STATE
v.
POWELL ET AL.
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The Florida Supreme Court reviews a forfeiture order that has not yet become final judgment. The Court, following its companion decision in State v. Maxie, addresses whether a motion to vacate based on jurisdictional defects must comply with procedural timing requirements under section 903.30. The Court holds that jurisdictional attacks are not governed by those timing restrictions and treats the appeal as a certiorari petition.
A motion to vacate an order of forfeiture that attacks jurisdictional facts is not subject to the timing requirements of section 903.30. Though a forfeiture order may not be final for direct appeal purposes, certiorari review is available when jurisdictional questions are presented. The order of forfeiture is quashed and the case is remanded for further proceedings consistent with State v. Maxie.
“the error complained of was the denial by the court of a motion to vacate the order or judgment of forfeiture upon the ground that the motion was not timely made under the provisions of section 903.30, Florida Statutes 1951, F.S.A.”
Identifies the specific procedural error at issue in the case
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Join FLexlaw to unlock all legal intelligenceA court entered an order of forfeiture against Powell and others. Powell moved to vacate the forfeiture order, claiming the court lacked jurisdiction …
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SEBRING, Justice.
This is a companion case to State v. Maxie, Fla., 66 So. 2d 670, and involves substantially the same facts and legal issues, except that final judgment has not yet been entered in the lower court pursuant to the order of forfeiture herein.
As will appear from the opinion of this Court in State v. Maxie, supra, the error complained of was the denial by the court of a motion to vacate the order or judgment of forfeiture upon the ground that the motion was not timely made under the provisions of section 903.30, Florida Statutes 1951, F.S.A. The ruling in State v. Maxie is controlling here as to the inapplicability of section 903.30 where, as in this case, the motion to vacate involves an attack on jurisdictional facts upon which the authority of the court to enter the order or judgment was predicated.
Although the order of forfeiture in this case may not be considered a judgment final in nature for appeal purposes, review by this Court may nevertheless be obtained on certiorari when a jurisdictional question is raised. See Hartford Accident & Indemnity Co. v. City of Thomasville, Ga., 100 Fla. 748, 130 So. 7. And section 59.45, Florida Statutes 1951, F.S.A., provides:
“If an appeal be improvidently taken where the remedy might have, been more properly sought by certiorari, this alone shall not be a ground for dismissal; but the notice of appeal and the record thereon shall be regarded and acted on as a petition for certiorari duly presented to the supreme court.”
Under the facts of this case it appears to us that the appeal should be treated as a certiorari proceeding, by virtue of the provisions of section 59.45 supra, and being so treated, that the order, sought to be reviewed should be quashed with directions that further proceedings be had in the court below in accordance with the views, expressed in State v. Maxie, supra.
It is so ordered.
ROBERTS, C. J., TERRELL, J., and DAYTON, Associate Justice, concur.
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Kauffman v. Annabel King, 89 So. 2d 24 (Fla. 1956)…v. Bird, 1942, 149 Fla. 570, 6 So. 2d 541; Seaboard Air Line R. Co. v. Timmons, Fla., 1952, 61 So. 2d 426; Atlantic Coast Line R. Co. v. Allen, Fla. 1949, 40 So. 2d 115; Saffran v. Adler, 1943, 152 Fla. 405, 12 So. 2d 124; State v. Powell, Fla.1953, 66 So. 2d 672. The instant case is an exceptional one, under the above rule. The trial judge departed from the essential requirements of the law in denying to the resident defendants a privilege granted, to them by statute; and we agree with counsel for the peti…
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Huie v. State, 92 So. 2d 264 (Fla. 1957)…wed this aspect of the matter because it presented a question of jurisdiction in a bond forfeiture proceeding even though the order involved was interlocutory in nature. We have done this in. consonance with our opinion in State v. Powell, Fla.1953, 66 So. 2d 672. We there held that where a motion to vacate an order for forfeiture of a bond raises jurisdictional questions we would consider the alleged error on a petition for certiorari. In that case we treated notice of appeal as a petition for certiorari un…1 / 2
Authorities Cited
- Hartford Accident & Indem. Co. v. City of Thomasville, 100 Fla. 748 (Fla. 1930)
- State v. Maxie, 66 So. 2d 670 (Fla. 1953)