SALLY ARCE, AS GUARDIAN, ETC., ET AL., PETITIONERS,
v.
MAHER GUILEY AND MAHER, P.A., ET AL., RESPONDENTS
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The petitioners sought certiorari review of orders appointing a guardian ad litem and denying their motion for rehearing. The court denied the certiorari petition as untimely if the underlying order was non-final, while preserving their right to challenge the orders through direct appeal.
The certiorari petition was denied as untimely if the order appointing the guardian ad litem is a non-final order. A motion for rehearing does not suspend the thirty-day jurisdictional time limit for seeking certiorari review of a non-final order, since rehearing is not authorized as to non-final orders. Petitioners' proper remedy lies in their direct appeal in case number 5D06-574.
[1] A motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari.
[2] The time limit to file a petition for writ of certiorari cannot be extended by obtaining a second order in the trial court to the same effect as the first.
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Join FLexlaw to unlock all legal intelligence“A certiorari petition must be filed within thirty days of rendition of the order to be reviewed.”
Establishes the jurisdictional time requirement for certiorari petitions.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an order appointing a guardian ad litem on 15 December 2005. Petitioners filed a motion for rehearing on or before 27 January 2…
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THOMPSON, J.
Petitioners seek certiorari review of a 15 December 2005 order appointing guardian ad litem and a 27 January 2006 order denying their motion for rehearing. They petitioned for certiorari review on 28 February 2006 and, uncertain of the appropriate remedy to review the orders, also filed a notice of appeal in this court. That case, case number 5D06-574, is currently pending. The order appointing a guardian ad litem is either a final, appealable order or a non-final, non-appealable order. If it is final and appealable, Petitioners’ remedy rests on direct appeal in case number 5D06-574. If it is a non-final, non-appeal-able order, their petition was untimely.
A certiorari petition must be filed within thirty days of rendition of the order to be reviewed. See Fla. R.App. P. 9.100(c)(1); Dep’t Health & Rehab. Servs. v. Career Serv. Comm’n, 448 So. 2d 18, 19 (Fla. 1st DCA 1984). A motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari because rehearing is not authorized as to non-final orders. E.g., Coldwell Banker Commercial v. Wightman, 649 So. 2d 346, 347 (Fla. 5th DCA 1995). The time limit to file a petition for writ of certiorari cannot be extended by obtaining a second order in the trial court to the same effect as the first. Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094, 1094 (Fla. 4th DCA 1991). Here, the order to be reviewed was entered on 15 December 2005. If it is considered a non-final order, Petitioners had until 14 January 2006 to seek certiorari review. See id. at 1094-95. Their motion for rehearing did not toll the time for seeking certiorari relief.
Accordingly, the Petition for Writ of Certiorari is DENIED without prejudice to raise in case number 5D06-574 the nature and merits of the orders.
GRIFFIN and SAWAYA, JJ„ concur.
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McCLELLAN v. Fla. Parole Comm'n, 959 So. 2d 827 (Fla. 1st DCA 2007)…PER CURIAM. DISMISSED as untimely. See Fla. R.App. P. 9.100(c)(1); Arce v. Maher Guiley & Maher, P.A., 936 So. 2d 682 (Fla. 5th DCA 2006) (holding that a motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari because rehearing is not authorized as to non-final orders). WEBSTER, DAV…
Authorities Cited
- Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094 (Fla. 4th DCA 1991)
- Rose v. State, 649 So. 2d 346 (Fla. 5th DCA 1995)
- Harvard J. Hart and Shirley Marie Hart v. Seaboard Coastline R.R. Co. & Wickes Corp., 448 So. 2d 18 (Fla. 2d DCA 1984)