Florida Criminal Appeal Rules

Question 1

What is the proper method for preserving for review an argument that the evidence is insufficient to support a conviction for the charged offense?

Answer 1

Must make an oral motion for a judgment of acquittal at the conclusion of the state’s case.

(No need to renew at the close of all evidence).

Question 2

Which Florida Rule of Crim. Procedure allows a defendant to seek correction of a sentencing error?

Answer 2

Fla. R. Crim. P. 3.800(b)

Question 3

When can a party correct a sentencing error under Fla. R. Crim. P. 3.800(b)?

Answer 3

Any time before service of the party’s first brief in the appellate court or, if no appeal, within the time for taking an appeal.

Question 4

Does a motion to correct sentencing error under Fla. R. Crim. P. 3.800(b) toll rendition of sentence/probation order?

Answer 4

Yes.

Question 5

How have courts defined fundamental error in criminal cases?

Answer 5

An error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” (Morris v. State, (Fla. 2018)).

Question 6

What are some examples of fundamental error in criminal cases?

Answer 6

(i) jurisdiction of the trial court;
(ii) facial validity of a statute that is the subject of the charge (but not the constitutionality of the statute as applied to the facts);
(iii) double jeapordy;
(iv) evidence that no crime was committed at all.

Question 7

What’s the harmless error standard in criminal cases? What’s the leading case?

Answer 7

The test “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”

State v. DiGuilio (Fla. 1986)

Question 8

What are the two prongs for demonstrating prejudicial error in criminal cases?

Answer 8

(i) Must show that an error occurred and that it was preserved for review;
(ii) Must apply the DiGuilo standard to determine whether the error was harmless.

Question 9

Which statute previously conferred jurisdiction onto the circuit courts to hear appeals from misdemeanor cases?

Answer 9

Section 924.08 (it’s gone!)

Question 10

Which case governs review over the use of preemptory strikes in jury trials?

Answer 10

Melbourne v. State (Fla. 1996)

Question 11

Circumstantial evidence test? How’s it reviewed on appeal?

Answer 11

Test: a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.

Review: competent, substantial evidence.

Question 12

What’s the standard of review for a sentence that departs from the sentencing guidelines?

Answer 12

Did it apply the correct rule of law and is the evidence sufficient to support the decision.

(Whether a sentencing factor is permissible is a question of law and reviewed de novo).

Question 13

What happens if the defendant absconds from the State while their appeal is pending?

Answer 13

The appellate court has authority to dismiss the appeal.

If the defendant leaves before invoking the appellate court’s jurisdiction, they can still appeal.

Question 14

Do indigent defendants have a right to self-representation on appeal?

Answer 14

No. But the Court could allow them to proceed without counsel.

Question 15

Defendant can take what type of action to obtain a judgment quickly and take a dispositive issue up for review?

Answer 15

Enter a nolo contendere plea (with express reservation for appeal and agreement that issue is dispositive).

Question 16

Can a defendant cross-appeal one of the State’s interlocutory appeals?

Answer 16

Yes, they would essentially be piggybacking off of the State’s jurisdiction.

Question 17

What is the most common example of a successful use of a petition for certiorari for criminal defendants?

Answer 17

Order disqualifying the defendant’s attorney.

Question 18

Discuss the distinction between the types of orders that are appealable by defendants and the State?

Answer 18

Defendants are not entitled to appeal any pretrial order in a criminal case; whereas, the State is usually unable to appeal any posttrial orders in a criminal case without risking double jeopardy.

Question 19

What’s the definition of an illegal sentence?

Answer 19

A sentence that “imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of actual circumstances.”

Question 20

What are the 3 exceptions to review an unpreserved sentencing error on appeal?

Answer 20

(i) sentencing statute is facially unconstitutional;
(ii) fundamental error in the sentencing;
(iii) death sentence cases.

Question 21

When is an order modifying probation or community control appealable?

Answer 21

When the order grants a request for modification; an order that denies a request is not appealable.

Question 22

Discuss how postconviction appeals operate when a trial court either grants or denies an evidentiary hearing.

Answer 22

If summarily denied, defendant appeals and record is immediately transmitted to appellate court. Defendant has option to submit brief within 30 days. The State is not required to respond unless ordered.

If summarily denied with record attachments that disprove allegations, same procedure as above.

If denied with an evidentiary hearing, then normal appellate rules apply, provided that defendant must file IB within 30 days of record.

Question 23

Can a defendant collaterally attack a conviction in a postconviction motion?

Answer 23

No, unless there was fundamental error or a significant change in the law.

Question 24

What is the effect of a guilty plea on a defendant’s appeal?

Answer 24

Defendant waives right to appeal except as to dispositive issues expressly reserved for review and a narrow range of issues relating to the validity of the plea and sentence.

The second class has five examples:

(i) trial court lacked subject matter jurisdiction;
(ii) violation of the plea agreement (if preserved);
(iii) involuntary plea (if preserved);
(iv) sentencing error (ditto);
(v) otherwise provided by law.

Question 25

What are examples of issues that can be reserved for review through entering into a nolo contendere plea?

Answer 25

(i) issues raised in motions to dismiss;
(ii) orders on pretrial motions to suppress evidence;
(iii) other orders that the State agrees are dispositive.

Question 26

Who does the defendant service his notice of appeal on?

Answer 26

Attorney general and state attorney handling trial court case.

Question 27

What’s the timing for a defendant to file their NoA?

Answer 27

After rendition of final judgment and within 30 days of rendition of the order imposing sentence.

Question 28

What are the tolling motions that apply to criminal cases?

Answer 28

Rule 9.020(h):

(F) motion for arrest of judgment;

(G) motion to challenge the verdict;

(H) motion to correct a sentence or order of probation pursuant to Florida Rule of Criminal Procedure 3.800(b);

(I) motion to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l);

(J) to correct a disposition or commitment order pursuant to Florida Rule of Juvenile Procedure 8.135(b)

Question 29

When can counsel for the defendant withdraw from the case in the trial court?

Answer 29

Rule 9.140 states:

(i) upon good cause if no appeal has been taken and after the time for filing has passed;
(ii) after filing notice of appeal, designating record/transcript, and statement of judicial acts (if necessary)

Question 30

A petition for belated appeal or discretionary review must contain what?

Answer 30

Rule 9.141.

Identify (under oath) facts that either a request was made of counsel to appeal and they didn’t, or whether counsel failed to advise petitioner of the availability of appellate review.

Or, other circumstances that interfered with timely filing the appeal.

You don’t need to show that your appeal has merit.

Question 31

When can a petition for belated appeal or discretionary review be filed?

Answer 31

Within 2 years of the expiration of the time for filing the appeal; between 2-4 years if the facts alleged demonstrate why the extra time; never more than 4.

Question 32

What must a petition alleging ineffective assistance of counsel state?

Answer 32

Rule 9.141.

(a) date and nature of order subject to appeal;
(b) name of lower tribunal;
(c) nature/disposition/dates of all court proceedings;
(d) reason why the claim wasn’t filed in any previous petition;
(e) nature of relief sought;
(f) facts that constitute ineffective assistance of counsel.

Question 33

Under what circumstances can a defendant file a motion for posttrial release (release during appeal)?

Answer 33

First, the offense must be included within the class of offenses for which bail is permitted.

Second, defendant must file motion in trial court and state: (i) appeal was taken in good faith; (ii) appeal’s not frivolous; (iii) issues are fairly debatable.

Then, trial court exercises its discretion based on typical bail considerations.

Defendant can’t be released until notice of appeal is actually filed.

If denied, file motion with appellate court.

Question 34

When must the record be transmitted in a final criminal appeal?

Answer 34

50 days from filing of notice of appeal. If transcript is not ready, then the clerk has 20 more days.

Question 35

When must the defendant’s IB be served?

Answer 35

30 days from transmission of the record, or designation of appointed counsel, whichever is later.

Question 36

What is an Anders brief?

Answer 36

Brief by defendant’s attorney that states that they made a conscientious search of the record and point out all of the facts in the record that could arguable support the defendant’s position.

Appellate court conducts its own review after the brief.

Question 37

What does the State have to show when it files a petition for certiorari to review a nonfinal order?

Answer 37

No adequate remedy by appeal and that the order constitutes a departure from the essential requirements of law.

Must show that the ruling impairs the State’s ability to present its case.

(Tons of orders are reviewable since a final appeal is unlikely for the State).

Question 38

Can the State appeal a dismissal of an indictment/information even if it’s without prejudice to refile?

Answer 38

Yes. Words of finality are also not required.

Question 39

What is the dividing line between an appealable order granting a judgment of acquittal and an unappealable order granting a judgment of acquittal for the State?

Answer 39

The verdict. To be appealable, the judgment must have been entered after the verdict (reversal would lead to reinstatement of guilty verdict).

Question 40

What’s the time for the State to file an appeal?

Answer 40

15 days after rendition of the order to be reviewed.

Question 41

Appeals from what types of orders provide the State with an automatic stay pending appeal?

Answer 41

(i) order granting a new trial;

(ii) order suppressing evidence or a confession.

Question 42

How does the record work in nonfinal appeals?

Answer 42

The record works like a normal appeal. Parties do not use an appendix.

Question 43

If the State stipulates to the dispositiveness of an issue while the defendant pleads nolo contendere, is the appellate court bound by it?

Answer 43

Yes, provided that the defendant argues that exact issue on appeal.

Question 44

Does a sentence that imposes less than the minimum punishment constitute a legal sentence?

Answer 44

No. Can be appealed by State.

Question 45

Does a trial court have concurrent jurisdiction to consider a second postconviction motion while an appeal is still pending as to a prior one?

Answer 45

Yes, so long they relate to different issues.

Question 46

Does a sentence that resolves less than the full amount of criminal counts brought against the defendant become appealable immediately or after resolution of all the counts?

Answer 46

Immediately.

Question 47

How does the mailbox rule work in criminal appeals?

Answer 47

A legal document is presumed timely by a pro se litigant if it was placed in the hands of an of a prison official for mailing on a specific date.

Question 48

Is an appeal mooted if the defendant dies during the pendency of the appeal?

Answer 48

It depends if there are any remaining prejudicial collateral consequences.

Question 49

How does correcting a sentencing error work when an appeal is already pending?

Answer 49

Motion to correct under Rule 3.800 must be served prior the filing of the first brief and notice to the appellate court must be provided that motion was filed.

The notice tolls the time for filing the brief until 10 days after the circuit court clerk transmits the supplemental
record.