City of Miami Beach, Appellant, v. Adalberto Cosme, Appellee. (2024)

Upon consideration, the Appellee's Motion for Rehearing or Clarification, and Corrected Motion for Rehearing or Clarification are hereby denied. The Appellant's Response is noted.

I respectfully dissent from the denial of rehearing or clarification. In reversing the case on due process grounds, the majority relies upon an argument advanced by the State for the first time in the reply brief. As appellee correctly argues, this course of action constitutes a sharp departure from established tenets of appellate law. See Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (barring issue not raised in initial brief); Gen. Mortg. Assocs., Inc. v. Campolo Realty & Mortg. Corp., 678 So. 2d 431, 431 (Fla. 3d DCA 1996) (“The fact that this issue was raised for the first time in the reply brief alone precludes our consideration of the matter.”); Land v. Fla. Dep't of Corr., 181 So. 3d 1252, 1254 (Fla. 1st DCA 2015) (“[T]his court is unable to entertain appellants’ argument ․ which they failed to raise in their initial brief.”); Plichta v. Plichta, 899 So. 2d 1283, 1287 (Fla. 2d DCA 2005) (“Issues raised on appeal for the first time in a reply brief are not properly before this court and will not be considered.”). Accordingly, in my view, lack of preservation should have doomed this appeal to failure.

PER CURIAM.

SCALES and LINDSEY, JJ., concur.