you have a filed motion that is not set for hearing, you would need to contact the court and ask that it be set.
I did, but the judge's assistant was not clear on that after she had asked the judge and told me that they would answer later.
I then sent a letter to the judge to confirm the phone conversation:
Upon receipt of your Order deeming my correspondence motion to rehear, I have
contacted your secretary immediately and took good note of the possible hearing etc...
I am also respectfully XXXXX XXXXX my filed motion and following amended
motion to vacate or alternatively to amend amended final judgment, served on
March 20th and March 28th, 2013, prior to above Order.
Yours very respectfully,
Question : if the motion is invalid
The deemed motion is invalid, totally.
The order is invalid too because it does not address my motions prior to above Order following my correspondence.
My correspondence cannot be a deemed motion substituting my prior motion.
It can;t be a motion to re-hear the amended final judgment issues because any lawful act requesting any action needs an intent of the author otherwise it is an error, nobody can be deemed requesting anything he was not aware of.
I was not aware of the ISSUED final judgment when I answered to the judge, because it was en route in the mail, not notified yet to me.
So if it is deemed motion,it can only be motion to re-hear the Final Judgement - not the amended judgment that I jad no knowledge of - and argue about the amendments and then validate or invalidate them.
So this letter, when deemed motion cannot result in validating or invalidating the amended final judgment, it's not intended to that purpose, and the order is void if it's for a rehearing on the final judgment.
My prior motion is intended to that purpose:
My prior motion served on March 20th (one week earlier) and filed on March 22nd ( was an extensive contention of the
DEFENDANT'S AMENDED MOTION TO
V ACATE OR ALTERNATIVELY TO AMEND AMENDED FINAL JUDGMENT
COMES NOW Defendant (hereinafter "Defendant"), within the
period prescribed by the Rules of Court, and hereby files this motion to amend his previous
motion to amend Amended Final Judgment entered by this Cowt on March 13,2013, under
authority of Florida Rules of Civil Procedure 1.530(g), 1.540(b)(1), l.090(e) and 1.] 90.
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
CASE NO. 2011-CA-008243 MB AH Page 3 of 14
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
CASE NO. 2011-CA-008243 MB AH Page 4 of 14
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);
1. On January 8th, 2013, at trial hearing, this Court ordered Plaintiff and Defendant to
submit their proposed final judgment before January 18th, 2013, together with an “order
cover sheet circuit civil division” and notified Defendants by mail.
2. On Friday January 18th, 2013, at 12.06 PM Eastern Time, Plaintiff’s Counsel belatedly
emailed his copy of proposed Final Judgment to Defendant.
3. On February 25, 2013, this Court entered a final judgment against Defendants.
4. The text of the Amended Final Judgment is verbatim the text submitted by Plaintiff’s
5. Notwithstanding the above, on March 6, 2013, Plaintiff’s counsel wrote a letter to Hon.
Judge enclosing a new proposed amended final judgment.
(See Exhibit 1, correspondence, dated March 6th, 2013, of Plaintiff’s Counsel to Hon.
Judge attaching copy of Final Judgment issued February 25th 2013,
and Plaintiff’s proposed amended final judgment.)
6. By this correspondence, Plaintiff was now seeking pre-judgment interests to be added
and to compound with the already granted post-judgment interests.
7. Using small prints and by means of a footnote, Plaintiff’s counsel expedited the
calculations of interests in a confusing manner.
8. Plaintiff’s counsel was using an unknown and/or discretionary date to start his
calculations from, together with a complicated set of discretionary interest rates.
9. On March 14, 2013, Defendant yyy wrote a letter to Hon.
Judge , objecting to the entry of the proposed amended judgment on
the grounds that it does not conform to the judgment entered by this Court and that it is
not being submitted to correct a “scrivener's error,” but rather, to add substantial amounts
not included in her final judgment, and, as such, that it was a drastic deviation from the
original judgment entered by this Court.
(See Defendants’ letter to the Hon. Judge attached as Exhibit 2, in
reply to Plaintiff’s letter dated March 6th, 2013, here attached as Exhibit 1)
10. Plaintiff, instead, was obligated to petition this Court to Amend said Final
Judgment as per Florida Rules of Civil Procedure.
11. Plaintiff is thereby severely attempting to deprive Defendant of his property.
12. Furthermore, in his said letter, Plaintiff’s Counsel confusingly alleges “scrivener’s errors”
as the reason to amended final judgment, when - de facto - he is the scrivener of the
proposed final judgment.
13. In addition, the Amended Final Judgment was issued without Defendants having any
legal means to be part of any process of law, to plead their objections.
14. Under the Fifth Amendment to the U.S. Constitution, “No person shall … be deprived of
life, liberty, or property, without due process of law.”
AS I CAN SEE IT IT IS AN ABUSE OF DISCRETION
I have NOTHING to gain with the deemed motion, because right now I have an amended final judgment that is invalid as per the numerous cases indicated here above, and EASY TO APPEAL, because NO PRIOR HEARING .
So if the court wants to move itself to re-hear, this is my best bet BECAUSE I think that it can oky rehear the FINAL JUDGMENT and then will have to grant my REAL MOTION first, otherwise the contradictions, errors and incoherences will continue on and on.
This is my point of view so far, what do you think ?