State Farm Mut. Auto. Ins. Co. v. JUDGES, ETC., 405 So. 2d 980 (Fla. 1981). · Go Syfert
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State Farm Mut. Auto. Ins. Co. v. JUDGES, ETC., 405 So. 2d 980 (Fla. 1981). Cases Citing This Book View Copy Cite
“an appellate court's power to recall its mandate is limited to the term during which it was issued.”
50 citation events (15 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Bell (fla, 2008-09-25)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State v. Bell
Fla. · 2008 · quote attribution · 1 verbatim quote · confidence high
an appellate court's power to recall its mandate is limited to the term during which it was issued.
discussed Cited as authority (rule) McPhee v. State
Fla. Dist. Ct. App. · 2016 · confidence medium
Co. v. Judges of the District Court, 405 So.2d 980, 982 (Fla.1981) is no longer valid in light of the Florida State legislature’s repeal of Florida Statute section 35.10 by Laws 2013, c. 2013-25, § 1, effective January 1, 2014.
cited Cited as authority (rule) Ardis v. Pensacola State College
Fla. Dist. Ct. App. · 2013 · confidence medium
Court of Appeal, Fifth Dist., 405 So.2d 980, 982 (Fla.1981).
cited Cited as authority (rule) Mitchell v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
Court of Appeal, Fifth Dist., 405 So.2d 980, 982 (Fla.1981).
cited Cited as authority (rule) Hampton v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Court of *105 Appeal, Fifth Dist., 405 So.2d 980, 982 (Fla.1981) (observing that an appellate court's power to recall its mandate is limited to the term in which it was issued).
cited Cited as authority (rule) Davis v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Court of Appeal, 405 So.2d 980, 982-83 (Fla.1981).
cited Cited as authority (rule) Pinecrest Lakes, Inc. v. Shidel
Fla. Dist. Ct. App. · 2001 · confidence medium
State Farm, 405 So.2d at 982-83; Maffea, 483 So.2d at 831 ; Interest of D.I., 477 So.2d at 72 .
discussed Cited as authority (rule) Bottoson v. Singletary
Fla. · 1997 · confidence medium
Section 25.051, Florida Statutes (1983), mandated that this Court “shall hold two terms in each year ... commencing respectively on the first day of January and July.” As we made clear in State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, 405 So.2d 980, 982-83 (Fla.1981), “[a]n appellate court’s power to recall its mandate is limited to the term during which it was issued.” We denied rehearing on Bot-toson’s direct appeal on February 7, 1984, and the opinion in Neil was not released until September 27, 1984.
discussed Cited as authority (rule) Thompson v. Singletary
Fla. Dist. Ct. App. · 1995 · confidence medium
Co. v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980, 982 (Fla. 1981), the appellate court affirmed a case without opinion during one term of court, and approximately 4 months later, during the next term of court, the appellant filed a motion for rehearing.
discussed Cited as authority (rule) Dyer v. City of Miami Employees' Retirement Board
Fla. Dist. Ct. App. · 1987 · confidence medium
Court of Appeal, Fifth Dist., 405 So.2d 980, 981 (Fla.1981); McGregor v. Hammock, 114 Fla. 259 , 154 So. 191 (1934); see Martin v. Martin, 139 So.2d 406, 408 (Fla.1962); Wheeler Fertilizer Co. v. Rogers, 49 So.2d 83, 86 (Fla.1950); Chapman v. St.
cited Cited as authority (rule) Maffea v. Moe
Fla. Dist. Ct. App. · 1986 · confidence medium
E.g., State Farm Mutual Automobile Insurance Company v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980, 982-83 (Fla. 1981).
discussed Cited "see" Clark v. Florida (2×)
SCOTUS · 1986 · signal: see · confidence high
See State Farm Mutual Automobile Insurance Co. v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981), reversing 390 So.2d 138 (Fla.App.).
cited Cited "see" State v. In the Interest of D.I.
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981); Chapman v. St.
discussed Cited "see" Theisen v. Old Republic Insurance Co.
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981); Orange Federal Savings and Loan Association v. Dykes, 444 So.2d 1152 (Fla. 5th DCA 1984).
discussed Cited "see" Owens v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
See State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981), and United Faculty of Florida v. Board of Regents, State University System, 423 So.2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965).
cited Cited "see" United Faculty of Florida v. Board of Regents
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See State Farm Mutual Automobile Insurance Company v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla. 1981).
Retrieving the full opinion text from the archive…
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,
v.
JUDGES OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT, Respondents.
60035.
Supreme Court of Florida.
Nov 5, 1981.
405 So. 2d 980
Sundberg.
Cited by 3 opinions  |  Published

[*981] Thomas G. Kane of Driscoll, Langston, Layton & Kane, Orlando, for petitioner.

Jim Smith, Atty. Gen. and Mitchell D. Franks, Asst. Atty. Gen., Tallahassee, for respondents.

SUNDBERG, Chief Justice.

We here confront the issue of whether the District Court of Appeal, Fifth District, may utilize the en banc rehearing rule as a toehold to extend ad infinitum its jurisdiction whenever intradistrict conflict arises. We hold that it may not.

On May 7, 1980, the district court affirmed without opinion the trial court's dismissal of plaintiff's action in Rogers v. State Farm Mutual Automobile Insurance Co., 383 So.2d 1221 (Fla. 5th DCA 1980). Almost two months after the end of the term[1] in which this PCA decision and mandate were issued, Rogers filed a motion for rehearing. The court denied the motion on November 12, 1980, because it was not filed within fifteen days of the May 7th decision, the time period prescribed by Florida Rule of Appellate Procedure 9.330(a).[2] Upon its own motion, however, the court decided to reconsider the case, basing its authority to review on Florida Rule of Appellate Procedure 9.331(c),[3] which governs rehearings en banc. It then reversed Rogers as being in[*982] direct conflict with one of the court's later decisions.[4]Rogers v. State Farm Mutual Automobile Insurance Co., 390 So.2d 138 (Fla. 5th DCA 1980).

State Farm filed a petition for common law certiorari with this Court seeking to vacate the en banc court's November 12th judgment because it lacked jurisdiction. We have treated the petition as an application for writ of mandamus. Our jurisdiction is found under article V, section 3(b)(8), Florida Constitution (1980).

Respondents initially deny the propriety of a writ of mandamus as a remedy in this case, claiming that the district court acted within its discretion in reversing its prior judgment. Yet it is painfully clear that if the district court had no jurisdiction to act as it did, the question of discretion is irrelevant:

Where the action of a ... court in vacating a judgment is wholly void, he has no discretion as to whether or not he will vacate the order vacating the judgment and make an order of reinstatement.
... .
And mandamus will lie to compel a court to vacate a judgment, order, or decree which it was entirely without jurisdiction to make, there being no adequate remedy by appeal, error, or otherwise.

State ex rel. Melbourne State Bank v. Wright, 107 Fla. 178, 184-85, 145 So. 598, 601 (1932) (citation omitted).

The thrust of respondents' argument on the merits is that although jurisdiction of the district court would normally end with the term, Florida Rule of Appellate Procedure 9.331(c) extends the jurisdiction of the court indefinitely for the sole purpose of correcting intradistrict conflict by means of en banc rehearings. Respondents reason that because the Supreme Court had jurisdiction to resolve intradistrict conflict on the date rule 9.331 became effective,[5] and because the Committee Note[6] to the rule indicates the en banc proceeding is to be utilized in situations analogous to the Supreme Court's conflict jurisdiction, therefore the district court is vested with jurisdiction to resolve intradistrict conflict. Furthermore, it is asserted that this jurisdiction is eternal because no time limit is specifically prescribed by the rule.

Without wading through the various shortcomings we perceive in the argument, it will suffice to state that we simply do not view the jurisdictional powers of an appellate court as encompassing such a grandiose temporal spectrum. All things must have end, even a district court's power to correct inconsistencies. The reasons for this form the bedrock of Anglo-American jurisprudence: "There must be an end of litigation. Public policy, as well as the interests of individual litigants, demands it, and the rule just announced is indispensable to such a consummation." Lovett v. State, 29 Fla. 384, 401, 11 So. 176, 179 (1892). See also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 355, 4 L.Ed. 97 (1816). And the "rule" which determined this end is set out in Lovett and several other Florida cases. An appellate court's power to recall its mandate is limited to the term during[*983] which it was issued. See Chapman v. St. Stephens Protestant Episcopal Church, Inc., 105 Fla. 683, 138 So. 630 (1932); Washington v. State, 92 Fla. 740, 110 So. 259 (1926).

We do not see rule 9.331(c) as abrogating this well established common-law precedent that a court's power to alter its mandate generally ends with the term the mandate issued. Rule 9.331(c) is not a jurisdictional grant; it is a rule of procedure. We therefore conclude that the precedent limiting an appellate court's jurisdiction is equally applicable to en banc rehearing proceedings.

Because the recall of mandate by the district court was made after the term in which the original mandate issued, the court was without jurisdiction. Its actions are thus void. See Wright. Accordingly, the petition for writ of mandamus is granted, and the writ is issued directing the District Court of Appeal, Fifth District, to vacate its last judgment in this cause and to reinstate its former.

It is so ordered.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

1 Two terms a year of the district courts are set by statute. Section 35.10, Florida Statutes (1979), reads in part: "Regular terms. — The district court of appeal shall hold two regular terms each year at its headquarters, commencing respectively on the second Tuesday in January and July."

Time for Filing; Contest; Reply. A motion for rehearing or for clarification of decision may be filed within 15 days of an order or within such other time set by the court. The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended. The motion shall not re-argue the merits of the court's order. A reply may be served within 10 days of service of the motion.

3 Fla.R.App.P. 9.331(a), (c):

En Banc Proceedings: Generally. A majority of the judges of a district court of appeal may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court's decisions.

... .

Rehearings En Banc.

(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration in necessary to maintain uniformity in the court's decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

4 State Farm Mutual Automobile Ins. Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), cert. granted, No. 59, 706 (Fla. Feb. 16, 1981).
5 January 1, 1980.
6 The Committee Note reads in part:

This rule is patterned after the en banc rule of the United States Court of Appeals for the Fifth Circuit and should be used sparingly.

Subsection (a) provides that a majority vote of a district court is necessary to set a case for rehearing or rehearing en banc. All judges in regular active service, not excluded for cause, will constitute the en banc panel. Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court's decisions, is the equivalent of decisional conflict as developed by Supreme Court precedent in the exercise of its conflict certiorari jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity.