Opinion
No. 80-334.
June 24, 1980. Rehearing Denied July 18, 1980.
Petition for review from the Circuit Court, Dade County, Leonard Rivkind, Jr., J.
Greene Cooper and Joan M. Bolotin, Miami, for petitioner.
Stabinski, Funt, Levine Vega and Regina F. Zelonker, Miami, for respondent.
Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
This petition for certiorari seeks review of an order of the Circuit Court for Dade County, entered in its appellate capacity, dismissing an appeal from the County Court of Dade County.
The order of dismissal under review reads as follows:
This is an appeal from a post decretal order of civil contempt entered on March 5, 1979. Notice of Appeal was filed on April 12, 1979. Appellant's "Motion to Set Aside Order and Award of Fees", filed in the trial court on March 15 and denied on April 2, did not toll the time required for filing a notice of appeal from the order of March 5. Even if we consider the aforesaid motion to be a motion for rehearing, it is not authorized by Rule 1.530 of the Florida Rules of Civil Procedure and, ergo, does not toll the appeal period during its pendency. The time for taking an appeal is tolled when a timely motion for rehearing is directed to an order granting summary judgment or a final judgment in a non-jury trial. The order of civil contempt sub judice is not in either category. It is ordered sua sponte that the appeal be and is hereby dismissed. See Wagner v. Bieley, 263 So.2d 1 (Fla. 1972).
It is petitioner's contention that the circuit court departed from the essential requirements of law in holding (1) that the motion to set aside order and award of fees filed in the trial court on March 15, 1979, and denied on April 2, 1979, did not toll the time required for filing a notice of appeal from the order of March 5, 1979; (2) that even if the motion be considered a motion for rehearing, it was not authorized by Fla. R.Civ.P. 1,530, and thus did not toll the period during its pendency.
We find merit in petitioner's contentions and quash the order of the circuit court dismissing the appeal as untimely. Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979); Clearwater Federal Savings Loan Association v. Sampson, 336 So.2d 78 (Fla. 1976); Khem-Troll, Inc. v. Edelman, 351 So.2d 1040 (Fla. 4th DCA 1976); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976); Jones v. Denmark, 259 So.2d 198 (Fla. 3d DCA 1972); Kirby v. Speight, 217 So.2d 871 (Fla. 1st DCA 1969).
The petition for writ of certiorari is granted and the order dismissing the appeal is quashed with directions to the circuit court to reinstate the appeal and decide the merits of the cause.
So ordered.