day time limit is not jurisdictional. Chapman v. St. Stephens Protestant Episcopal Church, 138 So. 630 (Fla.1932); Maffea v. Moe, 483 So.2d 829 (Fla. 4th DCA 1986) (); and Harris v. State, 107 So.2d 402 (Fla. 1st DCA 1958). The problem confronting us, however, is that after the issuance of our mandate on June 23, 1995, our term of court ended on July 10, 1995. Sec. 35.10, Fla.Stat.
In State Farm Mutual Automobile Ins. Co. v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980, 982 (Fla.1981), the appellate court affirmed a case without opinion during one term of court, and approximately 4 months later, during the next term of court, the appellant filed a motion for rehearing. The court denied the motion for rehearing because it was untimely, but sua sponte decided to reconsider the case en banc, because it conflicted with another case in which an opinion had been written in the interim. The party opposing the rehearing then obtained a writ of mandamus from the Florida Supreme Court, which held that an appellate court is without jurisdiction to recall its mandate beyond the term of court during which the mandate was issued, explaining:
All things must have end, even a district court's power to correct inconsistencies. The reasons for this form the bedrock of Anglo-American jurisprudence: Lovett v. State, 29 Fla. 384, 401, 11 So. 176, 179 (1892).
In the present case, the state's motion for rehearing was filed during the same term of court, and if the state had called our attention to the fact that our term of court was about to expire by designating its motion to recall mandate as an emergency motion, it would have been brought to our attention immediately and we would have recalled the mandate prior to the end of term. Our normal procedure with motions for rehearing, which we followed here, is that the motion is held in the clerk's office until a response is filed or the time for response expires. Petitioner did file a response; however, by the time the motions and...
To continue reading
Request your trial
-
Zant v. Florida Parole Commission, No. 07-12464 (11th Cir. 1/21/2009)
...a motion for rehearing which is untimely can be considered as timely at the discretion of the court. Cf. Thompson v. Singletary, 659 So. 2d 435, 437 (Fla. 4th Dist. Ct. App. 1995) (holding that because Rule 9.330(a) is not jurisdictional, court could consider an untimely motion for Accordin......
-
Pinecrest Lakes, Inc. v. Shidel, 4D99-2641.
...issued. State Farm, 405 So.2d at 982-83; Maffea, 483 So.2d at 831; Interest of D.I., 477 So.2d at 72. See also Thompson v. Singletary, 659 So.2d 435, 436 (Fla. 4th DCA 1995). But the issue we face is not whether we have the power to recall our mandate—for clearly we do, as here, within the ......
-
Kinard v. State, 95-2550
...State Farm Mut. Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981); Thompson v. Singletary, 659 So.2d 435 (Fla. 4th DCA 1995); United Faculty of Fla. v. Board of Regents, 423 So.2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So.2d 772 (Fla. 2......
-
Walton v. State, 3D01-232.
...issued mandates on conflicting opinions. We now correct our error and withdraw our mandate in this case. See Thompson v. Singletary, 659 So.2d 435, 437 (Fla. 4th DCA 1995)(citing Washington v. State, 92 Fla. 740, 110 So. 259, 260-61 (1926))(prevailing rule is that an appellate court's juris......