JOHN COLONEL AND VIRGINIA M. COLONEL, HIS WIFE, PETITIONERS,
v.
SOPHIA S. REED, RESPONDENT

Fla. 4th DCA | 1980-01-16
No. 79-2199
MOORE and HERSEY, JJ., concur.
379 So. 2d 1297 Florida District Court of Appeal, Fourth District (1980) Caution
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Colonel petitioned for certiorari to review a Circuit Court order affirming an eviction judgment from County Court. The core issue was whether the County Court had jurisdiction to retry the case before the appellate mandate from the Circuit Court's prior reversal was formally issued, creating a gap between the reversal order and mandate.


Holding

The County Court lacked jurisdiction to proceed with the second trial and enter judgment before receiving the Circuit Court's mandate on December 1, 1978. Because an appellate court retains jurisdiction until its mandate is duly received by the trial court's clerk, the trial court cannot regain jurisdiction until that time.


Headnotes

[1] A trial court lacks jurisdiction to retry a case and enter a new judgment prior to the issuance and receipt of the appellate court's mandate.

[2] The mandate of an appellate court is the official communication of its judgment to the inferior tribunal, and jurisdiction is not restored to the lower court until the ma…

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Key Quotes

“there can be no twilight zone in jurisdiction nor vacuum in its application. It is either effective full of force or not at all.”

Establishes the fundamental principle that jurisdiction cannot exist in a partial or suspended state; it must be complete or nonexistent.

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Facts & Procedural History

An eviction judgment was entered in Broward County Court on November 8, 1977. On appeal, the Circuit Court reversed and remanded by order dated June 1…

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Opinion of the Court
DOWNEY, Chief Judge.

DOWNEY, Chief Judge.

By petition for writ of certiorari we are asked to review a final order of the Circuit Court in its appellate capacity affirming a final judgment of the County Court of Bro-ward County.

The petition alleges that a final judgment of eviction was entered in the County Court of Broward County on November 8, 1977. A timely appeal of that judgment was perfected to the Circuit Court resulting in a reversal and remand of the judgment by Opinion filed June 16, 1978. The Circuit Court mandate, based upon the opinion of June 16th, was not issued until December 1, 1978. However, prior to the issuance of the mandate the cause was tried once again in the County Court and a final judgment was entered November 28, 1978. A timely appeal was taken from that judgment which resulted in the judgment’s being affirmed by order of the Circuit Court dated June 29, 1979. It is that order which this petition presents for our consideration.

Petitioner contends that the Circuit Court departed from the essential requirements of law in affirming the County Court judgment of November 28, 1978, because the County Court did not have jurisdiction to retry this case prior to the issuance of the mandate. Respondent maintains that the Clerk’s failure to fulfill his ministerial duty in issuing the mandate as required by Florida Appellate Rule 9.340(a) should not militate against his interests, particularly where the question of lack of jurisdiction was not presented to the trial court.

The failure of the parties or the trial court to notice the absence of a mandate prior to the second trial of the case is unfortunate, particularly because this case has already labored through two trials and two appeals. However, the question involved relates to jurisdiction. Years ago the Supreme Court of Florida, in State ex rel. Davis v. City of Clearwater, 108 Fla. 635, 635, 146 So. 836, 836 (Fla.1933), held that “[tjhere can be no twilight zone in jurisdiction nor vacuum in its application. It is either effective full of force or not at all.”

The mandate of an appellate court is the official method of communicating its judgment to the inferior tribunal. Livingston v. State, 113 Fla. 391, 152 So. 205 (Fla.1933); Tierney v. Tierney, 290 So. 2d 136 (Fla. 2d DCA 1974); 3 Fla.Jur.2d § 402, Appellate Review. As Justice Whitfield phrased it in his concurring opinion in the Clearwater case, supra:

Where on appeal or writ of error, the Supreme Court affirms or reverses a judgment, decree or order, such court does not lose jurisdiction of the cause until the mandate of the Supreme Court is duly remitted to, and received in, the office of the clerk of the lower court. 146 So. at 837.

Obviously, if the appellate court does not lose jurisdiction until the mandate is issued, the trial court cannot regain jurisdiction until that time. 3 Fla.Jur.2d, § 31, Appellate Review.

We hold that the County Court had no jurisdiction to proceed with the second trial and entry of judgment prior to the receipt of the mandate from the Circuit Court on December 1, 1978. Therefore, the order of the Circuit Court affirming the judgment of November 28, 1978, constitutes a departure from the essential requirements of law requiring issuance of the Writ of Certiorari. The order of the Circuit Court dated June 29, 1979, is quashed and the cause is remanded to the Circuit Court with directions to reverse the County Court judgment of November 28, 1978, and remand the case to the County Court for further proceedings.

MOORE and HERSEY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Edward v. Regan, 469 So. 2d 1387 (Fla. 1st DCA 1984)
    …for consideration the matters asserted as grounds for extraordinary relief. No mandate having issued, we may on our own motion modify or clarify our prior opinion as it appears necessary to the proper administration of justice. See, Colonel v. Reed, 379 So. 2d 1297, 1298 (Fla. 4th DCA 1980). Our further consideration of this case is not precluded by the rule, often invoked, that authorities not cited and issues not raised in the briefs or on oral argument cannot be raised for the first time on motion for rehea…
  • Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)
    …. See Tucker v. Slate, 633 So. 2d 1147 (Fla. 2d DCA 1994) (finding that trial court lacked jurisdiction to resentence defendant after successful appeal where trial court resentenced defendant prior to mandate being issued); see also Colonel v. Reed, 379 So. 2d 1297 (Fla. 4th DCA 1980).…
  • Westberry v. Copeland Sausage Co., 397 So. 2d 1018 (Fla. 1st DCA 1981)
    …e or rule having the effect of a statute in force to the contrary, and that the appellate court in a proper case may recall its mandate and reassume jurisdiction over its own judgments during the term at which they were entered. See Colonel v. Reed, 379 So. 2d 1297 (Fla. 4th DCA 1980). In Barth v. City of Miami, 146 Fla. 542, 1 So. 2d 574 (1941), the court recalled its mandate during the same term and reconsidered a case involving a negligence complaint which it had previously affirmed the dismissal of. The af…

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