SAMUEL C. GOLDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the trial court's denial of a Rule 1.540(b) motion for relief from judgment where the appellant claimed he did not receive notice of an order denying his motions for declaratory judgment until after the appeal deadline expired, and remanded for an evidentiary hearing or reentry of the order.
A trial court must conduct an evidentiary hearing or reenter a prior order when a party claims under Rule 1.540(b) that he did not receive timely notice of the order, as such a motion is facially sufficient and may warrant relief if the allegations are proven true.
[1] A motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) is facially sufficient and may warrant relief when a party alleges he did not receive tim…
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b), claiming he did not receive a copy of the trial …
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The appellant appeals the trial court’s order denying his motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b). In this motion, the appellant claimed that he did not receive a copy of the trial court’s order denying his motions for declaratory judgment until after the time for initiating an appeal had expired. The appellant requested that the trial court vacate and then reenter the prior order so as to preserve his right to appeal. Cases such as Griffin v. Florida Parole Commission, 727 So.2d 1092 (Fla. 1st DCA 1999), and Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980), suggest that such relief should be afforded under rule 1.540(b) when a party does not receive a copy of the order as entered by the court. The appellant’s motion is thus facially sufficient and may warrant relief if the allegations therein are established as accurate and true. The appealed order is therefore reversed and the case is remanded to the trial court. On remand, the trial court is directed to conduct an evidentiary hearing as to whether the appellant received the prior order before the time to initiate an appeal expired or, in the alternative, to reenter the prior order so that the appellant may appeal that order.
VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.
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Authorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- Griffin v. Fla. Parole Comm'n, 727 So. 2d 1092 (Fla. 1st DCA 1999)