Florida Rules of Appellate Procedure

Question 1

Motions that Toll Rendition

Rule 9.020(i)

Answer 1

Authorized and timely motions seeking:

• New trial
• Rehearing
• Certification
• Alter or amend
• Judgment in accordance with prior DV motion
• Arrest of judgment
• Challenge the verdict
• Correct sentence or probation order , Fla. R. Crim. P. 3.800(b)(1)
• Withdraw plea after sentencing, Fla. R. Crim. P. 3.170(l)
• Vacate order based on hearing officer recommendations, Fla. Fam. L. R. P. 12.491

Question 2

Rendition tolled pursuant to qualifying motion until…

Rule 9.020(i)

Answer 2

An order disposing of the last pending tolling motion has been signed and filed.

Until this time, not final as to any party.

Appeals filed before such disposal are held in abeyance.

Question 3

Rendition of Appellate Order

Rule 9.020(j)

Answer 3

When all timely and authorized motions under Rule 9.330 or 9.331 are withdrawn or order thereon is filed.

Question 4

Florida Supreme Court Jurisdiction

Appeal Jurisdiction

Rule 9.030(a)(1)

Answer 4

• Final orders of courts imposing death sentences
• DCA decisions declaring provision in state statute or state constitution invalid
• Final orders in proceedings for validation of bonds or certificates of indebtedness (if provided by law)
• Action of statewide agencies regarding rates or services of utilities providing electric, gas, or phone service (if provided by law)

Question 5

Florida Supreme Court Jurisdiction

Discretionary Jurisdiction

Appeals from DCA Decisions

Rule 9.030(a)(2)(A)

Answer 5

• Expressly declare state statute valid
• Expressly construe provision of state or federal constitution
• Expressly affect class of constitutional or state officers
• Expressly and directly conflict with decision from another DCA or the FSC on the same question of law
• Pass upon a question certified to be of great public importance
• Certified in direct conflict with decisions of other DCAs

Question 6

Florida Supreme Court Jurisdiction

Discretionary Jurisdiction

Appeals from Trial Courts

Rule 9.030(a)(2)(B)

Answer 6

Certified by DCA in which appeal is pending to require immediate resolution by FSC and to be:

(a) of great public importance, or
(b) to have a great effect on proper administration of justice

Question 7

Florida Supreme Court Jurisdiction

Discretionary Jurisdiction

Certified Questions from Federal Courts

Rule 9.030(a)(2)(C)

Answer 7

Questions of law certified by SCOTUS or U.S. Courts of Appeals that are:

(a) determinative of the cause of action, and
(b) on which there is no controlling precedent in FSC

Question 8

Florida Supreme Court Jurisdiction

Original Jurisdiction

Rule 9.030(a)(3)

Answer 8

• Writs of prohibition
• All writs necessary to complete exercise of jurisdiction
• Writs of mandamus to state officers and agencies
• Writs of quo warranto to state officers and agencies

The FSC or any justice may issue writs of habeas corpus returnable before FSC or any justice, a DCA or judge thereof, or a circuit judge.

Question 9

DCA Jurisdiction

Appeal Jurisdiction

Rule 9.030(b)(1)

Answer 9

• Final orders of trial courts not directly reviewable by the FSC or a circuit court (this includes final orders from county courts declaring invalid a state statute or provision of state constitution.
• Circuit court non-final orders per Rule 9.130.
• Administrative action where provided by law.

Question 10

DCA Jurisdiction

Certiorari Jurisdiction

Rule 9.030(b)(2)

Answer 10

• Non-final orders of lower tribunals other than per Rule 9.130
• Final orders of circuit courts acting in appellate capacity

Question 11

DCA Jurisdiction

Original Jurisdiction

Rule 9.030(b)(3)

Answer 11

• Writs of mandamus
• Writs of prohibition
• Writs of quo warranto
• Writs of common law certiorari
• All writs necessary to complete exercise of jurisdiction

A DCA or any judge thereof may issue a writ of habeas corpus returnable before the court or any judge thereof, or before any circuit judge within territorial jurisdiction.

Question 12

DCA Jurisdiction

Discretionary Review

Rule 9.030(b)(4)

Answer 12

• Final orders of county court otherwise appealable to circuit court that county court certifies to be of great public importance
• Non-final orders otherwise appealable to circuit court under Rule 9.140(c) taht the county court certifies to be of great public importance

Question 13

Circuit Court Jurisdiction

Appeal Jurisdiction

Rule 9.030(c)(1)

Answer 13

Final orders of lower tribunals as provided by law

Non-final orders of lower tribunals as provided by law

Administrative action as provided by law

Question 14

Circuit Court Jurisdiction

Certiorari Jurisdiction

Rule 9.030(c)(2)

Answer 14

Non-final orders of lower tribunals except as provided under Rule 9.130.

Question 15

Circuit Court Jurisdiction

Original Jurisdiction

Rule 9.030(c)(3)

Answer 15

Writs of mandamus

Writs of prohibition

Writs of quo warranto

Writs of common law certiorari

Writs of habeas corpus

All writs necessary to complete exercise of jurisdiction

Question 16

Complete Determination

Rule 9.040(a)

Answer 16

Courts have necessary jurisdiction for complete determination of the cause.

Question 17

Forum

Rule 9.040(b)

Answer 17

Proceeding commenced in inappropriate court must be transferred.

After lower tribunal enters an order transferring venue, the court to review the non-final venue order, all other reviewable non-final orders rendered prior to or with the venue order, any order staying, vacating, or modifying the transfer of venue order, or an order dismissing a cause for failure to pay venue transfer fees, is the court that would review non-final orders in the cause had venue not been transferred. All subsequent orders to be reviewed by court with review jurisdiction of court venue was transferred to.

The clerk of the lower tribuunal whose order is being reviewed shall perform procedures to transfer venue, including accepting and filing the notice of appeal.

If necessary to facilitate non-final review, after an order transferring venue is entered, clerk of lower tribunal shall copy and retain portions of record necessary for review of non-final order.

If file is transferred to transferee tribunal before notice of appeal filed in transferring tribunal, clerk of transferee tribunal shall copy and transmit to transferring tribunal such portions of record as necessary for review of non-final order.

Question 18

Remedy

Rule 9.040(c)

Answer 18

If improper remedy is sought, cause shall be treated as if proper remedy had been sought, but it is not court’s responsibility to seek proper remedy.

Question 19

Amendment

Rule 9.040(d)

Answer 19

Anytime in the interest of justice, court may permit any part of proceeding to be amended so that it may be disposed of on the merits.

In the absence of amendment, court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.

Question 20

Assignments of Error

Rule 9.040(e)

Answer 20

Neither required or permitted.

Question 21

Filing Fee Payment Options

Rule 9.040(f)

Answer 21

By check or money order.

Question 22

Clerk’s Duties Upon Filing of Notice

Rule 9.040(g)

Answer 22

• Clerk shall transmit fee and certified copy of notice showing date of filing.
• If jurisdiction of FSC invoked by decision passing on question certified to be of great public importance or certified to be in direct conflict with other DCA decisions, or if pursuant to DCA certification requiring immediate resolution by FSC and of great public importance or having great effect on proper administration of justice, DCA clerk shall transmit copies of certificate and decision or order and any suggestion, replies, or appendices with certified copy of notice.
• Notices to review final orders of county and circuit courts in civil cases shall be recorded.

Question 23

Non-Jurisdictional Matters

Rule 9.040(h)

Answer 23

Failure of clerk or party timely to file fees or additional copies of notices or petitions or the conformed copy of the order(s) designated in notice of appeal - not jurisdictional.

However, such failure may be the subject of an appropriate sanction.

Question 24

Requests to Determine Confidentiality of Appellate Court Records

Rule 9.040(i)

Answer 24

Governed by Fla. R. Jud. Admin. 2.420

See Confidentiality of Court Records series

Question 25

Maintaining Privacy of Personal Data

Rule 9.050

Answer 25

All submissions must comply with Fla. R. Jud. Admin. 2.425 (minimization of filing of sensitive information)

This rule does not require redaction of personal data from the record.

This rule does not restrict a party’s right to move to file documents under seal.

Question 26

Proceedings Considered Original Proceedings

Rule 9.100(a)

Answer 26

• Writs of mandamus
• Writs of prohibition
• Writs of quo warranto
• Writs of certiorari
• Writs of habeas corpus
• All writs necessary to complete exercise of jurisdiction
• Review of non-final administrative action

Question 27

Commencing Original Proceedings

Rule 9.100(b)

Answer 27

• File petition and filing fees with clerk of court with jurisdiction
• If seeking review of lower tribunal order, all parties not petitioners are respondents
• If enforcing private right, proceeding shall not be brought on relation of the state
• Serve copy of petition on official who issued order that is subject of petition
• In certiorari proceedings, do not name as respondent(s) judge(s) of lower tribunal
• In review of quasi-judicial actions, do not name as respondent(s) individual members of agencies, boards, and commissions of local governments in quasi-judicial actions
• In review of non-final agency actions, do not name as respondent(s) officers presiding over administrative proceedings, including hearing officers and ALJs

Question 28

Original Proceedings with 30-Day Deadline to File

Rule 9.100(c)

Answer 28

• Petitions for writ of certiorari
• Petitions to review quasi-judicial actions of agencies, board, and commissions of local governments where not directly appealable under law but may be reviewable by certiorari
• Petitions to review non-final agency action under APA
• Petition challenging order of DOC entered in prisoner disciplinary proceedings

Question 29

Original Proceedings

Orders Excluding or Granting Access to Press or Public to a Proceeding or Record of Judicial Branch

Rule 9.100(d)

Answer 29

• Must be filed in court as soon as practicable following rendition if written, or oral if announced, but no later than 30 days after rendition
• Copy of petition must be served on person or chairperson issuing order, parties, and any affected non-parties (see Fla. R. Jud. Admin. 2.420)
• Court shall immediately consider petition to determine whether stay appropriate, and may issue stay on appropriate conditions on motion of party or on own motion.
• A motion to stay an order granting access must contain signed certificate filed in good faith and supported by sound factual and legal basis.
• Pending ruling on stay motion, appellate and lower court clerk must treat proceedings/records as confidential.
• Review of these orders will be expedited.

Question 30

Original Proceedings

Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal

Rule 9.100(e)

Answer 30

• Do not include judge’s or tribunal’s name in caption.
• Judge or lower tribunal is a formal party to petition for writ of mandamus or prohibition and must be named in body of petition.
• Petition must be served on judge or tribunal.
• If an order to show cause is issued, responsibility to respond is that of litigant opposing relief sought. Unless specifically ordered, judge/lower tribunal not required to respond, but has discretion to do so.
• Absence of response from judge or tribunal not deemed an admission.

Question 31

Original Proceedings

Review Proceedings in Circuit Court

Rule 9.100(f)

Answer 31

Where petition involves review of a judicial or quasi-judicial action:

• The caption must contain a statement that the petition is filed pursuant to this subdivision, Rule 9.100(f).
• When petition filed, circuit court clerk must transmit petition to administrative judge of appellate division or other appellate judge(s) as prescribed by administrative order for a determination of whether an order to show cause should be issued.
• Circuit court clerk shall not enter a default in a proceeding where a petition has been filed under this subdivision.

Question 32

Original Proceedings

Contents of Petition

Rule 9.100(g)

Answer 32

• Caption contains name of court and name and designation of all parties.
• Maximum length: 50 pages.
• Contents include (1) basis for invoking jurisdiction; (2) facts relied upon; (3) nature of relief sought; and (4) argument in support with citations of authority.
• If petition seeks order directed to lower tribunal, it must be accompanied by an appendix and contain references to pages thereof.

Question 33

Original Proceedings

Orders to Show Cause

Rule 9.100(h)

Answer 33

• If petition shows a preliminary basis for relief, departure from essential requirements of the law that will cause material injury for which no adequate remedy on appeal, or that review of final administrative action would not provide an adequate remedy, court may issue order directing respondent to show cause why relief shouldn’t be granted or directing respondent to file response, within a certain period of time.
• In prohibition proceedings, an order to show cause stays further proceedings in the lower tribunal.

Question 34

Original Proceedings

Record

Rule 9.100(i)

Answer 34

No record is transmitted unless ordered.

Question 35

Original Proceedings

Response

Rule 9.100(j)

Answer 35

• Within the time set by the court, respondent may serve a response.
• Maximum length: 50 pages.
• Contents: (1) argument in support of response with citations of authority; and (2) references to pages of supporting appendices.

Question 36

Original Proceedings

Reply

Rule 9.100(k)

Answer 36

• Within 20 days of service of the response, or other time set by court, petitioner may serve a reply and supplemental appendix.
• Maximum length: 15 pages.

Question 37

Original Proceedings

General Requirements; Fonts

Rule 9.100(l)

Answer 37

• Black font, distinct type, double spaced, margins no less than 1 inch.
• Real or imitation script not permitted.
• Footnotes and quotations may be single spaced and shall be in same size type, with same spacing between characters as the text.
• Computer generated must be in Times New Roman 14 or Courier New 12, and must contain a certificate of compliance signed by counsel or pro se party re compliance with font requirements, following the certificate of service.

Question 38

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Commencement

Rule 9.110(b), (c)

Answer 38

• Jurisdiction invoked by filing a notice accompanied by any applicable filing fees with clerk of court in lower tribunal.
• Must be filed within 30 days of rendition of order to be reviewed (except crminal appeals by the state, which must be commenced wihthin 15 days of rendition of order appealed).
• In an appeal to review a final order of a lower administrative tribunal, file notice with clerk of such tribunal within 30 days of rendition of order to be reviewed and shall also file a copy of the notice accompanied by filing fees with clerk of appellate court.

Question 39

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Notice of Appeal

Rule 9.110(d)

Answer 39

• Substantially in same form as Rule 9.900(a).
• Caption must contain name and case number of lower tribunal, name and designation of at least one party on each side.
• Must contain name of court to which appeal is taken, date of rendition, and nature of order to be reviewed.
• Except in criminal cases, conformed copy of order(s) designated in notice must be attached to notice with any order entered on a timely motion postponing rendition of the order(s) appealed.

Question 40

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Record

Rule 9.110(e)

Answer 40

• Within 50 days of filing the notice, clerk shall prepare the record and serve copies of the index on all parties.
• Within 110 days of filing the notice, the clerk shall electronically transmit the record to the court.

Question 41

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Briefs

Rule 9.110(f)

Answer 41

• Must be served within 70 days of filing notice of appeal.
• Other briefs to be served per Rule 9.210.

Question 42

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Cross Appeals

Rule 9.110(g)

Answer 42

• Must serve notice within 10 days of a timely filed notice of appeal or within time for filing a notice of appeal, whichever is later.
• Notice of cross appeal with filing fees must be filed before service or immediately after in same manner as notice of appeal.

Question 43

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Scope of Review

Rule 9.110(h)

Answer 43

• Court may review any ruling or matter that occurred before the notice was filed.
• Multiple final orders may be reviewed by a single notice, if notice is timely as to each order.

Question 44

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Bond Validation Proceedings

Rule 9.110(i)

Answer 44

• If appeal is from an order in a proceeding to validate bonds or certificates of indebtedness, record shall not be transmitted unless ordered by FSC.
• Initial brief and appendix shall be served within 20 days of filing the notice.

Question 45

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Appeals from DCAs

Rule 9.110(j)

Answer 45

• Clerk shall electronically trasmit the record within 60 days of filing the notice.
• Initial brief must be served within 20 days of filing the notice.

Question 46

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Review of Partial Final Judgments

Rule 9.110(k)

Answer 46

• Reviewable on appeal from partial final judgment or from final judgment where disposes of separate and distinct cause of action not interdependent with other pleaded claims.
• If a partial final judgment totally disposes of the case as to a party, it must be appealed within 30 days.

Question 47

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Premature Appeals

Rule 9.110(l)

Answer 47

• Except where a post-trial motion is pending such that the appeal will be held in abeyance, an appeal filed before a final order is issued will be subject to dismissal.
• Lower tribunal retains jurisdiction to render a final order, and if it does so before the appeal is dismissed, the premature notice will be deemed effective.
• Before dismissal, court may, in its discretion, give the parties time to secure a final order.

Question 48

Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

Insurance Coverage Appeals

Rule 9.110(m)

Answer 48

Where existence of coverage in causes of action in which a claim has been made against an insured and coverage is disputed by the insurer may be reviewed under this rule for final order appeals or under Rule 9.130 for nonfinal order appeals.

Question 49

Discretionary Proceedings in FSC to Review Decisions of DCAs

Commencement and Notice

Rule 9.120(b), (c)

Answer 49

• Jurisdiction invoked by filing notice with filing fees within 30 days of order to be reviewed.
• Caption must include name and case number of lower tribunal, name and designation of at least one party on each side.
• Contain date of rendition of order to be reviewed and basis for invoking jurisdiction.

Question 50

Discretionary Proceedings to Review DCA Decisions

Briefs on Jurisdiction

9.120(d)

Answer 50

• Petitioner’s intiial brief must be on jurisdiction only.
• Must be accompanied by appendix that contains only a conformed copy of the DCA’s opinion.
• Brief on jurisdiction and appendix due within 10 days of filing the notice.
• Respondent’s brief on jurisdiction must be served within 20 days of service of the initial brief on jurisdiction.
• See Rule 9.210 for brief requirements.
• No reply brief on jurisdiction permitted.
• If jurisdiction invoked pursuant to certifications of questions of great public importance, no briefs on jurisdiction necessary.

Question 51

Discretionary Proceedings to Review DCA Decisions

Accepting or Postponing Decision on Jurisdiction; Record

Rule 9.120(e)

Answer 51

• If the FSC accepts or postpones a decision on jurisdiction, court shall so order and advise parties and DCA clerk.
• Within 60 days thereafter or other time set by the court, the clerk shall electronically transmit the record.

Question 52

Discretionary Proceedings to Review DCA Decisions

Briefs on Merits

Rule 9.120(f)

Answer 52

• Within 20 days of order accepting or postponing decision on jurisdiction, petitioner shall serve initial brief on the merits, accompanied by an appendix that must include a conformed copy of the DCA decision.
• Additional briefs in accordance with Rule 9.210.

Question 53

Review of Trial Court Orders and Judgments Certified by the DCAs as Requiring Immediate Resolution by the FSC

Commencement and Acceptance of Jurisdiction

Rule 9.125(a), (b), (g)

Answer 53

• DCA may make certification on its own or by motion of a party.
• Jurisdiction of FSC invoked on rendition of certificate by DCA.
• If FSC accepts jurisdiction, it will render order and advise parties and clerks of the DCA and lower tribunal.
• Clerk of court in possession of record shall electronically transmit it to FSC within 10 days.
• FSC will issue briefing schedule, and all papers formerly required to be filed in DCA shall be filed in FSC.
• If FSC denies jurisdiction, it shall advise all parties and the DCA clerk.

Question 54

Review of Trial Court Orders and Judgments Certified by the DCAs as Requiring Immediate Resolution by the FSC

Suggestion for Certification

Rule 9.125(c)-(f)

Answer 54

• Any party may file with DCA and serve on parties suggestion that order on review be certified by DCA to FSC.
• Suggestion shall be filed within 10 days of filing of notice of appeal.
• Response may be filed by any party within 5 days of service of suggestion.
• Suggestion limited to 5 pages and must include (1) statement of why requires immediate resolution by FSC; (2) statement of why appeal is of great public importance, or will have a great effect on the proper administration of justice throughout the state; (3) a certificate signed by the attorney stating I express a belief based on a reasoned and studied professional judgment that this appeal requires immediate resolution by the FSC and is of great public importance or will have a great effect on the administration of justice throughout the state; and (4) an appendix containing a conformed copy of the order on review.
• DCA not required to rule on suggestion.
• Time limitations and place of filing not altered by filing of suggestion or DCA’s rendition of a certificate.
• No rehearing permitted from an order granting or denying certification.

Question 55

Proceedings to Review Non-Final Orders and Specified Final Orders

Applicability

Rule 9.130(a)

Answer 55

• Applies to appeals to DCAs of non-final orders specified in rule, and appeals to circuit courts of non-final orders where provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be under Rule 9.100. Appeals of non-final orders in criminal cases shall be under Rule 9.140.
• Appeals to DCAs of non-final orders are limited to those that:
  
  • concern venue
  • grant, continue, modify, deny, or dissovle injunctions, or refuse to modify or dissolve injunctions
  • grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership
  • determine jurisdiction of the person
  • determine the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment
  • determine in family law matters the right to immediate monetary relief, the rights or obligations of a party regarding child custody or time-sharing under a parenting plan, or that a marital agreement is invalid in its entirety
  • determine the entitlement to a party to arbitration, or to an appraisal under an insurance policy
  • determine that as a matter of law a party is not entitled to workers’ compensation immunity
  • determine whether to certify a class
  • determine that as a matter of law a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law
  • determine that a governmental entity has taken action that inordinately burdened real property within the meaning of section 70.001(6)(a)
  • determine the issue of forum non conveniens
  • determine that as a matter of law a party is not entitled to immunity under section 768.28(9)
  • determine that as a matter of law a party is not entltled to sovereign immunity
• Orders disposing of motions that suspend rendition are not reviewable separately from review of the final order, provided that orders granting motions for new trial in jury and non-jury cases are reviewable under Rule 9.110.
• Orders entered on authorized and timely motions for relief from judgment are reviewable as non-final orders. However, motions for rehearing from such orders do not toll the time for filing the notice of appeal.

Question 56

Proceedings to Review Non-Final Orders and Specified Final Orders

Commencement and Proceedings

Rule 9.130(b)-(e)

Answer 56

• Notice and filing fees must be filed with lower tribunal within 30 days of rendition of order appealed.
• Notice must be designed as notice of appeal of non-final order.
• Except in criminal cases, conformed copy of order(s) designated shall be attached to notice.
• Record shall not be transmitted unless ordered.
• Initial brief with appendix due within 15 days of filing notice.

Question 57

Proceedings to Review Non-Final Orders and Specified Final Orders

Stay, Scope of Review, and Cross Appeals

Rule 9.130(f)-(i)

Answer 57

• In absence of a stay, lower tribunal may proceed with all matters including trial or final hearing, but may not render final order disposing of the cause pending such review absent leave of court.
• Appellee may cross appeal by serving a notice within 10 days of service of appellant’s timely notice of appeal or within the time for filing the notice of appeal, whichever is later. Notice of cross appeal with filing fees shall be filed either before service or immediately thereafter in same manner as notice of appeal.
• This rule doesn’t preclude initial review of a non-final order on appeal from the final order in the cause.
• Multiple non-final orders may be reviewed in a single notice if the notice is timely filed as to each.

Question 58

Appeal Proceedings in Criminal Cases

Applicability of Civil Rules

Rule 9.140(a)

Answer 58

Except where otherwise specified, appeals in criminal cases are the same as in civil cases.

Question 59

Appeal Proceedings in Criminal Cases

Appeals Permitted by Defendant

Rule 9.140(b)(1)

Answer 59

• Final judgment adjudicating guilt
• Final order witholding adjudication after finding of guilt
• order granting probation or community control, or both, whether or not guilt has been adjudicated
• orders entered after a final judgment of guilt, including orders revoking or modifying probation or community control or both, or orders denying relief under Fla. R. Crim. P. 3.800(a), 3.801, 3.850, 3.851, or 3.853
• an unlawful or illegal sentence
• a sentence, if the appeal is required or permitted by law
• as otherwise provided by law

Question 60

Appeal Proceedings in Criminal Cases

Guilty or Nolo Contendere Pleas

Rule 9.140(b)(2)(A)

Answer 60

A defendant cannot appeal from a guilty or nolo plea except:

• When the defendant expressly reserved the right to appeal a prior dispositive order, identifying with particularity the point preserved
• SMJ
• Violation of plea agreement, if preserved by a motion to withdraw plea
• involuntary plea, if preserved by a motion to withdraw plea
• Sentencing error, if preserved
• As otherwise provided by law

Question 61

Appeal Proceedings in Criminal Cases

Guilty or Nolo Contendere Pleas - Record

Rule 9.140(b)(2)(B)

Answer 61

Except in appeals of guilty or nolo pleas expressly reserved, record for appeals of such pleas shall be limited to:

• Indictments, informations, affidavits of violation of probation or community control, and other charging docs
• plea and sentencing hearing transcripts
• written plea agreements
• judgments, sentences, scoresheets, motions, and orders to correct or modify sentences, orders imposing, modifying, or revoking probation or community control, orders assessing costs, fees, fines, or restitution against the defendant, and any other docs relating to sentencing
• any motion to withdraw plea and order thereon
• notice of appeal, statement of judicial acts to be reviewed, directions to clerk, designation to approved court reporter or transcriptionist

Upon good cause shown, the court, or the lower tribunal before the record is transmitted, may expand the record.

Question 62

Appeal Proceedings in Criminal Cases

Appeals by Defendants

Commencement and Cross Appeals

Rule 9.140(b)(3), (4)

Answer 62

• Defendant must file notice of appeal with lower tribunal anytime between rendition of a final judgment and 30 days following rendition of a written order imposing sentence.
• Copies of notice of appeal must be served on state attorney and attorney general.
• Defendant may cross appeal by serving notice within 10 days of service of state’s notice or service of order on motion under Rule 3.800(b)(2).
• Review of cross appeals before trial is limited to related issues resolved in the same order being appealed.

Question 63

Appeal Proceedings in Criminal Cases

Appeals by the State

Rule 9.140(c)(1), (2)

Answer 63

The state may appeal an order:

• Dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release
• suppressing before trial confessions, admissions, or evidence obtained by search and seizure
• granting a new trial
• arresting judgment
• granting a motion for judgment of acquittal after a jury verdict
• discharging a defendant under Fla. R. Crim. P. 3.191
• discharging a prisoner on habeas corpus
• finding a defendant incompetent or insane
• finding a defendant intellectually disabled under Fla. R. Crim. P. 3.203
• granting relief under Fla. R. Crim. P. 3.801 or 3.853
• ruling on a question of law if a convicted defendant appeals the judgment of conviction
• witholding adjudication of guilt in violation of general law
• imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines
• imposing a sentence outside the range recommended by sentencing guidelines
• denying restitution
• as otherwise provided by general law for final orders

The state as provided by general law may appeal to the circuit court non-final orders rendered by the county court.

Question 64

Appeal Proceedings in Criminal Cases

Appeals by the State, Commencement

Rule 9.140(c)(3)

Answer 64

• State must file a notice with the lower tribunal clerk within 15 days of rendition of the order to be reviewed, provided that in an appeal by the state under Rule 9.140(c)(1)(k), the state’s notice of cross appeal shall be filed within 10 days of service of defendant’s notice or service of an order on a motion per Fla. R. Crim. P. 3.800(b)(2)
• Copies shall be served on the defendant and the attorney of record
• An appeal by the state stays further proceedings in the lower tribunal only by order of the lower tribunal

Question 65

Appeal Proceedings in Criminal Cases

Withdrawal of Defense Counsel After Judgment and Sentence or After Appeal by the State

Rule 9.140(d)

Answer 65

• Defense counsel shall not be relieved of professional duties or be permitted to withdraw except with approval of lower tribunal on good cause shown on written motion, until either time has expired for filing authorized notice of appeal and no such notice has been filed by defendant or state or after the following are done:
  
  • notice of appeal or notice of cross appeal has been filed on behalf of defendant or state
  • statement of judicial acts to be reviewed has been filed if a transcript will require expenditure of public funds
  • defendant’s directions to clerk have been filed, if necessary
  • designations to approved court reporter or transcriptionist have been filed for transcripts of those portions necessary for appellate issues or, if transcripts will require expenditure of public funds for defendant, of those portions of proceedings necessary to support statement of judicial acts to be reviewed
  • in publicly funded defense or state appeal, when lower tribunal has entered an order appointing the public defender for the local circuit, the district office of criminal conflict and civil regional counsel or private counsel per Ch. 27, that office or atty shall remain

counsel for the appeal until record is electronically transmitted. In publicly funded state appeals, defense counsel shall also file with the court a copy of the lower tribunal’s order appointing the local public defender, the office of criminal conflict and civil regional counsel, or private counsel. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the court, or defense counsel of record shall file a motion to withdraw in the court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the court shall be served on the attorney general (or state attorney in appeals to the circuit court).

• Orders allowing withdrawal of counsel are conditional and counsel shall remain of record for the limited purpose of representing the defendanti in the lower tribunal regarding any sentencing error the lower tribunal is authorized to address during the pendency of the direct appeal per Fla. R. Crim. P. 3.800(b)(2).

Question 66

Appeal Proceedings in Criminal Cases

Sentencing Errors

Rule 9.140(e)

Answer 66

• A sentencing error may not be raised on appeal unless the alleged error has been first brought to the attention of the lower tribunal (1) at the time of sentencing, or (2) by motion under Fla. R. Crim. P. 3.800(b).

Question 67

Appeal Proceedings in Criminal Cases

The Record - Service and Procedure

Rule 9.140(f)(1), (3)-(5)

Answer 67

• The lower court clerk shall prepare and serve the record within 50 days of filing the notice of appeal.
• Clerk shall not serve record until all proceedings designated have been transcribed and filed.
• If designated transcripts have not been filed by the date required for service of the record, the clerk shall file with the court and serve on all parties and any court reporter whose transcript hasn’t been filed a notice of inability to complete the record, listing transcripts not yet received.
• In cases where transcripts are filed after a notice from the clerk, the clerk shall prepare and file the record within 20 days of receipt.
• An order granting an extension of time for court reporter to transcribe shall toll the time for the clerk to serve this notice or the record on appeal.
• Unless otherwise ordered by the court, the lower court clerk shall retain original docs
• The lower court clerk shall serve copies of the record to the court, atty gen (or state atty if an appeal to circuit court), and all counsel appointed to represent indigent defendants on appeal. Clerk of lower court shall simultaneously serve copies of index on all non-indigent defendants and, upon their request, copies of the record or portions thereof at the cost prescribed by law.
• Except in death penalty cases, the court shall return the record to the lower tribunal after final disposition of the appeal

Question 68

Appeal Proceedings in Criminal Cases

The Record - Transcripts

Rule 9.140(f)(2)

Answer 68

• If a defendant’s designation of a transcript requires expenditure of public funds, trial counsel for defendant (in conjunction with appellate counsel, if possible) shall serve within 10 days of filing the notice a statement of judicial acts to be reviewed, and a designation to the approved court reporter or transcriptionist requiring preparation of only so much of the transcript as fairly supports the issue raised.
• Either party may file motions in lower tribunal to reduce or expand transcripts
• The parties shall designate the approved court reporter or transcriptionist to file with the clerk of the lower tribunal the transcripts for the court and sufficient paper copies for all parties exempt from service by email per Fla. R. Jud. Admin.
• Except non-indigent defendants represented by counsel may designate preparation of the transcripts. Counsel adopting this procedure shall file the transcripts within 5 days of receipt of the transcripts. Counsel shall file notice of use of this procedure on attorney general (or state attorney in appeals to circuit court) and clerk of lower tribunal. Counsel shall attach a certificate to each transcript certifying they are accurate and complete. When this procedure is used, the clerk of the lower tribunal upon conclusion of the appeal shall retain the transcripts for use as needed by the state in any collateral proceedings and shall not dispose of them without the consent of the Atty Gen.
• In state appeals, the state shall designate the approved court reporter or transcriptionist to prepare and file with the clerk of the lower tribunal transcripts and sufficient copies for all parties exempt from service by email. Or state may elect to use procedure provided above.
• Lower tribunal may by admin order in publicly funded cases direct clerk of lower tribunal rather than court reporter or transcriptionist to prepare necessary transcripts.

Question 69

Appeal Proceedings in Criminal Cases

Supplemental Record for Motion to Correct Sentence Error, Fla. R. Crim. P. 3.800(b)(2)

Rule 9.140

Answer 69

• Circuit court clerk shall automatically supplement appellate record with any motion under Fla. R. Crim. P. 3.800(b)(2), any response, order, and amended sentence. Clerk shall electronically transmit supplement to court within 5 days of filing of order on motion. If order not filed within 60 days of filing motion, time shall run from expiration of 60 day period, and clerk shall supplement record with motion and statement that no order was filed.
• If appellate counsel determines transcript needed to review sentencing issue, shall within 5 days of transmittal of supplement, designate portions of proceedings not on file and necessary for inclusion in the record, and file copy of designation with court. Counsel not required to file a revised statement of judicial acts to be reviewed. Approved court reporter or transcriptionist shall deliver transcript within 15 days, and clerk shall supplement record within 5 days of receipt.

Question 70

Appeal Proceedings in Criminal Cases

Briefs, Post-Trial Release, and Scope of Review

Rule 9.140(g)-(i)

Answer 70

• Initial briefs must be served within 30 days of service of record or designation of appointed counsel, whichever is later. Additional briefs served under Rule 9.210.
• Post-Trial Release
  
  • Appeals by defendant: Lower tribunal may hear a motion for post-trial release pending appeal before or after a notice is filed, provided the defendant may not be released from custody until the notice is filed.
  • Appeals by state: incarcerated defendant charged with billable offense shall on motion be released on defendant’s own recognizence pending an appeal by the state, unless lower tribunal for good cause stated in an order determines otherwise.
  • All orders denying post-trial release shall set forth the factual basis on which the decision was made and the reasons
  • Review of an order relating to post-trial release shall be by the court on motion
  • The court shall review all rulings and orders appearing in the record necessary to pass upon grounds for appeal. In the interest of justice, the court may grant any relief to which any party is entitled

Question 71

Review Proceedings in Collateral or Post-Conviction Criminal Cases

Appeals of Orders Involving a Summary Grant or Denial of All Claims Raised in a Motion Without Evidentiary Hearing, and Appeals of Orders Granting or Denying Motion After Evidentiary Hearing Held on One or More Claims

Rule 9.141(b)

Answer 71

• This rule doesn’t apply to death penalty cases
• With respect to appeals from post-conviction proceedings under Fla. R. Crim. P. 3.800(a), 3.801, 3.850, or 3.853:
  
  • Appeal proceedings as in civil cases except as modified by this rule
  • For appeals involving a summary grant or denial of all claims raised in a motion without evidentiary hearing:
    
    • Clerk of lower tribunal electronically transmits to court as record the motion and all ensuing pleadings thereon, with attachments, with certified copy of notice of appeal
    • Unless directed otherwise, clerk shall not index/paginate or send copies of the index or record to parties
    • Briefs not required, but appellant may serve initial brief within 30 days of filing notice of appeal. Appellee need not file answer brief unless directed by the court. Appellant may serve a reply.
    • Court may request a response from appellee before ruling regardless of whether appellant filed initial brief. Appellant can serve a reply within 20 days in such case.
    • On appeal from denial of relief, unless record shows conclusively that appellant is entitled to no relief, order shall be reversed and cause remanded for evidentiary hearing or other appropriate relief
  • For appeals involving a grant or denial of a motion after evidentiary hearing on one or more claims:
    
    • In absence of designations, notice of appeal filed by indigent pro se in Rule 3.801, 3.850, or 3.853 appeal after evidentiary hearing shall serve as designation for transcript of hearing. Within 5 days of receipt of notice of appeal, clerk of lower tribunal shall request court reporter to transcribe hearing and shall send court reporter a copy of the notice, date of hearing to be transcribed, name of judge, and copy of this rule.
    • Record:
      
      • Clerk of lower tribunal shall index, paginate, and electronically transmit to the court as the record, within 50 days of filing the notice of appeal, notice of appeal, motion and any pleadings and orders thereon with attachments, and copy of hearing transcript.
      • Appellant may direct clerk to include in record any other docs that were before the lower tribunal at the hearing. If clerk directed to include in record a previously prepared appellate record involving the appellant, the clerk need not reindex or repaginate.
      • Clerk of lower tribunal shall serve copies of record on atty gen (or state atty if appeal to circuit court), all counsel appointed to represent indigent defendants on appeal, and any pro se indigent defendant. Clerk of lower tribunal shall simultaneously serve copies of index on all nonindigent defendants and, at their request, copies of record or portions thereof at cost prescribed by law.
    • Briefs - initial briefs due within 30 days of service of record or index. Further briefs per 9.210.

Question 72

Review Proceedings in Collateral or Post-Conviction Criminal Cases

Petitions Seeking Belated Appeal or Belated Discretionary Review

Rule 9.141(c)

Answer 72

• Original proceedings
• Must recite in the statement of facts:
  
  • date and nature of lower tribunal’s order sought to be reviewed
  • name of lower tribunal
  • nature, disposition, and dates of all previous court proceedings
  • if a previous petition was filed, the reason the current claim wasn’t raised previously
  • nature of relief sought
  • specific acts sworn by petitioner or counsel that constitute entitlement to belated appeal or belated discretionary review
  • A petition seeking belated appeal must state whether petitioner requested counsel to proceed with the appeal and date of request, or if petitioner was misadvised as to availability of appellate review or status of filing a notice of appeal
  • Petition seeking belated discretionary review must state whether counsel advised petitioner of results of appeal and date of notification or if counsel misadvised petitioner of availability of discretionary review.
  • Petition seeking belated appeal or discretionary review must identify circumstances unrelated to counsel’s action or inaction including names of individuals involved and dates of occurrences beyond petitioner’s control which otherwise interfered with petitioner’s ability to file a timely appeal or notice to invoke.
• Must file no more than 2 years after deadline for notice of appeal/to invoke. If specific facts support did not know had not appealed, was not apprised of right to appeal, or was prevented from timely filing based on circumstances beyond control and could not have been fixed by reasonable diligence, can file up to 4 years later
• Petitioner serves a copy of petition for belated appeal on atty gen and state atty. Serves copy of petition for belated discretionary review on atty gen
• Court can allow service of amended petition if defective
• Court may dismiss second or successive petition if it doesn’t allege new grounds and prior determination was on the merits or if failure to assert grounds was an abuse of procedure
• Order granting petition for belated appeal shall be filed with lower tribunal and treated as notice of appeal if no previous notice filed. Order granting petition for belated discretionary review or belated appeal of a DCA decision shall be filed with DCA and treated as notice to invoke discretionary jurisdiction or notice of appeal, if no previous notice has been filed.

Question 73

Review Proceedings in Collateral or Post-Conviction Criminal Cases

Petitions Alleging Ineffective Assistance of Appellate Counsel

Rule 9.141(d)

Answer 73

• Treated as original proceeding
• Filed in court to which appeal was taken
• Shall recite in statement of facts
  
  • date and nature of lower tribunal’s order subject to disputed appeal
  • name of lower tribunal rendering order
  • nature, disposition, and dates of all prior court proceedings
  • if prior petition filed, reason issue not raised previously
  • nature of relief sought
  • specific acts sworn by petitioner or counsel that constitute the alleged ineffective assistance of counsel
• Filed no more than 2 years after judgment and sentence become final on direct review unless alleges under oath facts showing petitioner misled about results of appeal by counsel (then extended to 4 years).
• Petitioner must serve copy of petition on atty gen.
• Court may allow petitioner to serve amended petiiton to correct defect
• Court may dismiss second or successive petition if doesn’t allege new grounds and prior determination was on the merits or if failure to assert grounds was an abuse of procedure

Question 74

Procedures for Review in Death Penalty Cases

The Record

Rule 9.142(a)(1)

Answer 74

• When notice of appeal filed in FSC, chief justice will direct appropriate chief judge of circuit court to monitor prep of complete record for timely filing.
• Contents of record include everything in 9.200 and per order of FSC.
• All transcripts shall be included.
• In any appeal following initial direct appeal, record that is electronically transmitted shall begin with the most recent mandate issued by the FSC, or the most recent filing not already electronically transmitted in a prior record in the event the preceding appeal was disposed of without a mandate and shall exclude any materials already transmitted to FSC as record in any prior appeal. Clerk of lower tribunal shall retain a copy of the complete record when it transmits it to the FSC.
• FSC shall take judicial notice of appellate records in all prior appeals and writ proceedings involving a challenge to the same judgment of conviction and death sentence. Appellate records subject to judicial notice shall not be duplicated in record transmitted for appeal under review.
  *

Question 75

Procedures for Review in Death Penalty Cases

Procedures

Rule 9.142(a)(2)-(5)

Answer 75

• After record filed, clerk establishes briefing schedule allowing defendant 60 days from date record filed, the state 45 days from date brief served, and defendant 30 days from date state’s brief served.
• On appeal from orders ruling on relief under Fla. R. Crim. P. 3.851 or 3.853, and on resentencing matters, schedules in 9.140(g) control.
• If any brief is delinquent, order to show cause may issue under Fla. R. Crim. P. 3.840 band sanctions may be imposed.
• OA scheduled after filing of defendant’s reply brief
• On direct appeal and in death penalty cases whether or not insufficiency of evidence or proportionality is an issue presented for review, court shall review these issues and if necessary remand for appropriate relief
• *

Question 76

Procedures for Review in Death Penalty Cases

Petitions for Extraordinary Relief (including petitions seeking belated appeal and ineffective assistance of counsel relief)

Rule 9.142(b)

Answer 76

• Treated as original proceedings under Rule 9.100
• Statement of facts must include date and nature of order sought to be reviewed, name of lower tribunal, nature, disposition, and dates for prior court proceedings, if prior petition was filed the reason this claim wasn’t then raised, nature of relief sought.
• For petitions seeking belated appeal, must include detailed sworn fact allegations that support entitlement to belated appeal including whether and when petitioner asked counsel to appeal, whether counsel misadvised petitioner as to availability of appeal or filing of notice of appeal, or whether there were other circumstances including names of individuals involved and dates of occurrences beyond petitioner’s control. File no more than 1 year after time notice of appeal was due from final order denying Rule 3.851 relief unless alleges under oath unaware appeal not timely filed, misadvised or not advised re right of appeal, or prevented from timely filing due to circumstances beyond control, and couldn’t have ascertained with exercise of due diligence (in which case 2 year limit).
• For proceedings alleging ineffective assistance of counsel, must allege specific acts at issue. Petition must be filed simultaneously with initial brief in appeal of denial of rule 3.851 motion
  *

Question 77

Procedures for Review in Death Penalty Cases

Petitions Seeking Review of Nonfinal Orders in Death Penalty Postconviction Proceedings

Rule 9.142(c)

Answer 77

• Applies to proceedings invoking jurisdiction of FSC for review of nonfinal orders issued in postconviction proceedings following imposition of death penalty.
• Treated as original proceedings under Rule 9.100.
• FSC jurisdiction invoked by filing petitionwith clerk of FSC within 30 days of rendition of nonfinal order. Copy of petition served on opposing party and on judge. State and defendant can both appeal under this rule.
• Petiiton in form under 9.100 and shall contain basis for invoking jurisdiction, date and nature of order sought to be reviewed, name of lower tribunal, name, disposition, and dates of all prior trial, appellate, and postconviction proceedings relating to conviction and death sentence, facts with references to appendix, argument in support including why order departs from essential requirements of the law and how may cause material injury for which no adequate remedy on appeal, citations of authority, and nature of relief sought.
• If petition demonstrates preliminary basis for relief, court may direct respondent to show cause within time set by court to show cause. No response unless ordered by court. If response, petitioner can serve reply within 20 days no more than 15 pages, and supplemental appendix.
• Party seeking stay must petition FSC. Unless stay granted, lower tribunal may proceed with all matters except cannot render final order disposing of cause.
• Parties shall not file any other pleadings, motions, replies, or miscellaneous docs without leave of court.
• Seeking review under this rule does not extend time limits in rule 3.851 or 3.852.
• *

Question 78

Procedures for Review in Death Penalty Cases

Review of Dismissal of Post-Conviction Proceedings and DIscharge of Counsel Under Fla. R. Crim. P. 3.851(i) Cases

Rule 9.142(d)

Answer 78

• Applies when circuit court enters order dismissing postconviction proceedings and discharging counsel under Rule 3.851(i)
• After rendition of order of dismissal and discharge, within 10 days, discharged counsel shall file with the clerk of the circuit court a notice seeking review in the FSC
• Circuit judge shall order transcript of hearing to be prepared and filed with clerk no more than 25 days from rendition of final order
• Within 30 days of granting motion to dismiss and discharge, clerk of circuit court shall electronically transmit copy of motion, order, and transcripts of all hearings on motion to FSC clerk
• Within 20 days of filing record in FSC, discharged counsel shall serve initial brief. State and prisoner may serve responsive briefs.

Question 79

Appeal Proceedings in Juvenile Delinquency Cases

Rule 9.145

Answer 79

• As set forth in Rule 9.140 except as provided by this rule
• To extent adversely affected, child or their parent, legal guardian, or custodian may appeal order of adjudication of delinquency or witholding adjudication or any disposition order thereon, orders entered after such adjudication or witholding including orders revoking or modifying community control, illegal disposition, or any other final order as provided by law
• State may appeal an order dismissing petition of delinquency or part thereof if order entered before commencement of adjudicatory hearing, suppressing confessions, admissions, or evidence obtained by search or seizure before adjudicatory hearing, granting new adjudicatory hearing, arresting judgment, discharging a child under Fla. R. Juv. P. 8.090, ruling on question of law if child appeals order of disposition, constituting illegal disposition, discharging child on habeas corpus, or finding child incompetent per Fla. R. Juv. P.
• Non-Final State Appeals: If State appeals pre-adjudicatory hearing order of trial court, notice must be filed within 15 days of rendition of order to be reviewed and before commencement of adjudicatory hearing. A child in detention whose case is stayed pending state appeal shall be released from detention pending appeal if offense would be bailable if charged as adult, unless lower tribunal for good cause stated in order determines otherwise. Lower tribunal retains discretionto release from detention any child not otherwise entitled to release under this rule. If child incompetent, any order staying proceeings on state appeal shall have no effect on order entered for purposes of treatment
• Appeal entered and docketed with initials only of child and case number. All references to child throughout proceedings by intiials.
• All docs filed in paper format under seal shall remain sealed in clerk’s office when not in use by court, not open to inspection except by parties and counsel unless otherwise ordered.

Question 80

Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children in Need of Services

Rule 9.146

Answer 80

• As in civil cases except as modified by this rule
• Any child, parent, guardian ad litem, or other affected party, or state agency as provided by law may appeal
• Stay: file motion in lower tribunal which has continuing jurisdiction to grant, modify, or deny such relief in its discretion in best intrerests of child. No auto stay in TPR cases without order of court., except in a TPR case with order placing child with licensed child-placing agency or DCF for subsequent adoption shall be suspended while appeal pending but child shall continue in custody pending appeal.
• Transmittal of record doesn’t remove jurisdiction of lower tribunal to conduct judicial reviews or other proceedings related to health and welfare of child pending appeal.
• Initials used in proceedings to reference child and parent
• All docs filed in paper format under seal shall remain sealed in clerk’s office when not in use and shall not be open to inspection except to parties and their counsel or as otherwise ordered
• Court gives priority to appeals under this rule
• Special procedures and time limits applicable to appeals of final orders in dependency or TPR proceedings:
  
  • Applies only to appeals of final orders to DCAs
  • Record as in 9.200 except:
    
    • Re transcripts, appellant shall file designation to court reporter including name of individual court reporter with notice of appeal, designation shall be served on court reporter on date of filing and shall state appeal is from final order of TPR or dependency. Ct reporter shall file with clerk transcript and sufficient copies for those exempt from email service within 20 days of service. If court reporter needs more time, must request extension, days needed, and extraordinary reason why
    • Appellant must file directions to clerk with notice of appeal. Clerk must electronically transmit record to court within 5 days of date court reporter files transcript or if designation has not been filed, within 5 days of notice of appeal. When record electronically transmitted to court, clerk shall simultaneously transmit to DCF, guardian ad litem, counsel appointed to represent indigent parties, and shall simultaneously serve copy of index on non-indigent parties and upon their request copies of record or portions thereof. Clerk shall provide record in paper form to all parties exempt from service by email.
  • Briefs: prepared and filed per Rule 9.210(a)-(e), (g), and (h). IB served within 20 days of service of record or index, AB served within 20 days of IB, and reply served within 10 days of AB.
  • A motion for appointment of appellate counsel, and a motion for authorization of payment of transcription costs, when appropriate, must be filed with NOA. Motion and copy of NOA must be served on presiding judge in lower tribunal, who shall promptly enter order on motion.
  • A motion to withdraw as counsel by appellate counsel for an indigent parent, motion shall be served on parent and certify that after conscientious review of record, atty has determined in good faith there are no meritorious grounds for appeal. Parent may file brief pro se or through subsequently retained counsel within 20 days of issuance of order to withdraw.
  • Motions for extension of time granted only for extraordinary circumstances in which extension necessary to preserve constitutional rights of a party or where substantial evidence demonstrates without extension child’s best interests will be harmed. Extension limited to days necessary to preserve rights of party or child’s best interest. Motion must state appeal is from final order of TPR or dependency and set out extraordinary circumstances requiring extension, amount of time requested, and effect extension will have on progress of case.
  • OA request must be served no later than deadline for first brief of that party.
  • No response permitted to any motion for rehearing, rehearing en banc, clarification, certification, or issuance of written opinion unless ordered by court
  • Clerk shall issue mandate or process as directed by court as soon as practicable
• *

Question 81

Appeal Proceedings to Review Final Orders Dismissing Petitions for Judicial Waiver of Parental Notice of Termination of Pregnancy

Rule 9.147

Answer 81

• As in civil cases except as modified by rule
• No filing fee required
• If unmarried minor or other person on her behalf appeals an order dismissing petition for judicial waiver, clerk of lower tribunal shall prepare and electronically transmit record as described in 9.200(d) within 2 days of filing of notice of appeal.
• Court shall render decision on appeal as expeditiously as possible and no later than 7 days after transmittal of record. If no decision rendered within that time, order deemed reversed, petition deemed granted, and clerk shall place certificate to this effect in file and provide appellant with copy without charge
• Briefs, OA or both may be ordered at court’s discretion. Appellant may move for leave to file brief and may request OA
• Proceedings remain confidential so minor will remain anonymous. File sealed unless otherwise ordered.
• If dismissal is reversed, clerk shall furnish appellant without charge certified copy of decision or clerk’s certificate for delivery to minor’s physician

Question 82

Discretionary Proceedings to Review Certified Questions from Federal Courts

Rule 9.150

Answer 82

• On either own motion or that of a party, SCOTUS or US Court of Appeals may certify one or more questions of law to FSC if answer is determinative of the cause and there is no controlling precdent from FSC
• Question may be certified in an opinion by fed ct or by separate certificate, but fed ct should provide style of case, statement of facts showing nature of cause and circumstances out of which questions arise, and questions to be answered. Certificate shall be certified to FSC by clerk of fed ct
• FSC in its discretion may require copies of any portion of the record before fed ct to be filed if record may be necessary to determination of the cause
• If FSC in its discretion requires briefing, it will issue an order establishing order and schedule of briefs
• Taxation of costs for these proceedings is a matter for fed ct not governed by these rules

Question 83

Discretionary Proceedings to Review Decisions of County Courts

Rule 9.160

Answer 83

• Applies to proceedings that invoke discretionary jurisdiction of DCA to review county court orders per 9.030(b)(4)
• An appeal of order certified by county court to be of great public importance must be taken to DCA. DCA jurisdiction invoked by filing notice and order containing certification, with any filing fees, with clerk of lower tribunal. Time for filing appeal the same as in appeals being taken from county to circuit court.
• In addition to notice requirements, should reference certification. Except in criminal cases, conformed copy of order designated in NOA shall be attached to notice together with any order entered on a timely motion postponing rendition of orders appealed
• Certification may be made in order subject to appeal or disposing of motion postponing rendition. Certification shall include findings of fact and conclusions of law and concise statement of issues of great public importance
• Any party may suggest order be certified, however decision to do so within absolute discretion of county court and may be made by county court on own motion
• DCA in absolute discretion shall by order accept or reject jurisdiction. Until entry of such order, temp jurisdiction shall be in DCA
• If DCA accepts jurisdiction it will decide all issues that would have been subject to appeal if taken to circuit court
• If DCA declines jurisdiction, shall transfer case and filing fee to circuit court with jurisdiction
• Record shall be prepared and filed as per Rule 9.110(e) or 9.140(f) depending on nature of appeal
• Form of briefs and schedule as per 9.110(f), 9.140, 9.210, and 9.220, depending on nature of appeal
• Cross appeals permitted according to applicable rules only in cases where would’ve been authorized had appeal been taken to circuit court
• All other matters govered by rules that would apply if appeal had been taken to circuit court

Question 84

Appeal Proceedings in Probate and Guardianship Cases

Rule 9.170

Answer 84

• As in civil cases except as modified by rule
• Except for proceedings under 9.100 and 9.130(a), limited to orders that finally determine a right or obligation of an interested person as defined in Florida Probate Code. Such orders include, but are not limited to those that determine a petition or motion to revoke letters of administration or of guardianship, determine a petition or motion to revoke probate of a will, determine a petition for probate of a lost or destroyed will, grant or deny a petition for administration per Section 733.2123, grant heirship, succession, entitlement or determine the persons to whom distribution should be made, remove or refuse to remove a fiduciary, refuse to appoint a PR or guardian, determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward, determine a motion or petition to restore capacity rights of a ward, determine a petition to approve settlement of minor’s claim, determine apportionment or contribution of estate taxes, determine an estate’s interest in property, determine exempt property, family allowance, or homestead status of property, authorize or confirm sale of real or personal property by a PR, make distributions to a beneficiary, determine amount and order contribution in satisfaction of elective share, determine a motion or petition for enlargement of time to file a claim against an estate, determine a motion or petition to strike an objection to a claim against the estate, determine a motion or petition to extend the time to file an objection to a claim against an estate, determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate, settle an account of a PR, guardian or fiduciary, discharge fiduciary or fiduciary’s surety, award fees or costs, approve a settlement agreement on any matters listed or authorizing a compromise per Section 733.708.
• Appeal may proceed on record prepared by clerk or appendices to briefs as elected by parties within timeframes in Rule 9.200(a)(3) for designating record. Clerk of lower tribunal shall prepare record on appeal under 9.200 unless appellant directs no record be prepared. Any other party may direct clerk to prepare record per 9.200. If no record prepared, use appendices under 9.220.
• Initial brief and appendix (if applicable) shall be served within 70 days of filing notice of appeal.
• Court may review any order or matter related to order on appeal occurring before filing of notice of appeal except any order that was appealable by this rule. Multiple orders separately appealable under 9.170(b) may be reviewed by single notice if timely as to all orders.

Question 85

Appeal Proceedings to Review Workers’ Compensation Cases

Rule 9.180

Answer 85

• As in civil cases except as modified by rule
• Jurisdiction on appeal:
  
  • First DCA shall review final order or non-final order of lower tribunal adjudicating jurisdiction, venue, or compensability provided the orde expressly finds injury occurred within scope and course of employment and claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time.
  • Unless a request for findings of fact and conclusions of law is timely filed, review by appeal of an abbreviated final order shall be deemed waived. The filing of a timely request tolls the time within which an abbreviated final order becomes final or an appeal may be filed.
  • Jurisdiction invoked by filing notice of appeal with lower tribunal within 30 days of date lower tribunal sends to parties order to be reviewed either by mail or electronic means approved by deputy chief judge, which date shall be date of rendition. Filing fee proscribed by law shall be provided to clerk or verified petition for relief of payment of fee must be filed with notice of appeal.
  • Notice shall be in regular form, and shall contain brief summary of type of benefits affected including statement setting forth time periods involved: I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment: Compensation for . . . from . . . to . . .; Medical benefits; Rehabilitiation; Reimbursement from SDTF for benefits paid from . . . to . . . .; Contribution for benefits paid from . . . to . . . .
• Jurisdiction of lower tribunal: retains jurisdiction to decide issues not adjudicated that aren’t subject to appellate review; at any time before record filed, has auhority to approve settlements or correct clerical errors in order appealed.
• If settlement reached after record filed, parties shall file joint motion stating settlement has been reached and seeking relinquishment for entry of order. If Division of WC has advanced costs of preparing record or filing fee copy of joint motion shall be furnished to division by appellant. On or before date specified in relinquishment order, parties shall file joint notice of disposition of settlement with conformed copy of order on settlement. Any order approving settlement shall provide where appropriate for assessment of costs including costs incurred by division for insolvent appellants.
• Benefits referenced in notice of appeal may be withheld as provided by law pending outcome of appeal. Otherwise, benefits shall be paid as required. If appellant or cross appellant fails to argue entitlement to benefits named in notice of appeal or cross appeal in initial brief, challenge deemed abandoned. If there is a dispute as to abandonment, court shall decide upon motion. Upon abandonment, benefits no longer affected by appeal are payable within 30 days of service of brief with interest as required under Section 440.20 from date of order of lower tribunal making award. If benefits are ordered paid upon completion of the appeal, they shall be paid together with interest under 440.20 within 30 days of mandate. If order appealed to FSC, benefits due may be stayed under 9.310. Benefits ordered paid by FSC shall be paid within 30 days of mandate.
• Intervention by Division of WC: Within 30 days of filing of notice or petition invoking jurisdiction, Division may intervene by filing a notice of intervention as a party/appellant/petitioner or appellee/respondent with the court and take positions on relevant matters. Includes FSC, where clerk must provide copy of pertinent docs to Division. Division not a party until notice to intervene filed.
• Record for Final Order Appeals:
  
  • Shall contain petition for benefits, notices of denial, pretrial stip, pretrial order, trial memoranda, depositions or exhibits admitted into evidence, motion for rehearing and response and order thereon, hearing transcripts, and order appealed. May designate other items per 9.200.
  • Evidence proffered but not introduced not included unless admissibility is issue on appeal and question properly designated for inclusion in record by a party.
  • Parties may stip as to record contents - in such cases, record consists of stipulated statement and order appealed which lower tribunal shall certify as record on appeal.
  • Costs: Within 5 days after contents of record determined, lower tribunal shall notify appellant estimated cost of record prep and shall notify Division estimated record costs if appellant files verified petition to be relieved of costs and sworn financial affidavit. Within 15 days of service of notice of estimated costs, appellant shall deposit sum of money equal to estimated costs with lower tribunal; if fails to do so, lower tribunal shall notify court which may dismiss appeal. Any self-insured state agency or branch of state government, including Division of WC and SDTF, need not deposit costs.
  • If additional costs incurred in correcting, amending, or supplementing record, lower tribunal shall assess costs against appropriate party. If Division is obligated to pay costs due to appellant’s indigency, must be given notice of any proceeding to assess additional costs. Within 15 days of entry of order assessing costs, assessed party must deposit sums ordered with lower tribunal. Lower tribunal shall promptly notify court if costs are not deposited as required.
  • Deputy chief JCC shall select reporter or transcriber to transcribe any hearings. Deputy chief judge who makes selection shall notify parties. Any party may object by filing written objections with judge who made selection within 15 days after service of notice of selection. Within 5 days of filing objection, judge shall hold hearing, with time limits in rule extended as appropriate. The reporter or transcriber shall certify and deliver an electronic version of the transcript to the clerk of the office of the JCC in sufficient time for clerk of office of JCC to incorporate transcripts into record. Reporter or transcriber shall promptly notify all parties in writing when transcripts delivered to clerk.
  • Deputy chief judge of JCC shall designate person to prepare record. Clerk of office of JCC shall supervise prep. Record shall be delivered to lower tribunal in sufficient time for it to review and submit to First DCA. Lower tribunal shall review original record, certify prepared in accordance with these rules, and within 60 days of notice of appeal, transmit it to court. Shall provide electronic image for counsel and all unrepresented parties.
  • Extensions: For good cause, lower tribunal may extend no more than 30 days filing of record. First DCA may grant further extensions upon motion.
  • Rule 9.200(a)(3), (c), and (f) shall apply to prep of record.
• Relief from filing fee and costs: indigency: defined as insolvency under 440.02. File verified motion or petition of indigency under Section 57.081(1) with lower tribunal along with notice of appeal. May relieve appellant of filing fees.
  
  • Statement supporting petition must include request to be relieved of filing fees due to indigency, and inability to pay and request for entry of order or certificate of indigency.
  • If unrepresented by counsel, must also file financial affidavit; if represented by counsel, counsel shall certify investigated appellant’s financial condition and finds appellant indigent and nature of appellant’s position as meritorious as a matter of law. Counsel shall certify has not been paid or promised a fee except for amount if any approved by lower tribunal to be paid by employer/carrier if such entitlement determined by court.
  • Appellant shall serve copy of verified petition or motion of indigency including financial affiavit or counsel’s certificate on all interested parties and clerk of court.
  • Lower tribunal shall review verified petition or motion for indigency and supporting docs without a hearing and if finds compliant with 57.081(1), may issue certificate or order, after which appellant may proceed without further application to court and without payment of any filing fees. If lower tribunal enters order denying relief, appellant must deposit filing fee within 15 days unless timely review sought by motion to First DCA.
  • Costs of Record Prep: appellant may be relieved in whole or in part from costs of record prep by filing with lower tribunal verified petition to be relieved of such costs and copy of designation of record. Verified petition shall contain sworn affidavit listing income and assets, including marital, and expenses and liabilities. Shall contain request to be relieved of costs due to insolvency and include statement by attorney or appellant if unrepresented that appeal filed in good faith and court reasonably could find reversible error in record and shall state with particularity specific factual and legal grounds. Verified petition including affidavit shall be served on all interested parties including Division of WC, office of GC of DFS, and clerk of court. After 15 days notice, lower tribunal shall hold hearing and rule on petition. If no objection to petition is filed by Division or a party within 20 days after petition served, lower tribunal may enter order on merits without hearing.
  • If petition granted, 60-day period for record prep will run from date of order granting. If denied or only granted in part, petitioner shall deposit costs with lower tribunal within 15 days from date order entered. 60 day deadline for record prep runs from date estimated cost deposited with lower tribunal. If petition withdrawn, petitioner shall deposit estimated costs upon withdrawal, with 60-day period running from date of withdrawal.
  • Payment of Costs for Record Prep by Administration Trust Fund: If petition granted, lower tribunal may order WC Admin Trust Fund to pay costs of record prep pending final disposition of appeal. Lower tribunal shall provide copy of order to all interested parties, including Division, GC of DFS, and clerk of court. If appeal successful, appellee shall reimburse costs paid by Fund within 30 days of mandate.
  • Briefs: In final order appeals, within 30 days after lower tribunal certifies record, appellant shall serve intiial brief. In non-final order appeals, appellant shall serve initial brief with appendix within 15 days of filing notice. Further briefs per 9.210. A motion to strike a brief or portion thereof will not be entertained. However, a party in its own brief may call to court’s attention breach of rules. If no further responsive brief authorized, noncompliance may be brought to court’s attention by suggestion of noncompliance. Statements in brief not supported by record shall be disregarded and may support sanctions.
• Attorneys’ Fees and Appellate Costs: Taxed as provided by law, include items in 9.400 and costs for transcript included in appendix as part of appeal in nonfinal order. Motion for attorneys’ fees per 9.400(b). If court determines appellate fee due, lower tribunal shall have jurisdiction to conduct hearings and consider evidence re amount of fee and costs due after mandate. Review per 9.400(c).
  *

Question 86

Judicial Review of Administrative Action

Applicability and Commencement

Rule 9.190(a), (b)

Answer 86

• As in civil cases except as modified by rule
• For final agency actions per APA, ch 120, including immediate final orders per 120.569(2)(n) or other admin action for which review provided by general law, commence per 9.110(c) (final order appeals).
• For review of nonfinal agency action under APA, including nonfinal action by ALJ and agency orders under 120.60(6), commence with petition under 9.100(b) and (c).
• For review of quasi-judicial decisions of administrative body, agency, board, or commission not subject to the APA, commence by filing petition for writ of certiorari under 9.100(b) and (c), unless judicial review by appeal provided by general law.
  *

Question 87

Judicial Review of Administrative Action

The Record

9.190(c)

Answer 87

• Includes only materials furnished to and reviewed by lower tribunal in advance of administrative action to be reviewed.
• Review of Final Action Under APA:
  
  • In an appeal from any proceeding per 120.56 (rule challenges) or 120.569 (decisions that affect substantial interests) and 120.57(1) (decisions that affect substantial interests involving disputed material facts), record shall consist of all notices, pleadings, motions, and intermediate rulings, evidence admitted, matters officially recognized, proffers of proof and objections and rulings, proposed findings and exceptions, any decision, opinion, order or report by presiding officer during hearing or prior to disposition, after notice of submission to all parties, except communications by advisory staff as permitted under Section 120.66(1), if such are public records, all matters placed on record after ex parte communication, and official transcript.
  • In appeal from proceedings under 120.569 (decisions affecting substantial interests) and 120.57(2) (decisions affecting substantial interests involving no disputed issues of material fact), the record shall consist of notice and summary of grounds, evidence received, all written statements submitted, any decisions overruling objections, all matters placed on record after ex parte communication, official transcript, and any decision, opinion, order, or report by presiding officer.
  • In appeal from any proceeding per 120.565 (declaratory statements), record shall consist of petition seeking declaratory statement and pleadings filed with agency, notices related to petition published in FL Admin Weekly, declaratory statement issued by agency or agency’s denial of petition, and all matters listed above if hearing held on declaratory statement petition.
  • In an appeal from any proceeding per Section 120.574 (summary proceeding), record consists of all notices, pleadings, motions, and intermediate rulings, evidence received, statement of matters officially recognized, proffers of proof and objections and rulings thereon, matters placed on record after ex parte communication, written decision of ALJ presiding at final hearing, and official transcript of final hearing.
  • In appeal from rule adoption per 120.54 (rule adoption) and 120.68(9) in which sole issue presented is constitutionality of rule and there are no disputed issues of fact, record shall consist of only docs from rulemaking record compiled by agency that materially addresses constitutional issue. Agency’s rulemaking record consists of all notices given for proposed rule, any statement of estimated regulatory costs for rule, written summary of hearings on proposed rule, written comments and responses thereto under 120.54 (rule adoption) and 120.541 (statement of estimated regulatory costs), all notices and findings per 120.54(4) (adoption of emergency rules), all materials filed by agency with Admin Procedures Committee per 120.54(3) (rule adoption procedures), all materials filed with Dept. of State per 120.54(3), and all written inquiries from standing committees of legislature concerning rule.
  • In appeal from immediate final order entered under 120.569(2)(n), record compiled in appendix per 9.220 and served with briefs.
• Review of Non-Final Action Per APA: governed by Rules 9.100 and 9.220.
• Review of Admin Action Not Subject to APA: clerk of lower tribunal not required to prepare record or index. Petitioner or appellant shall submit appendix per 9.220. Supplemental appendices may be submitted by any party. Appendices may not contain matter not made part of record in lower tribunal.
• Wherever hearing testimony preserved by videotape rather than official transcript, testimony from videotape shall be transcribed and made part of record before record submitted to court.
• Record contents may be modified per 9.200(a)(3).
  *

Question 88

Judicial Review of Administrative Action

Attorneys’ Fees

Rule 9.190(d)

Answer 88

• May be served no later than time for service of reply brief and shall state grounds on which recovery sought, citing pertinent statutes.
• If court awards fees, may remand to lower tribunal, ALJ, or special magistrate for determination re amount.
• Review of orders entered by lower tribunal or ALJ shall be by motion to appellate court within 30 days of rendition of order. Objections to reports of special magistrates shall be filed with court within 30 days after report filed with court.

Question 89

Judicial Review of Administrative Action

Stay Pending Review

Rule 9.190(e)

Answer 89

• Application for Stay Under APA:
  
  • File motion with lower tribunal or, for good cause shown, with court in which notice or petition filed. Motion shall not operate as stay. Lower tribunal or court may grant stay upon appropriate terms. Review of orders entered by lower tribunals shall be by court on motion.
  • When agency has ordered emergency suspension, restriction, or limitations of a license under 120.60(6) or issued immediate final order under 120.569(2)(n), affected party may file with reviewing court motion for stay on expedited basis. Court may issue order to show cause and after considering agency’s response if timely filed grant stay on appropriate terms. When order suspending or revoking license on emergency basis has been stayed, agency may apply to court for dissolution or modification of stay on grounds that subsequently acquired information demonstrates that failure to dissolve or modify stay would constitute probable danger to public health, safety, or welfare of the state.
  • When agency has suspended or revoked a license other than on emergency basis, licensee may file motion to stay on expedited basis, agency may file response within 10 days or shorter period as prescribed by court, Unless agency files timely response showing stay would constitute probably danger to health, safety, or welfare of state, court shall grant motion to stay.
• Application for Stay or Supersedeas of Other Administrative Action: A party seeking to stay an administrative action not governed by APA shall file a motion in the lower tribunal, which shall have continuing jurisdiction in its discretion to grant modify or deny such relief. May condition stay on posting of good and sufficient bond, other conditions or both. Review of orders entered by lower tribunals shall be by court on motion.
• Stay entered by lower tribunal or court shall remain in effect during pendency of all review proceedings in Florida courts until mandate issues unless otherwise modified or vacated.

Question 90

The Record

Rule 9.200