WILLIAM DRAKE, APPELLANT,
v.
THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA, APPELLEE
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The court held that a default judgment was improvidently granted when the defendant filed a response before the default hearing, but the denial of the motion to dismiss for insufficient service of process was proper.
The defendant appealed a trial court's order denying his motion to dismiss for insufficient service of process and quash service, as well as a concurr…
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[*173] PER CURIAM.
Appellant, the defendant below, appeals from a trial court Order denying his Motion to Dismiss for Insufficiency of Service of Process and to Quash Service of Process, and from a concurrent Order of Default and Default Final Judgment. We reverse the Default Judgment, but affirm the Order denying appellant’s Motion to Dismiss and to Quash Service.
Based on the fact that the appellant filed a response to the Complaint prior to the hearing on the Plaintiffs Motion for Default, both the Default against the appellant and the Default Final Judgment were improvidently granted. See Fla. R. Civ. P. 1.500(c); Carder v. Pelican Cove West Homeowners Ass’n Inc., 595 So. 2d 174, 175 (Fla. 5th DCA 1992)(“[t]he filing of the motion to dismiss precluded any subsequent entry of default in respect to any complaint pending at that time.”) (citations omitted); see also Lenhal Realty Inc. v. Transamerica Commercial Finance Corp., 611 So. 2d 79, 80 (Fla. 4th DCA 1992); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 (Fla. 3d DCA 1980).
However, with respect to appellant’s Motion to Dismiss and to Quash Service due to alleged insufficiency of service, the Record supports the trial court’s denial of appellant’s Motion. Accordingly, we reverse the entry of Default and Final Default Judgment, affirm the denial of appellant’s Motion to Dismiss and to Quash Service, and remand for further proceedings consistent herewith.
Reversed in part; affirmed in part.
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Llerena v. State, 953 So. 2d 31 (Fla. 3d DCA 2007)…nally ordered that the sentence be coterminous with the other sentences imposed. Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates. See Knight v. State, 832 So. 2d 172, 172 (Fla. 3d DCA 2002)(affirming denial of motion for post-conviction relief as “plea colloquy contains no indication that the sentence was to be coterminous with any other sentence”). We, therefore, affirm the trial court’s order to the extent th…
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Danurel Daffin v. State, 31 So. 3d 867 (Fla. 1st DCA 2010)…3 (Fla.2009). But “[(Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates.” Llerena v. State, 953 So. 2d 31, 33 (Fla. 3d DCA 2007) (citing Knight v. State, 832 So. 2d 172, 172 (Fla. 3d DCA 2002)). In the present case, the concurrent sentences for the new law violations began later than the sentence pronounced upon revocation of probation to which they were all concurrent; and the petit theft sentence expired before a…
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Carder v. Pelican Cove W. Homeowners Ass'n, Inc., 595 So. 2d 174 (Fla. 5th DCA 1992)
- Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992)