BRIAN SNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
SHARP, C.J., DAUKSCH and DANIEL, JJ., concurred.
DAUKSCH, Judge.
Appellant seeks a rehearing of his appeal wherein his conviction was affirmed without opinion.
As grounds for his motion for rehearing he says nothing more than what he said in his brief on appeal. This is an abuse of the procedure for rehearing and causes a waste of time for everyone concerned. Because this is not an isolated instance we write to discourage the practice.
Florida Rule of Appellate Procedure 9.330(a) specifically prohibits the filing of a motion for rehearing such as was filed here. It says “[t]he motion shall not re-argue the merits of the court’s order.” The rule also requires the movant to “state with particularity the points of law or fact which the court has overlooked or misapprehended.” The rules governing attorneys generally provide that frivolous motions should not be made. To maintain that the court has overlooked something or misapprehended something when no written opinion is available to support the basis of the motion is less than persuasive, to put it nicely.
We agree with the opinion in State ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817, 818 (Fla. 1st DCA 1958), cert. discharged, 112 So. 2d 571 (Fla.1959) which says:
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.
See also Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983); Dubowitz v. Century Village East, Inc., 381 So. 2d 252, 253 (Fla. 4th DCA 1979).
We note finally that appellant says in his motion for rehearing that “[wjithout the benefit of Oral Argument, the Court has overlooked the following points of fact ...” Appellee responds to this rather sarcastic remark by saying appellant’s request was not made until six months after the briefs were filed. If the request for oral argument had been made six months after the briefs were filed then appellee would be correct in saying the request was untimely. Fla.R.App.P. 9.320. Here, though, appellant filed no request for oral argument with this court.
THE MOTION IS STRICKEN.
SHARP, C.J., and DANIEL, J., concur.
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Aracelis Amador v. Meche Walker, 862 So. 2d 729 (Fla. 5th DCA 2003)…o the court that we did not read the briefs the first time. Although much has been written to discourage the use of rehearing motions in this manner, apparently the written word is not penetrating enough to get the point across. See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked; re-argument improper); Banderas v. Advance Petroleum, Inc., 716 So. 2d 876 (Fla. 3d DCA 1998) (motion should not be used to express disple…
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Marion v. Orlando Pain & Med. Rehab., 67 So. 3d 264 (Fla. 5th DCA 2011)…therein. Motions for rehearing are not to be used for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision. Id. They are rarely, if ever, warranted when the decision is without opinion. See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked). In this motion, not only does counsel violate this admonition, he does so unabashedly — by admitting that it was his primary purpose in…
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McDONNELL v. Corrected Sanford Airport Auth., 200 So. 3d 83 (Fla. 5th DCA 2015)…cussing the sole purpose of a motion for rehearing). However, generally, these motions are considered improper because a motion for rehearing cannot direct the court to matters overlooked if no written opinion has been published. See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (holding motion for rehearing rear-guing the same points on appeal after issuance of an affirmance without opinion is improper and an abuse of procedure). Such is the case here. Counsel’s motion does not alert the panel to some…
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- State of Fla. ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958)
- Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983)
- State of Fla. ex rel. Jaytex Realty Co. v. Green, 112 So. 2d 571 (Fla. 1959)
- Dubowitz v. Century Vill. E., Inc., 381 So. 2d 252 (Fla. 4th DCA 1979)