Opinion
Case No. 5D99-1168.
Opinion filed June 1, 2000.
Appeal from the Circuit Court for Orange County, Walter Komanski, Judge.
Charles R. Harrison and Scott C. Roberts of the Law Firm of Charles R. Harrison, Winter Park, for Appellant.
Vincent J. Profaci of Vincent J. Profaci, P.A., Winter Park, for Appellee.
ON MOTION FOR REHEARING AND CLARIFICATION
The appellee, Florida Pools of Central Florida, Inc., prevailed in this appeal via a per curiam affirmance filed on November 23, 1999. Pending at that time was a motion filed by Florida Pools on August 23 seeking attorney fees on the basis of a contractual provision. Unfortunately, the motion was misfiled; although it appears in the clerk's computer, the hard copy was not in the court file considered by the panel. As a result, the motion was not considered and disposed of at the time of the per curiam opinion. On December 10, 1999 the mandate issued. The term of court ended as of January 11, 2000, with no motion to withdraw the mandate having been filed in the interim.
On March 1, 2000, a duplicate of Florida Pool's motion for attorney's fees was filed and was denied by the panel on the basis that the term of court had expired in January. This was erroneous and accordingly we grant rehearing to correct the error. InJudges of the Eleventh Judicial Circuit v. Janovitz, 635 So.2d 19 (Fla. 1994), the supreme court stated that an appellate court has jurisdiction under such circumstances to enter an order assessing appellate attorney's fees assuming that a timely motion had been filed seeking such fees.
REHEARING GRANTED; MOTION FOR APPELLATE ATTORNEY'S FEES GRANTED.
ANTOON, C.J., and DAUKSCH, J., concur.