MICHAEL T. IRWIN, PETITIONER,
v.
DAVID SETH WALKER, CIRCUIT JUDGE, RESPONDENT
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The court held that a judge lacks jurisdiction to consider a motion for rehearing after entering an order denying a motion to vacate a nonfinal order.
Following a final judgment dissolving a marriage, the wife moved to set aside the judgment. The trial court denied this motion. The wife then filed a …
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SCHOONOVER, Judge.
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 1.580 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.
GRIMES, A.C.J., and CAMPBELL, J., concur.
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Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986)…tucek v. Smeja, 419 So. 2d 1192 (Fla. 2d DCA 1982), and its progeny Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 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 of non-final orders (Florida Rule of Appellate Procedure 9.130), see Fla.R.App.P. 9.130(a)(5), these orders…
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Catalano v. Catalano, 516 So. 2d 77 (Fla. 5th DCA 1987)…4); Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 1983); Tacy v. Davis, 425 So. 2d 603 (Fla. 4th DCA 1982). See also 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). DISMISSED. UPCHURCH, C.J., and ORFINGER, J., concur.…
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Sec. Nat'l Mortg. Co. v. Crevan O. Reid, 185 So. 3d 1265 (Fla. 4th DCA 2016)…. v. Suburban Bank, 506 So. 2d 1177, 1178 (Fla. 4th DCA 1987). The lower court was therefore without jurisdiction to rehear Security’s motion after it had already denied it. See Thornton v. Jabeen, 683 So. 2d 150 (Fla. 3d DCA 1996); Irwin v. Walker, 468 So. 2d 241 (Fla. 2d DCA 1984). We therefore do not reach the merits of Security’s appeal and quash the order denying Security’s motion to vacate entered on rehearing. Security also appeals the lower court’s reservation of jurisdiction to award attorney’s fee…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d DCA 1982)
- Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 1983)