Florida Appellate Rules Flashcards
Which rule allows appellate court to overlook procedural error of appeal to reach merits?
Fla. R. App. P. 9.040(d)
What is considered “administrative action” under Fla. R. App. P.?
(1) final agency action as defined in APA, Ch. 120, Fla. Stat.
(2) nonfinal action by an agency or ALJ reviewable under the APA
(3) quasi-judicial decisions by any administrative body, agency, board or commission not subject to the APA
(4) admin. action for which judicial review is provided under general law
What is all writs jurisdiction/power?
Used to protect the jurisdiction of the court.
What is the most common application of all writs jurisdiction?
Enforce a stay of the lower court proceedings to keep the status quo.
Fla. R. App. P. 9.020 contains what?
Definitions.
How does Fla. R. App. P. 9.020 define “rendition”?
“An order is entered when a signed, written order is filed with the clerk.”
Are a lower tribunal’s minutes considered an order? What rule?
No. Fla. R. App. P. 9.020(f) defines Orders.
Which rule contains the list of tolling motions?
Fla. R. App. P. 9.020(h).
What are the tolling motions?
(A) motion for new trial; (B) motion for rehearing; (C) motion for certification; (D) motion to alter or amend; (E) motion for judgment in accordance with prior motion for directed verdict; (F) motion for arrest of judgment; (G) motion to challenge the verdict;
What happens when a notice of appeal is filed before an order is entered disposing of a timely filed tolling motion?
The appeal shall be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion.
What’s the requirement for an amendment to a final order to restart the appeal clock?
A material change to the order.
“Disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly settled with finality.” St. Mortiz Hotel v. Daughtery (Fla. 1971).
Does rehearing of an order granting a new trial toll?
It does not toll because the order is technically nonfinal (even though it’s appealable).
What do you do if the trial judge refuses to enter a written order?
Rule 9.020 requires a written order to appeal. If the trial court refuses, file a petition for a writ of mandamus.
Which rule has the font requirements?
Fla. R. App. P. 9.045 = Form of Documents
b) Font –> Bookman Old Style / Arial (14 pt
(e) Certificate of Compliance
What’s the Florida Supreme Court’s original/mandatory jurisdiction? And what’s the Rule?
Rule 9.030(a).
(i) Final orders imposing death sentence.
(ii) Decisions of DCAs declaring statute or constitution invalid.
(iii) Final orders entered in proceedings for the validation of bonds or certificates of indebtedness.
(iv) Action of statewide agencies relating to rates or
service of utilities providing electric, gas, or telephone service.
What’s the Florida Supreme Court’s discretionary jurisdiction? And what’s the Rule?
(A) decisions of district courts of appeal that:
(i) expressly declare valid a state statute;
(ii) expressly construe a provision of the state or federal constitution;
(iii) expressly affect a class of constitutional or state
officers;
(iv) expressly and directly conflict with a decision of
another district court of appeal or of the supreme court on the same question of law;
(v) pass upon a question certified to be of great public importance; or
(vi) are certified to be in direct conflict with decisions of other district courts of appeal;
(B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and:
(i) to be of great public importance; or
(ii) to have a great effect on the proper administration of justice; or
(C) questions of law certified by the Supreme Court of the United States or a United States court of appeals that are determinative of the cause of action
and for which there is no controlling precedent of the Supreme Court of Florida.
If a public service commission determination is not appealed to the Florida Supreme Court… to which DCA does it go? And, also, worker’s compensation?
1st DCA.
When do you appeal a criminal judgment? What about cross-appeal? And what’s the Rule?
Fla. R. App. P. 9.140(b).
File notice any time between rendition of a final judgment & 30 days following written order imposing a sentence.
Cross-appeal… 15 days after State’s notice.
Which constitutional provisions govern the different courts of appeal?
Fla. Supreme Court = Article V, Section 3
DCAs = Article V, Section 4
When can an appellate court review a moot order?
(i) issue of great public importance; (ii) issue likely to recur; or (iii) collateral consequences to the order.
Godwin v. State (Fla. 1992)
Which statute requires the Fl. SC to conduct a full record review in death sentence cases?
Section 921.141(4), Fla. Stat.
What are the rules for preparation of a record in criminal cases? And what’s the actual Rule?
Rule 9.140(f)(1).
Record must be prepared within 50 days. If transcript isn’t ready … 20 days after it is.
What rule compels an appellate court to transfer a case where the NoA is filed in the wrong court?
Rule 9.040(b)(1).
Where does one file an appeal for administrative action?
HQ of agency or where the party resides (unless otherwise provided by statute).
How many days does the State have to file a criminal appeal?
15 days. (Also 15 days for cross-appeal … 9.140(c)(1)(k). )
When can a defendant raise a sentencing error?
Only if the error was raised below (i) at the time of sentencing or (ii) by motion under Florida Rule of Crim. P. 3.800(b).
When can a criminal defendant’s counsel withdraw?
Rule 9.140(d).
Either the appeal window has closed or an appeal has been filed, statement of acts to be reviewed, directions to the clerk, designation to the court reporter.
What can the State appeal in a criminal case?
Rule 9.140(c).
Everything that basically ends a case, but must avoid double jeopardy if appeal successful.
Orders dismissing indictment/info/violation, orders suppressing confessions, new trial, arresting judgment, granting acquittal.
What’s the timing for a civil cross-appeal?
Rule 9.130.
15 days after initial notice or within the 30 days after the order to be appealed, whichever is later.
What’s the timing for briefing and procedures for a non-final appeal?
IB is due in 15 days with an appendix.
Is there an automatic stay for non-final appeals?
No. The only rule is that the trial court can’t enter an order that disposes of the case.
Can you move for rehearing on an order denying vacatur?
No (not authorized). Rule 9.130.
Motion for rehearing won’t toll so you have to appeal within 30 days.
Are orders disposing of motions for rehearing separately reviewable?
No. Rule 9.130.
What are the nonfinal orders that are immediately appealable? What Rule?
Rule 9.130(a)(3).
Venue.
Injunctions.
Determine (jurisdiction/immediate possession/family law stuff).
Entitlement to arbitration or appraisal.
No entitlement to worker’s comp immunity.
Certify class.
Issue of forum non conveniens.
Settlement agreement is unenforceable (as a matter of law).
Permanent guardianship for child.
Grant/Deny motion to DQ counsel.
Deny a motion that: (immunity in a civil rights claim, sovereign immunity)
What orders can be appealed by criminal defendant?
Rule 9.140. (b)(1).
(a) final judgment of guilt;
(b) withholding adjudication but finding guilty;
(c) order granting probation;
(d) anything after final judgment;
(e) unlawful sentence;
(f) a sentence.
What pleas can be appealed by a criminal defendant?
Rule 9.140.
A defendant may not appeal from a guilty plea or nolo contendere plea except…
(i) where they’ve made a reservation of the right to appeal.
(ii) a. lack of subject matter jurisdiction; b. violation of plea agreement, if motion filed; c. involuntary plea, if motion filed; d. a sentencing error.
What does your notice of appeal have to contain?
Rule 9.110.
Include date of rendition, nature of order, attach order.
If it’s tolling due to a motion, say it, and provide copy of order disposing motion within 10 days.
How much time does a clerk have to get the index/record going?
Rule 9.110.
50 days to send the index to the parties, 60 days to send the record.
Timing of briefs in a final appeal?
Rule 9.110.
70 days for IB, 30 days for AB/RB.
What’s the Rule for partial final judgments?
Rule 9.110(k).
What’s the original/direct jurisdiction of the DCAs?
Rule 9.030(b)(1).
(A) Final orders of trial courts.
(B) Nonfinal orders listed in Rule 9.130.
(C) Admin. Action provided by general law.
What’s certiorari jurisdiction of the DCAs?
Rule 9.030(b)(2).
(A) Nonfinal orders not listed in Rule 9.130.
(B) Final orders of circuit courts acting in review capacity.
What rule governs belated appeals in criminal proceedings?
Rule 9.141
How long does a Defendant have to belatedly petition for an appeal of a judgment/order? And on what grounds?
Two years after expiration of the time for filing a Notice of Appeal, unless specific facts demonstrate that the Defendant could not have known within those two years.
Never more than four years.
What must a Defendant allege in a petition for a belated appeal or belated discretionary review?
- Should be in the form of a petition in Rule 9.100 and filed in the same court.
- Must include specific facts that demonstrate why belated filing is taking place, including either (i) ineffective assistance of counsel or (ii) actions beyond petitioner’s control that prevented timely filing
- Can contain supporting documents
How does review of a final order dismissing petition for judicial waiver of parental notice to terminate pregnancy work?
Rule 9.147.
No briefs necessary unless requested by appellant or the court.
Court must issue opinion 7 days after the record is filed (record must be prepared within 2 days after NoA).
What is the timing of filing briefs in dependency cases, including extensions?
IB = 30, AB = 30, RB = 15.
Extensions of time are only given to preserve the constitutional right of a party or to serve the child’s best interests.
What rule governs dependency cases?
When must the state appeal? Child’s name?
Rule 9.145.
State must file NoA within 15 days of rendition of the order AND before commencement of the adjudicating hearing.
Child’s name must be in initials.
Probate appeals. What’s the rule chump?
Rules on the record and briefs?
Rule 9.170.
Parties have option to direct clerk to prepare a record or just use appendices.
IB due in 70 days.
Scope of appeal: any order related to order on appeal but not if it could be separately appealed.
Discretionary review of county court orders by DCA. What’s the rule and how does it work?
Rule 9.160. (Pass-through).
Certification by county court that issue is of great public importance.
924.08 Courts of appeal.—Appeals from final judgments in misdemeanor cases tried by county courts shall be to the circuit court.
Discretionary proceedings to review certified questions from federal court.
Rule 9.150
Only if the answer is determinative of the
cause and there is no controlling precedent of the Supreme Court of Florida.
Fla. Sc. Ct. has discretion to order record and briefs.
Worker’s compensation appeals. (Dear god). What’s the rule and what should you include in a NoA?
Bonus fact: when are benefits paid?
Rule 9.180.
NoA must include certification of the type of benefit at issue and the dates of employment it pertains to.
Benefits are to be paid 30 days after mandate issues with interest.
What’s the basis for appealing a probate order?
Rule 9.170(b)
Long list of appealable orders. “Orders that finally determine a right or obligation of an interested person” as defined by the Probate Code.
What court should you file a petition for a writ of prohibition in to prevent agency action?
Same court that you would appeal a final decision to.
What’s the full citation for Boca Burger?
Boca Burger, Inc. v. Forum (Fla. 2005)
When are briefs due in criminal cases.
Rule 9.140(g)(1).
Initial Briefs are due 30 days after transmittal of record or appointment of counsel (whichever is later).
What’s an Anders Brief?
Rule 9.140(g)(2).
Brief stating that appeal is frivolous. Court reviews the record on its own to determine the accuracy of that representation.
If it finds unpreserved sentencing error, it can strike brief and allow for a Rule 3.800(b)(2) motion.
(2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).
(A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(d). If the state is the movant, trial counsel will represent the defendant unless appellate counsel for the defendant notifies trial counsel and the trial court that he or she will represent the defendant on the state’s motion.
(B) The trial court shall resolve this motion in accordance with the procedures in subdivision (b)(1)(B), except that if the trial court does not file an order ruling on the motion within 60 days, the motion shall be deemed denied. Similarly, if the trial court does not file an order ruling on a timely motion for rehearing within 40 days from the date of the order of which rehearing is sought, the motion for rehearing shall be deemed denied.
(C) In accordance with Florida Rule of Appellate Procedure 9.140(f)(6), the clerk of circuit court shall supplement the appellate record with the motion, the order, any amended sentence, and, if designated, a transcript of any additional portion of the proceedings.
How to preserve error on the face of a judgment?
Must raise it in a post-final motion before being able to raise it on appeal.
e.g., lack of findings were made in order.
What are the procedures for preserving error in jury instructions?
Rule of Civil Procedure 1.470.
Must (i) objection at the charge conference and (ii) provide a specifically requested instruction in writing no later than the close of evidence.
Case citation for proposition of law that issue not raised in the trial court is waived on appeal?
Sunset Harbour Condo. Ass’n v. Robbins (Fla. 2005)
Case citation for proposition of law regarding invited error?
Goodwin v. State (Fla. 1999)
Procedure for objecting to inconsistent verdict? Inadequate verdict?
Must object to inconsistent verdict before the jury is discharged.
Can object to inadequate verdict in a post-trial motion (additur/remittitur).
What’s the standard for evaluating improper closing argument that was not contemporaneously objected to. Case cite?
Murphy v. Int’l Robotic Systems (Fla. 2000)
Argument must be made in:
(i) a motion for new trial, and argue that comments were (2) improper, (3) harmful, (4) incurable, and (5) such that they damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.
How do you preserve an issue of jury selection? Case cite?
You must object initially to the jury issue and then renew that objection before the jury is sworn in.
Melbourne v. State (Fla. 1996)
What are the three (3) essential features to an effective objection in the trial court?
(1) must be timely (“contemporaneous objection rule”) enough to allow the trial court to remedy the error;
(2) must be based on a specific legal ground;
(3) supporting argument must be the same as the one made on appeal.
Aills v. Boemi (Fla. 2010)
How do you preserve orders on motions in limine?
- Must receive a definitive ruling by the trial court. Even with a definitive ruling, you have to object/ask for curative/move for mistrial if the other side violates the ruling.
- If no definitive ruling, must object throughout trial.
Which Florida Rule fixes issues with venue and improper remdy?
Fla. R. App. P. 9.040.
A court won’t fix the remedy if it deprives the court of jurisdiction. For instance, if you file a petition for a writ of prohibition on day 32 but it should have been certiorari, the remedy can’t be fixed because the jurisdictional deadline was blown.
What happens when a petition for indigent status is denied?
A clerk, not a judge, must give reasons for denying an application for determination of indigent status. Then, the judge reviews the clerk’s reasons.
A motion for review can be filed in the appellate court; not a separate appeal.
Rule 9.430.
Procedure for invoking jurisdiction of the Florida Supreme Court?
You must file your notice invoking jurisdiction within 30 days of the opinion/order you want to appeal.
Unless, you’re going up on pass-through jurisdiction. Then, once the DCA certifies the appeal, that certification is self-executing.
Where do you file your notice of appeal in administrative appeals?
With the agency AND the appellate court.
How are attorney’s fees in administrative law proceedings handled by the appellate court?
The appellate court can remand the matter to the lower tribunal, or to an administrative law judge, or to a special master, to fix the amount.
Reconstruction of the record. How does that work?
Rule 9.200(a) and Rule 9.200(b)(5) allow for stipulated statements of the record and stipulated statements for transcripts, respectively.
Under (b)(5), other parties may object or offer amendments within 15 days. Then, the statement is filed with the lower tribunal for settlement and approval.
How does the record work in administrative appeals?
Rule 9.190.
Immediate final orders require full record to be included in appendix.
Nonfinal, non-APA appeals use appendices.
Review proceedings in collateral or postconviction criminal cases where the order is denied without an evidentiary hearing.
The record includes the motion+responses+rehearings.
Initial Brief is optional, but it is due in 30 days if party elects to file. Answer Brief also optional, unless directed by the court.
Record must “conclusively show” no entitlement to relief.
What rule says: “No proceeding shall be determined because of an incomplete record until an opportunity to supplement the record is given”?
Rule 9.200(f)(2)
Which are the petitions that have jurisdictional time limits for filing?
(1) petition for writ of certiorari
(2) petition to review quasi-judicial action of agencies/commissions/etc.
(3) nonfinal actions under the APA
(4) challenging an order of the Department of Corrections in prisoner disciplinary proceedings.
Which is the “Record” rule that defines what a record is?
Rule 9.200(a)(1): “all documents filed in lower tribunal”
When are record designations due?
Rule 9.200(a)(2).
Appellant’s record designations are due 10 days after the NoA. Appellee’s cross-designations are due 20 days after NoA.
