Johnny Wade, Appellant, v. The State of Florida, Appellee. (2011)

District Court of Appeal of Florida, Third District.

Johnny Wade, Appellant, v. The State of Florida, Appellee.

No. 3D08–490

Decided: April 06, 2011

Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.

Andrew F. Rier, for appellant. Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

In Romero v. State, 870 So.2d 816 (Fla.2004), the Florida Supreme Court cited to our policy with approval and stated:

By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to the spirit of Florida Rule of Appellate Procedure 9.040(d), which is to “disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.”

Id. at 818. We therefore treat the motion for rehearing en banc as including a motion for rehearing.

For these reasons, we affirm.

, concurs.

Wade v. State

Case No. 3D08–490

GERSTEN, J. (dissenting).

I respectfully dissent. Neither party has filed a motion for rehearing within the time allowed under the appellate rules. See Fla. R.App. P. 9.330(a); Hoenstine v. State Farm Fire & Cas. Co., 742 So.2d 853 (Fla. 5th DCA 1999). Therefore, I would adhere to the original opinion of the Court.

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