Kaelbel Wholesale, Inc. v. Soderstrom

810 So. 2d 1065, 2002 Fla. App. LEXIS 3606, 2002 WL 423455

Opinion

WARNER, J.

We review the denial of a motion taxing appellate costs. The trial court denied the motion based upon our decision in Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA 1999),¹ in which we stated that a motion to tax costs must be filed within 30 days after the issuance of the mandate. We cited Florida Rule of Appellate Procedure 9.400(a). However, the statement in Mulato was obviously an inadvertent error, as the rule states “[c]osts shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” (Emphasis added). Clearly, this court was relying on the rule and not attempting to rewrite it, a power which we do not have.²

While Thornburg v. Pursell, 476 So.2d 323, 324 (Fla. 2d DCA 1985), also refers to “file” instead of “serve” the motion to tax costs, we do not certify conflict because the reference was not a holding, and it is obvious that Thornburg made the same mistake that we did in Mulato.

The motion to review is granted, and the order denying the motion to tax appellate costs is reversed.

STONE and GROSS, JJ., concur.

1 . This author admits that she was also the author of Mulato.

2 . We have checked our file in Mulato and ñnd that the motion to tax costs was neither filed nor served within the thirty day period.