FIFTH DISTRICT COURT OF APPEAL
The Fifth District Court of Appeal was created by the 1979 session of the Florida
Legislature. At that time the Florida Supreme Court had recommended to the Legislature
"the creation of a fifth appellate district that would encompass the Fifth, Seventh, Ninth,
Tenth and Eighteenth Judicial Circuits." SeeIn Re Advisory Opinion to the Governor
Request of June 29, 1979, 374 So. 2d 959 (Fla. 1979). Had the Legislature adopted the
court's recommendation, the new headquarters for the Fifth District would have been
Lakeland in the Tenth Judicial Circuit, the existing headquarters of the Second District
Court of Appeal. The new headquarters of the Second District then would have been
located in either Tampa or St. Petersburg. The Legislature, however, created the new
district to include the Fifth, Seventh, Ninth and Eighteenth Judicial Circuits, as
recommended by the Florida Supreme Court, but omitted the Tenth Circuit, which
encompassed Polk, Highland and Hardee Counties, thereby leaving Lakeland in the
Second District. There was a political dispute in the Legislature as to whether to locate the
new court headquarters in Orlando or Daytona Beach, but Volusia County's Legislative
delegation won the fight. This was due to the strong influence of House Speaker Hyatt
Brown, Senator Edgar Dunn and Majority Leader Sam Bell.
Given the controversy surrounding the creation of the Fifth District Court of Appeal,
Governor Graham sought an advisory opinion from the Florida Supreme Court concerning
the constitutionality of the new district. Three of the seven supreme court justices declined
to join in the majority's opinion that the new court was constitutional or otherwise to render
an opinion on the issue. Four of the justices, however, rendered the advisory opinion, supra., advising Governor Graham that "the omission of one recommended judicial circuit
from the new appellate district is not a prohibited modification of the court's
recommendation; however, the addition of one or more judicial circuits not included in the
court's certification would be a prohibited modification." See Advisory Opinion at 966. The
bill creating the Fifth DCA became law without the Governor's signature. Section 35.043,
Florida Statutes, describes the geographical jurisdiction of the court and section 35.05(1),
Florida Statutes, provides: "The headquarters of the . . . Fifth Appellate District (shall be)
in the Seventh Judicial Circuit, Daytona Beach, Volusia County." The Fifth District includes
13 central Florida counties: Orange and Osceola (Ninth Circuit); Volusia, Flagler, Putnam
and St. Johns (Seventh Circuit); Lake, Marion, Sumter, Citrus and Hernando (Fifth Circuit);
and Brevard and Seminole (18th Circuit).
Two judges from the Fourth District in West Palm Beach, Spencer C. Cross and
James C. Dauksch, Jr., transferred to the newly created Fifth District. In the interim,
Orange County Circuit Judge Parker Lee McDonald, later to be a justice of the Florida
Supreme Court, was assigned by Governor Graham as a temporary appellate judge to
allow a complement of three judges for the court to commence operations in August 1979,
with an immediate caseload of 1021 filings transferred from the First, Second and Fourth
Subsequently, four other original judges were appointed in 1979: Judges Melvin
Orfinger and Warren Cobb from Volusia County; Frank Upchurch, Jr. from St. Johns
County; and Winifred Sharp from Orange County. The new court chose Judge Dauksch
as its chief judge and the first court clerk was Frank Habershaw who retired October 2005. The court's first locale was in the U.S. Army Reserve building in
downtown Daytona Beach. The first oral argument calendar was conducted on November
13, 1979, before Judges Dauksch, Orfinger and Cobb. Early oral arguments were heard
either in chambers at the City Hall or in borrowed courtrooms at the Volusia County
Courthouse Annex located on City Island in Daytona Beach.
Ground for a new courthouse was broken on July 24, 1981. The new courthouse
was constructed for $5.3 million and the court left the Army Reserve building and moved
into its new quarters on October 19, 1982. The building is located at 300 South Beach
Street, Daytona Beach, Florida. It was significantly enlarged in 2000-2001.
Judge Joe Cowart, Jr. of Brevard County replaced Judge Cross in 1980 and the
same six judges comprised the Fifth District Court of Appeal for the next eight years:
Judges Dauksch, Orfinger, Cobb, Upchurch, Sharp and Cowart. In 1988 Judge Upchurch
retired and was succeeded by Judge C. Welborn Daniel of Lake County. The following
year a new seat was created on the court, which was filled by Judge Gilbert Goshorn of
Brevard County. Upon Judge Orfinger's retirement in 1989, his position was filled by Judge
Charles Harris of Brevard County. Two more positions were created by the Legislature,
which were filled in January of 1990 by Judge Earle Peterson, Jr. of Lake County and
Jacqueline Griffin of Orange County. Judge Daniel retired in 1990 and was succeeded by
Judge George Diamantis of Orange County.
Judge Cowart retired in 1993 and was succeeded by Judge Emerson R. Thompson
of Orange County. In 1995 Judge Diamantis died while in office, and was succeeded by
Judge John Antoon, II of Brevard County. Thereafter, a tenth seat was created and was
filled in February 2000 by the appointment of Judge Thomas Sawaya from Marion County.
Judge Goshorn retired at that time and was replaced by Robert Pleus from Orange County.
Thereafter Judge Antoon was appointed to the federal bench, to be replaced by William
Palmer of Orange County. During the same year Judge Dauksch resigned, and his
position was filled by Judge Richard Orfinger, the son of retired Judge Melvin Orfinger,
from Volusia County. In January 2003, Judges Cobb and Harris retired.
They were replaced by Judge David A. Monaco of Volusia County and Judge
Vincent G. Torpy, Jr., of Brevard County. Judge Peterson retired and was replaced in Janaury 2006 by Judge C. Alan Lawson of Orange County. The last member of the original court, Judge Sharp, retired July 2006. In honor of her long service and special dedication to the preservation of the court's public library, the library was dedicated in her name shortly after her retirement. Judge Sharp was replaced by Judge Kerry I. Evander of Brevard County. Judge Thompson retired from the court in January 2008 and was replaced by Judge Jay P. Cohen of Orange County. Judge Pleus retired in August 2009 and was replaced by Judge Bruce W. Jacobus of Brevard County.
Judge Richard B. Orfinger is presently the Chief Judge of the Fifth DCA. The
other nine judges on the court, in order of seniority, are: Jacqueline R. Griffin, Thomas D. Sawaya, William D. Palmer, Vincent G. Torpy, Jr., C. Alan Lawson, Kerry I. Evander, Jay P. Cohen, Bruce W. Jacobus and Wendy W. Berger.
The process by which cases move through the Fifth District is pretty much the same
as that used in other appellate courts. An appeal is initially assigned to a motions panel
which stays with the case until the briefs have been filed and it is ripe for assignment to a
merits panel for oral argument or a decision without argument. Routine administrative
motions, such as unopposed motions for first extensions of time, can be granted by the
Clerk. Other motions will require the action of one, two, or three of the judges on the
motions panel, depending on the nature of the motions.
The court has excellent staff attorneys. The staff attorneys are organized into a
Central Staff and individual staff attorneys for each judge. The Central Staff has three
main functions. First, all extraordinary writs are channeled through the Central Staff for
review and recommended disposition. Secondly, the Central Staff acts as counsel for the
court when petitions for writs are filed seeking relief against the Fifth District in the
Supreme Court. Third, the Central Staff is available on a referral basis for help with
motions that involve unusual complexity.
The individual staff attorneys for the assigned judge in each appeal review the briefs
and the record, check the parties' research and conduct additional research where needed,
and prepare a detailed written memorandum for the panel. These memoranda restate the
facts (often providing more of a detailed account of the facts than in the briefs), state the
legal issues involved in the case, state what arguments have been made, and discuss
other possible arguments which, while not made, should be considered by the court, and
contain recommendations for disposition of the appeal.