State Appeals

Question 1

What can be appealed in state court

Answer 1

A final order - an order ending the case/issue, leaving the trial court with nothing else to decide as to the case/issue

Question 2

What are the most common final orders?

Answer 2

1. an order revoking probation
2. an order adjudicating guilt (or withholding it)
3. an illegal sentence
4. an order suppressing evidence (state appeal)

Question 3

What is the process for preserving a defendant’s right to appeal a denial of a motion to suppress where the defendant takes a plea?

Answer 3

1. state on the record the specific legal issue
2. specifically reserve the right to appeal
3. identify the issue as dispositive
   (2 and 3 require the court’s assent)

Question 4

What may a defendant appeal after taking a plea?

Answer 4

1. an involuntary plea
2. sentencing errors
3. a challenge to the court’s subject-matter jurisdiction
4. a violation of a plea agreement

Question 5

How long does a defendant have to file a cross-appeal?

Answer 5

10 days

Question 6

Under what circumstances may a defendant cross-appeal?

Answer 6

Upon a showing that the cross-appeal is related to the issue being appealed

Question 7

What is the predicate requirement for a defendant to raise an illegal sentence on appeal?

Answer 7

Bring it to the trial court’s attention at the sentencing or by a motion pursuant to 3.800(b)

Question 8

When does the Florida Supreme Court have jurisdiction to hear criminal appeals

Answer 8

1. orders imposing the death penalty
2. orders from trial courts declaring statutes or constitutional provisions invalid
3. Decisions that expressly conflict with another DCA
4. Decisions that expressly construe the state or federal constitution
5. questions of great public importance
6. to review questions of law that have no precedent

Question 9

When must a defendant file a notice to appeal?

Answer 9

Within 30 days of the rendition of the final order

Question 10

When does the time limit for filing a notice of appeal begin?

Answer 10

The day after the rendition of the final order

Question 11

How does a defendant cross-appeal?

Answer 11

By serving state with notice within 10 days of service of the state’s notice

Question 12

When may defense counsel withdraw after a judgement and sentence has been rendered?

Answer 12

1. The filing of a notice of appeal along with a statement of judicial acts to be reviewed and directions to the clerk OR
2. Substitute counsel has been obtained or appointed, or notice that defendant has gone pro se OR
3. the time has expired for filing of a notice of appeal, and no notice has been filed.

Question 13

What issues may be decided by the trial court after a final order has been rendered, but before the notice of appeal?

Answer 13

1. Motion for new trial
2. Motion for rehearing
3. Motion for certification
4. Motion to alter/amend judgement pursuant to mtn for directed verdict
5. Motion for arrest of judgement
6. Motion to correct sentence/probation order
   Motion to withdraw plea

Question 14

What motions are not effected by a notice of appeal?

Answer 14

1. motion to withdraw plea

2. motion to correct sentence

Question 15

When and under what circumstances may a defendant file a petition for belated appeal?

Answer 15

Within 2 years from the expiration of time for filing a notice of appeal or within 4 years from the expiration of the time for filing a notice of appeal if:
-def didn’t know appeal hadn’t been filed
-def wasn’t advised of right to appeal
-circumstances beyond defendant’s control prevented timely appeal
(same rules apply for a petition for discretionary review)

Question 16

When must the state file a notice of appeal?

Answer 16

Within 15 days of the rendition of the final order

Question 17

When must state file cross-appeal?

Answer 17

Within 10 days of service of the defendant’s notice of appeal

Question 18

What issues may the state appeal?

Answer 18

Order dismissing information
Order suppressing evidence
Order granting new trial
Order arresting judgment
Order granting JOA after verdict
Order discharging defendant under 3.191
Order discharging prisoner on habeas corpus
Order declaring defendant incompetent or insane
Order finding defendant mentally retarded
Order granting relief for postconviction DNA testing (order granting relief under rules 3.801, 3,850, 3.851, 3.853)
Orders ruling on a question of law if the defendant appeals conviction
Order granting a w/h illegally
Order imposing sentence outside of guidelines
Order denying restitution
Other final orders as provided by law

Question 19

When may the state file a motion for rehearing?

Answer 19

Within 10 days of the final order subject to appellate review

Question 20

What are the requirements for the state when filing a motion for rehearing?

Answer 20

1. State w/ particularity law or facts overlooked or misapprehended by court in its decision
2. Cannot re-raise issues

Question 21

When may the defendant respond to the state’s motion for rehearing?

Answer 21

Within 10 days of service of the state’s motion for rehearing

Question 22

When must the trial court file an order ruling on the state’s motion for rehearing?

Answer 22

Within 15 days of the defendant’s response, but not later than 40 days from the order from which a rehearing is sought

Question 23

When may the defendant file directions to the clerk?

Answer 23

Within 10 days of the notice of appeal

Question 24

What does it mean to file “directions to the clerk”?

Answer 24

Telling the clerk to include or exclude documents or exhibits in lower tribunal’s court file

Question 25

How long does the clerk of the lower court have to serve the record on appeal?

Answer 25

50 days from the notice of appeal; court may extend

Question 26

If the record on appeal has already been served on the appellate court, may the defendant file additional documents?

Answer 26

Yes, if the defendant files and the court grants a motion to supplement the record

Question 27

What is the process for reconstructing the record of the record is lost?

Answer 27

1. a party prepares a statement of the proceedings from the best available methods including the party’s recollection
2. the reconstructed statement is served on the other parties
3. the other parties have the opportunity to object or supplement the statement
4. the trial court rules on and approves the reconstructed statement

Question 28

When must an initial brief be filed?

Answer 28

Within 70 days of the notice of appeal

Question 29

When may a defendant request an oral argument?

Answer 29

Within 10 days after the due date of the last brief

Question 30

When must an answer brief be served?

Answer 30

Within 20 days of the initial brief

Question 31

When must the reply brief be served?

Answer 31

Within 20 days of the answer brief

Question 32

What is the page limit for an initial brief?

Answer 32

50 pages

Question 33

What is the page limit for an answer brief?

Answer 33

50 pages

Question 34

What is the page limit for an answer brief?

Answer 34

15 pages

Question 35

What are the components of an initial brief and a reply brief?

Answer 35

1. Table of contents
2. Table of citations
3. Statement of case (facts)
4. Summary of the argument (no more than 5 pages)
5. Argument
6. Conclusion
7. Certificate of service
8. Certificate of font compliance

A reply brief has the same requirements except the statement of facts

Question 36

What must a defendant show to obtain supersedeas bond?

Answer 36

the appeal is taken in good faith on grounds fairly debatable and the appeal is not frivolous.

Question 37

What happens to the custody status of an incarcerated defendant after trial when the state takes an appeal?

Answer 37

The defendant is ROR’d!

Question 38

What is the time limit for oral argument?

Answer 38

20 minutes to each side; 30 minutes on a capital case

Question 39

Under what grounds may a defendant file a writ of prohibition?

Answer 39

Speedy trial
Double jeopardy 
Statute of limitations 
Recusal/disqualification 
SYG immunity

Question 40

What are the extraordinary writs that may be taken before the conclusion of a case?

Answer 40

Prohibition
Mandamus
Habeas Corpus
Certiorari

Question 41

When is the defendant prohibited from filing a writ of certiorari?

Answer 41

When there is an adequate remedy on appeal

Question 42

When may the state file a writ of certiorari?

Answer 42

When the court departed from the essential requirements of the law

Question 43

When may a writ of certiorari be filed?

Answer 43

Within 30 days of the final order

Question 44

When will the appellate court disturb a trial court’s findings of fact?

Answer 44

Only when the trial court’s findings of fact are “clearly erroneous”

Question 45

What is the standard of review for mixed questions of law and fact?

Answer 45

Abuse of discretion

Question 46

What is the standard of review for pure legal issues?

Answer 46

De novo, giving the trial court the least deference

Question 47

When must the trial court order the state to respond to a rule 3.850 motion?

Answer 47

When the record does not conclusively refute the defendant’s claim

Question 48

What post-decision motions may be filed after an appeal?

Answer 48

Motion for rehearing
Motion for certification
Motion for clarification
Motion for written opinion

Question 49

What is the effect of a mandate?

Answer 49

The appeal is ended and the case is returned to the trial court