final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County,
Lower Tribunal Nos. 15-15320 & 17-165 Appellate Division,
Sarah I. Zabel, Valerie R. Manno Schurr, and Monica Gordo,
Burnett, in proper person.
& Brooke, LLP, and Stephanie M. Simm and Shawn Y. Libman,
SUAREZ, LAGOA and SCALES, JJ.
Shane Burnett seeks second-tier certiorari review of an order
by the Appellate Division of the Miami-Dade Circuit Court
("Circuit Court") dismissing his appeal of an order
rendered against him by the Miami-Dade County Court's
Small Claims Division. We grant Burnett's petition
because the circuit court dismissed Burnett's appeal
without affording him the requisite procedural due process.
Relevant Facts and Procedural Background
April of 2017, Burnett appealed to this Court an order of the
Miami-Dade County Court Small Claims Division dismissing,
with prejudice, Burnett's Statement of Claim against
Target Corporation (case number 3D17-994). Contemporaneously
with his notice of appeal, Burnett filed with this Court a
Motion to Appear in Forma Pauperis, seeking, pursuant to
Florida Rule of Appellate Procedure 9.430, a waiver of the
statutorily required appellate filing fee. Without ruling on
Burnett's Forma Pauperis motion, we, sua sponte,
transferred Burnett's appeal, including Burnett's
Forma Pauperis motion, to the Circuit Court.
of 2017, Burnett filed his initial appellate brief in the
Circuit Court, and Target responded by filing a June 5, 2017
motion to dismiss Burnett's appeal. Target's
dismissal motion asserted, among other things, that
Burnett's appeal should be dismissed for Burnett's
failure to pay the $287.00 filing fee for the appeal. On June
15, 2017, the appellate panel of the Circuit Court entered
two separate orders: (i) an order granting Burnett's
Motion to Appear in Forma Pauperis; and (ii) a related order
denying Target's motion to dismiss Burnett's appeal.
20, 2017, Target then filed a detailed Motion for Rehearing,
arguing that the Circuit Court should not have granted
Burnett's Forma Pauperis motion. Target argued that
Burnett had failed to complete the required Application for
Determination of Civil Indigent Status
("Application") and that Burnett had filed some
eighteen civil cases during the preceding two years, paying
thousands of dollars in filing fees. Target further argued
that the Circuit Court failed to take into consideration
that, in the same two-year period, Burnett had been declared
indigent in only three of twenty-five criminal matters in
which Burnett had been named as a defendant.
appears that on August 28, 2017, the appellate panel of the
Circuit Court signed an order granting Target's June 20th
rehearing motion. The panel checked the "Granted"
box in the form order; then the order states: "Appellant
shall file the Application for Determination of Civil
Indigent Status within thirty (30) days of the date of this
order. Failure to do so may result in the granting of motion
to dismiss appeal." This order does not vacate either of
the June 15th orders; and, oddly, both this order, and the
Circuit Court's docket sheet, indicate that this order
was not docketed by the Circuit Court until September 27,
2017 ("September 27 Order").
prior to the expiration of the thirty days referenced in the
September 27 Order (regardless of whether this 30 days is
calculated from August 28 or September 27), the same
appellate panel signed an unelaborated order denying
Target's June 20th Motion for Rehearing. This order -
plainly contradicting the September 27 Order - is both signed
and docketed on September 28, 2017 ("September 28
October 5, 2017, Burnett filed a motion seeking clarification
of the Circuit Court's "competing orders."
Target filed no response to Burnett's clarification
motion. Rather, on November 8, 2017, Target filed a renewed
motion to dismiss Burnett's appeal alleging that, among
other things, Burnett failed to file an Application as
required by the September 27 Order. Target's motion makes
no mention of the "competing" September 28 Order.
On November 17, 2017, the Circuit Court's appellate panel
entered an order denying Burnett's October 5th motion for
clarification. The order states that Burnett has "failed
to comply with the court order dated August 28,
2017." Again, ...