RAYMOND EUBANKS, vs STATE OF FLORIDA,
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Third District Court of Appeal State of Florida Opinion filed June 10, 2020. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D19-1529; 3D19-1509; 3D19-1510; 3D19-1511; & 3D19-1512 Lower Tribunal Nos. 17-215-M; 18-309-M; 16-1030-P; 18-311-M; 17-501-M; 18-312-M; 17-502-M; 18-313-M; 16-707-M & 18-314-M ________________ Anthony Garcia, et al., Appellants, vs. The State of Florida, Appellee. Appeals from the Circuit Court for Monroe County, Appellate Division, Timothy J. Koenig, Judge. Michael Ufferman Law Firm, P.A., and Michael Ufferman (Tallahassee), for appellants. Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee. Before SALTER, LINDSEY and MILLER, JJ. SALTER, J. These five consolidated cases, initiated as appeals from orders of the Monroe County Circuit Court appellate division regarding petitions for writs of prohibition to the county court, present intricate procedural and jurisdictional questions that will interest a narrow group of practitioners and clarify those questions should they arise again. Readers unfamiliar with, or uninterested in, the interrelationships among the Florida Rules of Civil Procedure, Judicial Administration, Criminal Procedure, and Appellate Procedure may read on at their peril. For the reasons detailed below, we conclude that the conceded error of the first attorney in the representation of all five county court defendants (who is not the attorney of record for them as appellants here) should have been pursued through a remedy available here rather than in the circuit court appellate division. A “general provision” in the Florida Rules of Appellate Procedure, Rule 9.040, permits us to exercise “such jurisdiction as may be necessary for a complete determination of the cause.” In doing so in this case, we “treat” the notice of appeal as a particular form of petition available under Florida Rule of Appellate Procedure 9.141(c). We deny further relief based on our standards for discretionary review of such petitions and an analysis of the underlying issue sought to be raised by the appellants under Florida Rule of Judicial Administration 2.516. After the necessary procedural analysis—jurisdiction is important, after all— we conclude that the circuit court appellate division’s substantive conclusion was 2 correct (the refusal to vacate the initial appellate division orders denying the petitions for writs of prohibition to the county court) and we deny further relief here. Facts and Procedural History In five individual cases, defendants in county court criminal misdemeanor cases (appellants here) filed motions for discharge in that court based on alleged speedy trial violations. Each of the five motions was denied by the county court. The defendants then petitioned the circuit court appellate division for writs of prohibition to preclude further prosecution of the five county court criminal cases. Each petition for prohibition was denied in an order which was served electronically by the court per Florida Rule of Judicial Administration 2.516(h). Some ten weeks after the orders were served, the first attorney for the petitioning defendants filed motions advising the circuit court appellate division that the attorney had not seen the orders denying the petitions for prohibition until well after the expiration of the thirty-day jurisdictional period for seeking further review in this Court. In nearly identical motions in the five cases, each petitioning defendant moved the circuit court appellate division to vacate that court’s prior order denying prohibition and to enter a new order so that further review could be sought to this Court. Each of the “motions to vacate” the appellate division’s orders denying the petitions for a writ of prohibition alleged that the first defense attorney “did not 3 become aware of the [denial] order until” 60 days after it was actually electronically served by the court.1 Importantly, the motions to vacate did not specify any rule of civil, criminal, or appellate procedure authorizing such a motion, but they did acknowledge that the time to file an appeal or petition for certiorari to this Court had expired by several weeks. The first defense attorney’s affidavit attached to the motions swore that he “did not observe the E-mail, sent to hal@halschuhmacher.com, serving the Order on Petition for Writ of Prohibition when it was first received and only became aware of the Order on May 7, 2019.” The record confirms that the referenced email address for that attorney was correct, and a copy of the actual emails from the circuit court appellate division is attached to the affidavit in each of the respective cases. Each email came from the judicial assistant to the circuit judge of the Monroe County Circuit Court appellate division; had a “from” email address including “@keyscourts.net,” included the case name in the subject line, and said, “Good afternoon: Please see attached Order. Thank you.” The attachment was an electronic PDF image of the order in that case identified by the parties and “Order on Pet. For Writ of Prohibition.” Each email also included, below the information for the judicial assistant and judge, the seal of 1 The dates of the motions, orders, and petitions among the five appellate division cases varied slightly, and not in material ways. In each case, the order denying the petition for a writ of prohibition in the circuit court appellate division was entered well over 30 days before the “motion to vacate” was filed. 4 the Monroe County Circuit Court. Each of the orders was routinely docketed in its respective electronic case file maintained by the clerk of the circuit court. The basis for each “motion to vacate” was contended to be the failure of each email served electronically by the circuit court appellate division with the denial order to contain the all upper-case legend “SERVICE OF COURT DOCUMENT,” purportedly required by Florida Rule of Judicial Administration 2.516(b)(1)(E)(i). The circuit court appellate division denied each motion to vacate in an order which carefully explained that subdivision 2.516(h) of that Rule separately applies to the service of orders by a court, while 2.516(b)(1)(E) specifically applies to documents served by an “attorney or party.” Rule 2.516(h) does not incorporate the all-uppercase legend “SERVICE OF COURT DOCUMENT” requirement, and in fact 2.516(h)(3) further specifies that subdivision (h) “is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action.” These orders were timely appealed to this Court. As a result of the Court’s jurisdictional screening process, an order to show cause issued for the appellants to show why the consolidated cases should not be treated as petitions for a writ of certiorari rather than as appeals.2 The appellants filed a response contending that 2 The order to show cause did not direct the State to respond. Following the State’s review of the appellants’ initial brief, however, and a week before filing its own answer brief, the State filed a motion to dismiss the appeals based on the 5 the cases should remain appeals taken from final orders, based on two cases discussed in greater detail below, Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000), and Rosso v. Golden Surf Towers Condominium Ass’n, 711 So. 2d 1298 (Fla. 4th DCA 1998). At that preliminary point, and before briefing commenced, this Court discharged the order to show cause and directed that the cases proceed as appeals from final orders under Florida Rule of Appellate Procedure 9.110. Analysis If the cases before us were to be analyzed as civil cases, we would consider the vaguely-worded “motions to vacate” as motions seeking relief in the circuit court appellate division under Florida Rule of Civil Procedure 1.540(b)(1) (excusable neglect) or 1.540(b)(4) (void judgment or decree), though the motions lack the kinds of verified allegations and record appropriate to such motions (for example, the first defense attorney’s neglect is commendably conceded, but his affidavit contains no explanation as to why the email and order escaped his attention for sixty days). The Fourth District cases cited above and relied upon by the appellants in their motions to vacate and their briefs here, Cohen and Rosso, originated as civil cases, jurisdictional issues described in this opinion. The appellants responded to the motion to dismiss as part of their reply brief. 6 and those opinions address orders or judgments served improperly, or never served, such that counsel for the movant/appellant never received them. In contrast, the cases before us involved petitions to an appellate court—the appellate division of the circuit court—from underlying criminal cases. When the petitions for a writ of prohibition were initially denied by the circuit court appellate division, the petitioners could have sought discretionary review of those decisions by filing petitions for second-tier certiorari in this Court under Florida Rule of Appellate Procedure 9.030(b) within thirty days from the rendition of the circuit court appellate division orders. But because the denial orders went unnoticed by the first defense counsel for the petitioners, no such petitions were timely filed. The petitioners instead filed a vaguely worded motion “to vacate” the denial orders in the same court that issued the orders. This might have been appropriate under Florida Rule of Civil Procedure 1.540(b) in an action “of a civil nature,” because Florida Rule of Civil Procedure 1.010 makes those rules applicable to “all actions of a civil nature . . . .” But in the present case, the petitioners sought relief in underlying county court criminal cases. The appellants in this case have not provided any applicable authority which would suggest that Rule 1.540(b) would apply in such a case, or that the denial of such a motion involving an underlying criminal case would be an appealable order. 7 To the contrary, Sutton v. State, 975 So. 2d 1073 (Fla. 2008), clarifies the proper procedure for seeking further review of an order ruling on a petition for a writ of prohibition directed to a county court case—a petition for discretionary review of a final order of a circuit court acting in its review capacity, within our jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(2). Moreover, the Florida Rules of Appellate Procedure specify a remedy for a defendant in a criminal case when the proper appellate remedy in this Court has not been invoked within an otherwise applicable jurisdictional time limit. That remedy is a petition seeking belated discretionary review pursuant to Florida Rule of Appellate Procedure 9.141(c). In this case, the defendants in the county court, petitioners in the circuit court appellate division, would have filed such a petition in this Court explaining the second-tier, discretionary relief sought, including their request for such review beyond the otherwise applicable time limit. That petition would have been filed instead of the motion to vacate the initial denial orders by the circuit court appellate division. So, confronted with a record which demonstrates that the wrong remedy was pursued in the wrong court by the appellants, what is the proper course for disposition of the five cases ultimately filed as appeals here? The answer to that question is found by returning to Florida Rule of Appellate Procedure 9.040. Part (a) of that Rule confirms that we have “such jurisdiction as may be necessary for a 8 complete determination of the cause.” Part (b)(1) of the Rule addresses the process for dealing with a case commenced in an inappropriate court: “that court shall transfer the cause to an appropriate court.” This labyrinth of procedural traffic signs was not clearly marked when the circuit court appellate division addressed the motions to vacate. That court took the bull by the horns and considered whether the petitioners had properly interpreted the central issue—whether the initial denial orders were void or otherwise subject to being vacated because of their failure to comply with Florida Rule of Judicial Administration 2.516(b)(1)(E)(i). But for the sake of clarifying a difficult set of issues, we conclude that the appellate division lacked the jurisdiction to consider the untimely, unauthorized motions to vacate the denial orders. The appellate division, based on the underlying criminal charges and having concluded its own first-tier, discretionary review of the county court’s speedy trial ruling, should have transferred the case to this Court for treatment as a petition for belated (further, second-tier) discretionary review. In order to completely determine these cases, we treat the appeals and record before us as such petitions. 3 Having reviewed the petitions and related records in 3 In doing so, we vacate our initial order allowing the cases to proceed as appeals. The State’s motion to dismiss and the appellants/petitioners’ briefs on these issues were not before us at that time. 9 each of the consolidated cases under the standards applicable to such second-tier petitions, we deny each of them. Appeals treated as petitions for belated discretionary review, and each petition denied. 10
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