DAVID MARCIONETTE v. JACQUELINE MARCIONETTE A/K/A JACQUELINE WEST

• Court: District Court of Appeal of Florida
• Decided: August 29, 2025
• Docket: 6D2024-0289
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2024-0289 Lower Tribunal No. 2019-DR-005751 _____________________________

DAVID MARCIONETTE,

Appellant,

v.

JACQUELINE MARCIONETTE a/k/a JACQUELINE WEST,

Appellee. _____________________________

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Orange County. Diana M. Tennis and Barbara J. Leach, Judges.

August 29, 2025

SMITH, J.

Appellant David Marcionette appeals the trial court’s denial of his 2024 motion

to dissolve a domestic violence injunction entered against him. Because it appears

the motion was filed in the wrong division and was erroneously denied rather than

transferred, we reverse. Marcionette also attempts to appeal the trial court’s 2019

order granting a temporary injunction and its 2019 order making the same permanent,

as well as the trial court’s 2021 order denying a previous motion to dissolve the

injunction. Because those orders were issued more than thirty days prior to

Marcionette’s notice of appeal, this appeal is dismissed for lack of jurisdiction as to those orders. See Fla. R. App. P. 9.130(b) (“Jurisdiction of the court . . . shall be

invoked by filing a notice with the clerk of the lower tribunal within 30 days of

rendition of the order to be reviewed.”).

In 2019, Marcionette’s wife successfully filed for a permanent domestic

violence injunction against Marcionette. Marcionette claims that in 2021, he moved

to have the injunction dissolved and was denied. Later that year, he was arrested for

aggravated stalking in violation of the injunction. He was convicted in 2023.

On January 24, 2024, Marcionette filed a second motion to have the injunction

dissolved, which the trial court denied the next day. The trial court cited lack of

jurisdiction as its reason for denial, asserting “this court has no jurisdiction over any

domestic violence injunction in another case.” The case number listed on the order

granting the injunction in 2019 was 48-2019-DR-005751-O, division 45; the case

number listed on the order denying Marcionette’s 2024 motion was 2019-DR-

005751-O, division 38. This appeal followed.

We review the trial court’s ruling on a motion to dissolve an injunction for

abuse of discretion if the order is based on factual matters, and de novo if based on

legal matters. Bak v. Bak, 332 So. 3d 1122, 1124 (Fla. 4th DCA 2022) (quoting

Burtoff v. Tauber, 85 So. 3d 1182, 1183 (Fla. 4th DCA 2012)).

Here, it appears Marcionette filed his motion in the wrong division. “All circuit

court judges have the same jurisdiction within their respective circuits.” Malave v.

Malave, 178 So. 3d 51, 54 (Fla. 5th DCA 2015) (quoting In Int. of Peterson, 364 So.

2 2d 98, 99 (Fla. 4th DCA 1978)). Therefore, a motion improperly filed in the wrong

division should be transferred rather than denied. Chickering v. Bawa, 360 So. 3d

424, 426 (Fla. 4th DCA 2023) (“When a case is filed in the wrong division, the proper

remedy is to transfer the case to the appropriate division.” (citing Golden v. Jones,

194 So. 3d 1060, 1063 (Fla. 4th DCA 2016))); Carlton v. Zanazzi, 266 So. 3d 243,

247 (Fla. 2d DCA 2019) (finding that a petition with the improper case number on it

should have been transferred, because “[t]he use of the original case number on a new

and separate petition is more in the nature of a scrivener’s error than a jurisdictional

defect”); Woods v. State, 294 So. 3d 423, 424 (Fla. 5th DCA 2020) (remanding a case

for resolution on the merits where a pro se motion for postconviction relief referenced

the wrong case number and “[t]he postconviction court could have easily noted

Woods’s scrivener’s error and transferred the motion into the correct file.”).

The trial court erred in denying Marcionette’s motion rather than transferring

it. We reverse and remand for transfer to the appropriate division.

DISMISSED in part; REVERSED in part; and REMANDED with instructions.

STARGEL and MIZE, JJ., concur.

David Marcionette, Seminole, pro se.

No Appearance for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED