Gerald Paul Quaif v. State of Florida

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D2024-0888
LT Case No. 2021-CF-000940-A
_____________________________
GERALD PAUL QUAIF,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Sumter County.
Mary P. Hatcher, Judge.
Matthew J. Metz, Public Defender, and Jane Almy, Assistant
Public Defender, Daytona Beach, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Rebecca
Rock McGuigan, Bureau Chief, Daytona Beach, for Appellee.
February 27, 2026
EN BANC
A judge of this court requested that this cause be considered
en banc in accordance with Florida Rule Appellate Procedure
9.331(c). All judges in regular active service that have not been
recused voted on the request. Less than a majority of judges voted

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in favor of hearing en banc. Accordingly, the request for hearing
en banc is DENIED.
JAY, C.J., and LAMBERT, EISNAUGLE, SOUD, BOATWRIGHT,
KILBANE, and MACIVER, JJ., concur.
MAKAR, J., dissents with an opinion in which WALLIS, EDWARDS,
and HARRIS, JJ., concur.

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Case No. 5D2024-0888
LT Case No. 2021-CF-000940-A
MAKAR, J., dissenting from denial of hearing en banc.
The majority opinion departs from precedent without
invoking the en banc process, much like what recently occurred in
Williams v. State, 422 So. 3d 1155 (Fla. 5th DCA 2025). This case,
as in Williams, incrementally weakens the prior precedent rule,
i.e., stare decisis, which is the cornerstone of an orderly and
uniform judicial process.
The need for en banc review is evident. In Williams, the panel
sought to work around precedent by judicially creating a new
concept no court had ever used. See id. at 1167−71 (Makar, J.,
dissenting) (“Nothing in Anders [v. California, 388 U.S. 924
(1967)], nor in the 108,332 cases citing Anders since 1967, has ever
held that courts must ignore clerical errors that favor criminal
defendants and leave them uncorrected.”). In contrast, the
majority opinion in this case explicitly disregards clear and
unequivocal precedent. As Judge Wallis’s dissent points out, our
Court has multiple precedents that corrected statutory citation
errors in Anders cases. See, e.g., Dubuc v. State, 345 So. 3d 961
(Fla. 5th DCA 2022); Walker v. State, 357 So. 3d 724 (Fla. 5th DCA
2022); Torres v. State, 293 So. 3d 634 (Fla. 5th DCA 2020). Indeed,
both this Court in other cases and other Florida district courts of
appeal correct these types of scrivener’s errors (see Appendix); no
district court or our supreme court has held to the contrary.
The majority opinion—though acknowledging our Court’s
precedent and uniform practices—fails to follow them. Instead, it
charts its own path, purportedly based on Williams and two
unpublished, nonprecedential federal cases. One is hard-pressed
to find any panel decision of a district court of appeal that has
overturned its own court’s precedent in this manner. That’s
because our supreme court has repeatedly said a panel’s exercise
of judicial power in this way is inappropriate. See, e.g., In re Rule
9.331, Determination of Causes by a Dist. Ct. of Appeal En Banc,
416 So. 2d 1127, 1128 (Fla. 1982) (“Under our appellate structural
scheme, each three-judge panel of a district court of appeal should

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not consider itself an independent court unto itself, with no
responsibility to the district court as a whole.” (emphasis added)).
As to substance, the majority opinion continues to ignore that
the correction of scrivener’s errors is a long-standing practice in
Anders and non-Anders cases. Even if our appellate court decided
in an en banc proceeding that the Anders process itself did not
mandate the correction of scrivener’s errors, Florida appellate
courts—including ours—have recognized the practice in other
contexts. Indeed, this Court in T.V. v. Department of Children &
Families, 318 So. 3d 649, 650 (Fla. 5th DCA 2021), ruled that the
trial court had cited the “incorrect statutory grounds” in a
termination of parental rights case, but that the error “had no
substantive effect on the trial court’s analysis and decision.” The
erroneous statutory citation had no substantive effect, but the
panel (Evander, Eisnaugle, and Nardella, JJ.) affirmed and
“remand[ed] only for the correction of the scrivener’s errors.” Id.
Why we would allow correction of scrivener’s errors in other
contexts, such as in T.V., but exclude only Anders cases, is neither
logical nor sensible.
The primary importance of this case is not its substance,
however, but its disregard of precedent without first invoking the
en banc process. The primary interest at stake is not ministerially
correcting scrivener’s errors, a practice based on long-standing
practice; it is fidelity to our precedent and seeking change only
through proper procedures. If a panel wishes to depart from
precedent for legitimate reasons, it must invoke the en banc
process and not continually require colleagues to play defense.
Plus, the practical effect of abandoning the prior precedent rule
would be that three-judge panels of this Court can play an
intramural game of jurisprudential ping-pong, issuing opinions
one week that cancel opinions from the previous week. What’s to
stop a three-judge panel from overruling the majority opinion in
this case, even by a 2-1 vote, in the coming weeks? The loser in this
type of game would be the rule of law.
Finally, the majority opinion, as in Williams, directs the clerk
to refer the case to the supreme court and the appellate rules
committee “for consideration of a rule amendment clarifying the
scope of an appellate court’s Anders review.” Williams, 422 So. 3d

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at 1164. The same request was made in the Williams case and was
recently denied, making it unavailing and potentially
unproductive to make another such request. Instead, it is
suggested, again, that our Court—in the first instance—do the
necessary legwork by committee or via the en banc process to lay
the groundwork for such a referral (assuming one is even needed).
This internal process would be of particular benefit because, as in
Williams, no party presented (or was put on notice of) the issue the
majority opinion has raised and decided on its own in this case. See
id. at 1162 (noting the need for the “steadfast application” of the
party presentation principle).
WALLIS, EDWARDS, and HARRIS, JJ., concur.
Appendix
Glaubius v. State, 401 So. 3d 580, 584 (Fla. 2d DCA 2025);
Jefferson v. State, 383 So. 3d 825, 826–27 (Fla. 4th DCA 2024);
Johnson v. State, 354 So. 3d 598, 600–01 (Fla. 2d DCA 2022);
Arrington v. State, 335 So. 3d 1282, 1282 (Fla. 5th DCA 2022);
Prentice v. State, 319 So. 3d 57, 62 (Fla. 4th DCA 2021); Cosme-
Sella v. State, 301 So. 3d 254, 256 (Fla. 4th DCA 2020); Haar v.
State, 295 So. 3d 327, 328 (Fla. 5th DCA 2020); Fairley v. State,
253 So. 3d 1251, 1251 (Fla. 1st DCA 2018); Rodriguez v. State, 223
So. 3d 1053, 1055 (Fla. 2d DCA 2017); Sweeney v. State, 138 So. 3d
1095, 1095 (Fla. 4th DCA 2014); Stevens v. State, 114 So. 3d 485,
486 (Fla. 2d DCA 2013); Philyaw v. State, 161 So. 3d 415, 415 (Fla.
5th DCA 2014); Hill v. State, 796 So. 2d 564, 565 (Fla. 3d DCA
2001); Dees v. State, 691 So. 2d 42, 42 (Fla. 1st DCA 1997); Mosely
v. State, 688 So. 2d 999, 1000 (Fla. 2d DCA 1997).