AMERICAN HOME ASSURANCE COMPANY v. APAC FLORIDA INC (2003)

ORDER ON MOTION TO RECALL MANDATE AND STAY PROCEEDINGS PENDING DISCRETIONARY REVIEW IN THE SUPREME COURT OF FLORIDA

More than fifteen days after the issuance of our opinion in this case, the appellant filed a motion stating that it intended to file, or had filed, a notice to invoke the discretionary jurisdiction of the supreme court.   Pursuant to Florida Rule of Appellate Procedure 9.310(a), the appellant asks this court to stay the judgment on appeal pending further review.

The judgment on review is in the nature of a monetary judgment.   This court has concluded that it does not have the power to withhold issuance of mandate in such a case when the motion to stay is filed more than fifteen days after the issuance of the opinion and no timely motion for rehearing has been filed pursuant to Florida Rule of Appellate Procedure 9.330(a).   See Fla. R.App. P. 9.340;  State ex rel. Price v. McCord, 380 So.2d 1037 (Fla.1980);  see also State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001).   Because this court is required to issue its mandate upon the expiration of the fifteen-day period established in rule 9.340, the court has concluded that it does not have authority thereafter to withdraw its mandate in order to stay a judgment except perhaps upon some extraordinary showing not present in this case.

Accordingly, this court denies the motion to stay.   In so doing, however, we expressly recognize that the appellant seeks review in the supreme court in good faith and that, if the law allowed, this court would be willing to stay the trial court's judgment during review in the supreme court upon a showing that the existing bond would remain in effect and would be adequate to secure the obligation.

This order is subject to review in the supreme court pursuant to Florida Rule of Appellate Procedure 9.310(f).  To the extent that this court maintains that it lacks jurisdiction to grant this stay, our order may also be subject to challenge by petition for writ of prohibition.

ALTENBERND, Chief Judge.

CASANUEVA and DAVIS, JJ., Concur.