JOHN M. COLDIRON, APPELLANT,
v.
SEMINOLE COUNTY SHERIFF'S DEPARTMENT, APPELLEE
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Appellant Coldiron challenges a civil forfeiture judgment for $10,487 seized during his arrest. The court reversed because the lower court entered summary judgment without properly notifying Appellant of the hearing, violating due process requirements.
The final judgment is void because the hearing that resulted in its entry was not properly noticed to Appellant. The lower court erred in denying Appellant's motion to set aside the judgment by concluding Appellant bore the burden of keeping the clerk informed of his address when he had retained counsel to receive notices.
[1] A final judgment of forfeiture is void when the defendant is not afforded proper notice of the hearing at which the judgment was entered.
[2] A motion to withdraw as counsel must comply with Florida Rule of Judicial Administration 2.505(f)(1) by setting forth the client's last known address and must be served u…
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Join FLexlaw to unlock all legal intelligence“Because the hearing that resulted in the entry of the judgment was not properly noticed, the final judgment is void.”
Establishes the core holding that lack of proper notice renders a judgment void
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Join FLexlaw to unlock all legal intelligenceAppellee initiated forfeiture proceedings against currency confiscated from Appellant during arrest, served by publication. Appellant's counsel filed …
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PER CURIAM.
Appellant challenges the lower court’s order denying his motion to set aside a final judgment of forfeiture. Appellant contends that the summary final judgment is void because he was not afforded notice of the hearing. Concluding that the lower court erred in not granting Appellant’s motion, we reverse and remand this cause for further proceedings.
Appellee initiated proceedings to forfeit $10,487 in U.S. currency confiscated from Appellant during his arrest. The forfeiture proceeding was served upon Appellant by publication. Counsel entered an appearance on behalf of Appellant and filed an answer to the forfeiture complaint. Subsequently, counsel was permitted to withdraw. However, the motion to withdraw did not to comply with Florida Rule of Judicial Administration 2.505(f)(1) because it failed to set forth Appellant’s last known address and the certificate of service evidences that the motion to withdraw was not served upon Appellant. The order permitting counsel to withdraw also did not provide an address upon which Appellant may be served with notices and was not sent to Appellant.
Several months after counsel was permitted to withdraw, Appellee filed a motion for summary judgment. The certificate of service states that the motion was served upon Appellant by U.S. mail. There is no indication in the record, however, as to how the address in the certificate of service was associated with Appellant and Appellant states that he never received the motion or notice for hearing. When Appellant did not appear for the hearing on Appellee’s motion for summary judgment, the court entered final judgment.
Because the hearing that resulted in the entry of the judgment was not properly noticed, the final judgment is void. Greisel v. Gregg, 733 So. 2d 1119, 1121 (Fla. 5th DCA 1999). The lower court’s order denying Appellant’s motion to set aside the final judgment reasoned that Appellant had failed to comply with his burden to keep the clerk informed of his proper address. Therefore, the lower court concluded that Appellant was not entitled to notice. We disagree with this conclusion because Appellant had employed counsel to receive notices in the action and he was not given proper notice of counsel’s attempt to withdraw.
REVERSED and REMANDED.
PALMER, C.J., PLEUS and TORPY, JJ., concur.
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Citator
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Agape Charter Sch., Inc. v. Summit Charter Sch., Inc., 254 So. 3d 1129 (Fla. 5th DCA 2018)…2.505(f)(1) contains a mandatory requirement that an attorney filing a motion to withdraw timely serve both the motion and the notice of hearing on his or her client at the client's last known address. See Coldiron v. Seminole Cty. Sheriff's Dep't, 974 So. 2d 1199, 1200 (Fla. 5th DCA 2008) ; Garden v. Garden, 834 So. 2d 190, 192 (Fla. 2d DCA 2002) ; Saenz v. Pena, 754 So. 2d 826, 827 (Fla. 3d DCA 2000).2 That was not done here. "The notice requirement implicates due process concerns of notice and opportunity…
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Agape Charter v. Summit Charter (Fla. 5th DCA 2018)
Authorities Cited
- Barash v. PSI Indus., Inc., 733 So. 2d 1119 (Fla. 4th DCA 1999)