WILLIAM PAUL DABBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Fourth District Court of Appeal denied the State's motion for rehearing in a murder case where the court had previously reversed and remanded due to discovery violations at trial. The State attempted to raise a new argument that no discovery violation occurred, contrary to its previous position in the answer brief.
The motion for rehearing is denied. The State cannot raise for the first time in a motion for rehearing an argument that no discovery violation occurred when its answer brief acquiesced to the trial court's finding of a discovery violation. The trial court did not abuse its discretion in finding a discovery violation, and the court's prior reversal based on procedural prejudice from that violation is affirmed.
[1] A motion for rehearing is strictly limited to calling the court's attention to something obviously overlooked or misapprehended and is not a vehicle for continued advocac…
[2] An issue not raised previously cannot be raised for the first time in a motion for rehearing.
Previewing 2 of 5 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 proper function of a [motion] for rehearing is to present to the court in clear and concise terms some point that it overlooked or failed to consider; only this and nothing more.”
Establishes the narrow purpose of a motion for rehearing, which the State violated by raising a new argument already decided.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Dabbs was charged with murder. At trial, discovery violations occurred at the beginning of the trial. Appellant intended to raise a self-def…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Procedural Prejudice cases and more on FLexlaw
ON MOTION FOR REHEARING
We deny the State’s motion-for rehearing, wherein the State relies upon an argument contrary to that raised previously. *476Our earlier opinion concluded that, based on the trial court’s finding that there were, discovery violations ■. at the beginning of Appellant Dabbs’ murder trial, the trial court reversibly erred in not granting a mistrial.
Because it is the “exception to the norm,” a motion for rehearing filed under Florida Rule of Appellate Procedure 9.330 “should be done under very limited circumstances.” Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100, 1101 (Fla. 4th DCA 1993). “The proper function of a [motion] for rehearing is to present to the court in clear and concise terms some point that it overlooked or failed to consider; only this and nothing more.” Dep’t of Revenue v. Leadership Hous., Inc., 322 So.2d 7, 9 (Fla. 1975) (quoting Tex. Co. v. Davidson, 76 Fla. 478, 80 So. 558, 659 (Fla. 1918)). A motion for' rehearing is “strictly limited to calling [the Court’s] attention— without argument—to something ,.. obvi- . ously overlooked or misapprehended” and “is not a vehicle for counsel or the party to continue its attempts at advocacy.” Goter v. Brown, 682 So.2d 155, 158 (Fla. 4th DCA 1996).
In its motion for rehearing, the State maintains that “[i]t is clear .., that ... no discovery violation occurred.” This is an interesting argument, inasmuch as the State’s answer brief stated that “Appellant failed to show an abuse of discretion in finding there was a discovery violation” and that “[t]he, only question ..... to be decided on appeal is. whether ‘there, is a reasonable probability that the defendant’s trial preparation or strategy would, have been materially different had the violation not occurred,’ ” An issue not raised previously cannot be raised for the first time in a motion for rehearing. Ayer v. Bush, 775 So.2d 368, 370 (Fla. 4th DCA 2000); Fiesta Fashions, Inc. v. Capin, 450 So.2d 1128, 1129 (Fla. 1st DCA 1984). Our earlier reversal opinion is rooted in the trial court’s determination that there had been a discovery violation and the answer briefs acquiescence to that holding. An “on second thought” argument made in a motion for rehearing will not be entertained.
In any case, we. cannot find an abuse of discretion in the trial court’s holding that there was a discovery violation. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (a trial court abuses its discretion “only where no reasonable man would take the view adopted”) (quoting Delno n Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)). Accordingly, the State’s argument that our opinion conflicts with Huffman v. State, 472 So.2d 469 (Fla. 1st DCA 1985), ’is rejected. In Huffman, the trial court found no discovery violation. Id. at 472. The State’s other principal argument in its motion for rehearing .is similar to its position at trial and in its answer brief:, the purported discovery violation was attributable to an: unanticipated defense introduced in Appellant’s opening argument and the totality of his defense was not proeedurally prejudiced by the .State’s discovery violation. This argument was already addressed in our opinion. A motion for rehearing should not be used “as a vehicle to reargue the merits of the court’s decision or to express displeasure with its judgment.” Whipple v. State, 431 So.2d 1011, 1013 (Fla. 2d DCA 1983).
There is some evidence in the record that the State was or should have been on notice that Appellant would rely on a self-defense argument premised on a claim that he believed the victim had access in the vehicle (where the victim whs found dead) to one' of his (the victim’s) guns. Further, we have already determined that “the trial court erred in determining that Appellant,was not proeedurally prejudiced by the State’s failure to disclose, certain evidence [and a witness, and. that the] ap*477propriate action below would have been to declare a mistrial and conduct a new trial with a jury that had not been exposed to Appellant’s now-eviscerated theory of defense.”
We deny the State’s “request [of] the court to change its mind as to a matter which has already received the careful attention of the judges.” Reitzes, 631 So.2d at 1101 (quoting State ex rel. Jaytex Realty Co. v. Green, 105 So.2d 817, 818-19 (Fla. 1st DCA 1958)).
Denied.
Warner and Levine, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Mercado v. Sec'y, Fla. Dep't of Corr., 119 F.4th 1261 (11th Cir. 2024)…ore difficult to succeed on them USCA11 Case: 22-11903 Document: 49-1 Date Filed: 10/21/2024 Page: 27 of 29 22-11903 JILL PRYOR, J., Concurring 11 than it would have been before the appellate court decided the ap- peal. See, e.g., Dabbs v. State, 230 So. 3d 475, 476 (Fla. Dist. Ct. App. 2017) (“A motion for rehearing is strictly limited to calling the Court's attention—without argument—to something obviously overlooked or misapprehended and is not a vehicle for counsel or the party to continue its attempts…
Authorities Cited (11 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Delno v. Mkt. ST. RY. Co., 124 F.2d 965 (9th Cir. 1942)
- State of Fla. ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958)
- Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983)
- Fiesta Fashions, Inc. v. Matilde Capin and the Division of Workers' Compensation, 450 So. 2d 1128 (Fla. 1st DCA 1984)
- Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100 (Fla. 4th DCA 1993)
- Goter v. Brown, 682 So. 2d 155 (Fla. 4th DCA 1996)
- Ayer v. Bush, 775 So. 2d 368 (Fla. 4th DCA 2000)
- Dep't OF Revenue of the State of Fla. v. Leadership Hous., Inc., 322 So. 2d 7 (Fla. 1975)
- Huffman v. State, 472 So. 2d 469 (Fla. 1st DCA 1985)