ERIC M. HOFFMAN, APPELLANT,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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An inmate appealed the denial of a motion for relief from judgment seeking to challenge an order denying his petition for writ of mandamus regarding gain time issues. The appellate court affirmed the lower court's denial, holding that the motion was untimely under the applicable appellate rules governing mandamus proceedings.
The court affirmed the denial of Hoffman's Rule 1.540 motion, finding that such a motion was unavailable because the mandamus proceeding was governed by the Florida Rules of Appellate Procedure rather than the Florida Rules of Civil Procedure, and treating the motion as if filed under Florida Rule of Appellate Procedure 9.330, the motion was untimely.
[1] An order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540 is appealable.
[2] A motion filed under Florida Rule of Civil Procedure 1.540 is unavailable to challenge a prior order in a mandamus proceeding governed by the Florida Rules of Appellate P…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the mandamus proceeding in the circuit court was governed by the Florida Rules of Appellate Procedure, not the Florida Rules of Civil Procedure, and that the Rule 1.540 motion was therefore unavailable to the inmate”
Establishes that Rule 1.540 motions cannot be used in mandamus proceedings, which are governed by appellate rather than civil procedure rules.
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Join FLexlaw to unlock all legal intelligenceEric Hoffman, a prison inmate, filed a Rule 1.540 motion seeking reissuance of an order that had denied his petition for writ of mandamus concerning g…
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BARFIELD, J.
This is an appeal of an order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540 which was filed by a prison inmate, Eric Hoffman. In his Rule 1.540 motion, Hoffman sought reissuance of an order denying his petition for writ of mandamus regarding gain time issues, so as to allow him to belatedly challenge that order and an order imposing a lien on his inmate trust account for the court fees related to the mandamus proceeding. The appellee has filed a motion to dismiss Hoffman’s initial briefipetition for writ of certiorari in which he raised, in addition to arguments challenging the order denying the Rule 1.540 motion, arguments challenging the order imposing the lien, the order denying the petition for writ of mandamus, and an order denying a motion for disqualification of the trial judge. We GRANT the appel-lee’s motion to dismiss in part, finding that Hoffman has not properly invoked this court’s jurisdiction as to the three orders, but DENY the motion to dismiss with respect to the order denying the Rule 1.540 motion.
The order denying the Rule 1.540 motion is appealable. See Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 836 So. 2d 78 (Fla.1976). This court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(4) to review the order. See Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006). And Hoffman has properly invoked this court’s jurisdiction by timely filing a notice of appeal of the order denying his Rule 1.540 motion.
Review of the order is governed by this court’s very recent opinion in Hampton v. McDonough, 967 So. 2d 317 (Fla. 1st DCA 2007), which found, in circumstances similar to those in the case at issue, that the mandamus proceeding in the circuit court was governed by the Florida Rules of Appellate Procedure, not the Florida Rules of Civil Procedure, and that the Rule 1.540 motion was therefore unavailable to the inmate. Treating Hampton’s motion as having been filed pursuant to Florida Rule of Appellate Procedure 9.330, the court found that it was untimely filed, and that the circuit court had therefore correctly denied the motion.
Likewise, treating Hoffman’s Rule 1.540 motion as having been filed pursuant to Florida Rule of Appellate Procedure 9.330, we find that it was untimely filed, and that the circuit court therefore correctly denied the motion. AFFIRMED.
BROWNING, C.J., and BENTON, J., concur.
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Autley Mobley v. McNEIL, 989 So. 2d 1215 (Fla. 1st DCA 2008)…for rehearing filed pursuant to Florida Rule of Appellate Procedure 9.330. Because the motion was untimely, the Court concluded that the circuit court had properly denied the motion and affirmed [*1217] the order. Similarly, in Hoffman v. McDonough, 969 So. 2d 514 (Fla. 1st DCA 2007), the appellant filed a rule 1.540(b) motion, which the circuit court denied. Pursuant to the decision in Hampton, this Court affirmed the denial of the motion. The exercise of this Court’s jurisdiction in Hampton and Hoffman rest…
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Milord v. Fla. Parole Comm'n, 4 So. 3d 762 (Fla. 1st DCA 2009)…elson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983). This court recently held, however, that this type of circuit court case is governed by the rules of appellate procedure and a rule 1.540(b) motion is not cognizable therein. Hoffman v. McDonough, 969 So. 2d 514 (Fla. 1st DCA 2007); see also Mobley v. McNeil, 989 So. 2d 1215 (Fla. 1st DCA 2008). Those cases held that a motion for rehearing pursuant to Florida Rule of Appellate Procedure 9.330 was the proper method to challenge an order imposing a filing fee…
Authorities Cited
- Hampton v. McDONOUGH, 967 So. 2d 317 (Fla. 1st DCA 2007)
- Leisuris R. Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006)