FOR ZDN LAW ONLY :
MEMORANDUM OF LAW
1. Clerical Error and judicial error or mistake of law.
"A trial court may correct a clerical error 'at any time on its own initiative
pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include
errors that affect the substance of a judgment, must be corrected within ten days
pursuant to Florida Rule of Civil Procedure 1.530[(g)], or by appellate review." Bolton v.
Bolton, 787 So. 2d 237, 238-39 (Fla. 2d DCA 2001).
As stated in Byers v. Callahan,
848 So. 2d 1180, 1184 (Fla. 2d DCA 2003), "[t]he 'clerical mistakes' referred to by Rule
1.540(a) are only 'errors or mistakes arising from accidental slip or omission, and not
errors or mistakes in the substance of what is decided by the judgment or order.' Town
of Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla. 1979) (quoting Keller v.
Belcher, 256 So. 2d 561, 563 (Fla. 3d DCA 1971)."
In N.Arnold Malone v. Kelly Y. PERCIVAL, 875 So.2d 1286 (Fla.App. 2 Dist.
2004):”with respect to the addendum to the final judgment of dissolution, however, we
conclude that reversal is required because the addendum–which purports to correct
scrivener's errors–in fact constitutes an unauthorized amendment of the final judgment.”
And: “The changes in the final judgment made by the trial court were, however, beyond
the scope of the clerical corrections to final judgments authorized by rule 1.540(a)
“Also:” A change in the amount of child support required to be paid is substantive, not
clerical. See State v. Thomas, 675 So. 2d 1024, 1025 (Fla. 1st DCA1996); Peters v.
Peters, 479 So. 2d 840, 841 (Fla. 1st DCA 1985)”
See Bird Lakes Dev. Corp. v. Meruelo, 582 So.2d 119 (Fla. 3rd DCA 1991) (as a result of
a mathematical error, the judgment did not reflect the decision actually made by the
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In Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2nd DCA 1993), the court distinguished
clerical errors from judicial errors. The court explained that a judicial error is one that
affects the substance of the order or judgment.
See also Department of Revenue ex rel. Thomas v. Thomas, 675 So.2d 1024 (Fla. 1st
DCA 1996) and Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023 (Fla. 2nd DCA
In contrast, a judicial error is one that is brought about by an intentional but incorrect
judicial act. The trial judge has no authority to make a substantive change in a final
judgment in the guise of correcting a clerical error. If the mistake is one that has a
material effect on the matter in controversy, then it cannot be regarded as a clerical
mistake. For example, the courts have held that a mistake in the application of the law is
not a clerical error.
2. Mistake of Law.
A mistake in the application of the law is not a clerical error and, therefore, is not subject
to correction under rule 1.540(a) See Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990);
Allstate Ins. Co. v. Ramjit, 788 So.2d 402 (Fla. 3rd DCA 2001); Tucker v. Ohren, 739
So.2d 684 (Fla. 4th DCA 1999); Harrison v. La Placida Community Ass’n, Inc., 665
So.2d 1138 (Fla. 4th DCA 1996)
3. Nature of Judgment.
An error that results in a material change in the judgment is not a clerical error.
See Department of Envtl. Regulation v. Apelgren, 611 So.2d 72 (Fla. 4th DCA 1992);
See also Dolin v. Dolin, 654 So.2d 223 (Fla. 5th DCA 1995) (the trial judge attempted to
change the nature of the final order from indirect criminal contempt to civil contempt);
Gulfstream Micro Sys., Inc. v. Kingbridge Boca Assocs., 564 So.2d 554(Fla. 4th DCA
1990) (the proposed amendment to the judgment substantially changed its impact and effect); Freeman v. Sanders, 562 So.2d 834 (Fla. 1st DCA 1990) (the error affected the
substantial terms of the dismissal).
4. Seeking relief from judgment based on a mistake of law
"A party seeking relief from judgment based on a mistake of law has two alternatives. He
may file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten days
after entry of the final judgment or file an appeal within thirty days." See Barrios v.
Draper, 423 So. 2d 1002, 1003 (Fla. 3d DCA 1982).
A final order can be vacated on a timely motion alleging mistake, inadvertence, surprise
or excusable neglect. See Everett v. Florida Transp. Servs., Inc., 744 So.2d 1038 (Fla. 4th
DCA 1999)) (reversing the denial of a rule 1.540(b) motion and vacating an earlier
judgment holding that the action was barred by the statute of limitations, because the
complaint contained an error as to the date of injury);