Saturday, October 10, 2009

"Miscarriage Of Justice" Leads Fourth District To Quash Order Below

In Shell v. Foulkes (4D08-4148), the Fourth District quashed three orders of the circuit court sitting in its appellate capacity because "the Circuit Court departed from the essential requirements of law, failing to provide petitioner due process and apply the correct law; hence a miscarriage of justice."

The county court entered an order of default, however, not a final judgment.  Two separate notices of appeal were filed and two separate circuit court judges reviewed the default - one reversing and one affirming.  However, "the Circuit Court exceeded its appellate jurisdiction. An order merely entering a default without a consequent final judgment is not a final order."

The petitioner then filed for relief from the default under Rule 1.540(b).  The county court denied the motion based upon the mandate of the circuit court's order affirming the default and another appeal was filed in the circuit court.  The circuit court "dismissed the appeal on the grounds that the dismissal of a rule 1.540(b) motion was not appealable. This was a departure from the essential requirements of law because it is appealable as a final order."  The Fourth District summarized:
the Circuit Court lacked jurisdiction over the attempts to appeal the non-final order of the County Court entering the default. Consequently the Mandate of the Circuit Court affirming the default had no effect. Yet the Circuit Court did have final appeal jurisdiction as to the County Court’s dismissal of the motion under rule 1.540(b) because it was a final order on that subject. The only possible outcome for the later appeal to the Circuit Court was to reverse the dismissal and direct the County Court to consider the motion for relief on the merits.


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