Opinion
No. 80-855.
July 15, 1981.
Appeal from the Circuit Court for Polk County, Richard A. Bronson, J.
Douglas H. Smith, P.A., Lake Alfred, for appellant.
L. Guerry Dobbins, Jr. and Walter W. Manley, II, Lakeland, for appellee.
The appellant appeals from an order entered by the trial court setting aside a certain portion of a final judgment. The trial court's order was entered pursuant to appellee's motion for relief from judgment under rule 1.540(b), Florida Rules of Civil Procedure. Both the appellee's rule 1.540(b) motion and the trial court's order were filed after appellee had filed a notice of appeal from the original final judgment. This court has not been asked to relinquish jurisdiction for this purpose.
We hold that the lower court lost jurisdiction to enter an order pursuant to a rule 1.540(b) motion once the notice of appeal from the final judgment was filed. Hutchison v. Wintrode, 286 So.2d 231 (Fla.2d DCA 1973); Liberman v. Rhyne, 248 So.2d 242 (Fla.3d DCA 1971). In addition, we observe that the appellant asserts in her statement of the case and facts that the lower court entered the order setting aside a certain portion of the final judgment without a hearing being held or a notice being given to appellant. It appears from the brief filed by appellee that he accepted appellant's assertion.
Accordingly, we REVERSE and VACATE the order entered below.
HOBSON, Acting C.J., and GRIMES, J., concur.