Dames v. Dames, 156 So. 2d 532

Dames v. Dames

156 So. 2d 532 | Fla. Dist. Ct. App. | 1963

Concurrence Opinion

HENDRY, Judge

(concurring specially).

The majority opinion holds that under Florida Appellate Rule 3.16(c) the review of a cost judgment must be commenced within the 20 days from the “entry” of the cost judgment.

I agree with the majority conclusion that the petition for review in this case must be dismissed in that it is untimely. However, I can not agree that the use of the word “entry” instead of “rendition” has any significance.

Our Supreme Court has held that both words mean “recorded in the minutes of the court.”1 Moreover, even before the word “rendition” was specifically used or defined in the Florida Appellate Rules, our courts recognized that a timely motion for rehearing or new trial tolls the running of appeal time. In fact, Florida Appellate Rule 6.2, relative to criminal appeals, provides for the taking of an appeal by the defendant within 90 days after judgment is *534“entered”, etc. It appears to be uniformly held that' the 90 day period is tolled pending the disposition of a timely and proper motion for a new trial.2

In this case the petitioner relied upon a motion for rehearing of a cost judgment to toll the time for filing his petition for review of said judgment. I do not find any provision which allows the filing of a motion for rehearing of a cost judgment. Therefore, such motion could not extend the time for filing the petition for review beyond 20 days from the entry of a cost judgment. I would affirm for the reasons stated.

. Brenner v. Gelernter, Fla.1956, 90 So.2d 306.

.See Shelby v. State, 155 Fla. 182, 20 So. 2d 500, 21 So.2d 787; Lee v. State, 128 Fla. 319, 174 So. 589; Miller v. State, Fla.App.1961, 134 So.2d 513.

Lead Opinion

HORTON, Judge.

Joseph Dames seeks, by petition under Rule 3.16, Florida Appellate Rules, 31 F. S.A., a review of a judgment for costs. We conclude that the petition should be dismissed upon the ground that it was not timely filed as required by Rule 3.16(c), supra. This rule provides that a petition to review a cost judgment be filed “within 20 days after the entry of said judgment[Emphasis supplied.]

The record before us discloses that the cost judgment sought to be reviewed was entered on April 26, 1963. A petition for rehearing, allegedly duly filed, was denied on June 27, 1963. The petition to review costs was filed in this court on July 17, 1963.

Unlike the provisions of Rule 3.16(c), supra, the rule governing appeals generally in civil cases, Rule 3.2(b), Florida Appellate Rules, permits appeals from judgments, orders or decrees "within 60 days from the rendition of the * * * order, judgment or decree * * *.” [Emphasis supplied] Rule 1.3, Florida Appellate Rules defines rendition as the signing, recording, and if recording is not required, then the filing of the order, judgment or decree. This rule further provides:

"Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.” [Emphasis supplied]

Obviously the rule makers, by the use of the word “entry” did not intend to permit the tolling of the time for filing petitions for the review of cost judgments; otherwise they would have used the word “rendition.” Undoubtedly they were well aware of the meaning as well as the effect of the two words used. It is unlikely that the promulgators of the appellate rules would have intended the same result by the use of different words. Cost judgments as a rule are post-judgment in character and as such, their review is by petition with accelerated procedural steps.

The court having noted the jurisdictional defect, ex mero motu concludes that the petition should be dismissed.

It is so ordered.