Version: Appellate Court Rules Committee
Florida Rules of Appellate Procedure
FLORIDA RULES OF APPELLATE PROCEDURE
FLORIDA RULES OF APPELLATE PROCEDURE
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
RULE 9.010. EFFECTIVE DATE; SCOPE; APPLICABILITY OF
FLORIDA RULES OF GENERAL PRACTICE AND
JUDICIAL ADMINISTRATION
RULE 9.020. DEFINITIONS
RULE 9.030. JURISDICTION OF COURTS
RULE 9.040. GENERAL PROVISIONS
RULE 9.045. FORM OF DOCUMENTS
RULE 9.050. MAINTAINING PRIVACY OF PERSONAL DATA
RULE 9.100. ORIGINAL PROCEEDINGS
RULE 9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS
OF LOWER TRIBUNALS AND ORDERS GRANTING
NEW TRIAL IN JURY AND NONJURY CASES
RULE 9.120. DISCRETIONARY PROCEEDINGS TO REVIEW
DECISIONS OF DISTRICT COURTS OF APPEAL
RULE 9.125. REVIEW OF TRIAL COURT ORDERS AND
JUDGMENTS CERTIFIED BY THE DISTRICT COURTS
OF APPEAL AS REQUIRING IMMEDIATE
RESOLUTION BY THE SUPREME COURT OF
FLORIDA
RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS AND
SPECIFIED FINAL ORDERS
RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES
RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL OR
POSTCONVICTION CRIMINAL CASES
RULE 9.142. PROCEDURE FOR REVIEW IN DEATH PENALTY
CASES
RULE 9.143. CRIME VICTIMS
RULE 9.145. APPEAL PROCEEDINGS IN JUVENILE DELINQUENCY
CASES
RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY
AND TERMINATION OF PARENTAL RIGHTS CASES
AND CASES INVOLVING FAMILIES AND CHILDREN
IN NEED OF SERVICES
RULE 9.147. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS
DISMISSING PETITIONS FOR JUDICIAL WAIVER OF
PARENTAL NOTICE AND CONSENT OR CONSENT
ONLY TO TERMINATION OF PREGNANCY
RULE 9.148. APPEAL PROCEEDINGS TO REVIEW ORDERS UNDER
FLORIDA MENTAL HEALTH/BAKER ACT
RULE 9.150. DISCRETIONARY PROCEEDINGS TO REVIEW
CERTIFIED QUESTIONS FROM FEDERAL COURTS
RULE 9.160. DISCRETIONARY PROCEEDINGS TO REVIEW
DECISIONS OF COUNTY COURTS
RULE 9.170. APPEAL PROCEEDINGS IN PROBATE AND
GUARDIANSHIP CASES
RULE 9.180. APPEAL PROCEEDINGS TO REVIEW WORKERS’
COMPENSATION CASES
RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION. 153
RULE 9.200. THE RECORD
RULE 9.210. BRIEFS
RULE 9.220. APPENDIX
RULE 9.225. NOTICE OF SUPPLEMENTAL AUTHORITY
RULE 9.300. MOTIONS
RULE 9.310. STAY PENDING REVIEW
RULE 9.315. SUMMARY DISPOSITION
RULE 9.320. ORAL ARGUMENT
RULE 9.330. REHEARING; CLARIFICATION; CERTIFICATION;
WRITTEN OPINION
RULE 9.331. DETERMINATION OF CAUSES IN A DISTRICT COURT
OF APPEAL EN BANC
RULE 9.340. MANDATE
RULE 9.350. DISMISSAL OF CAUSES
RULE 9.360. PARTIES
RULE 9.370. AMICUS CURIAE
RULE 9.380. NOTICE OF RELATED CASE OR ISSUE
RULE 9.400. COSTS AND ATTORNEYS’ FEES
RULE 9.410. SANCTIONS
RULE 9.420. FILING; SERVICE; COMPUTATION OF TIME
RULE 9.425. CONSTITUTIONAL CHALLENGE TO STATE STATUTE
OR STATE CONSTITUTIONAL PROVISION
RULE 9.430. PROCEEDINGS BY INDIGENTS
RULE 9.440. ATTORNEYS
RULE 9.500. ADVISORY OPINIONS TO GOVERNOR
RULE 9.510. ADVISORY OPINIONS TO ATTORNEY GENERAL
RULE 9.600. JURISDICTION OF LOWER TRIBUNAL PENDING
REVIEW
RULE 9.700. MEDIATION RULES
RULE 9.710. ELIGIBILITY FOR MEDIATION
RULE 9.720. MEDIATION PROCEDURES
RULE 9.730. APPOINTMENT AND COMPENSATION OF THE
MEDIATOR
RULE 9.740. COMPLETION OF MEDIATION
RULE 9.800. UNIFORM CITATION SYSTEM
RULE 9.900. FORMS
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
1962 REVISION, Effective 10-1-62: 142 So. 2d 724
OTHER OPINIONS
Eff. Date Citation Description
3-1-78: 351 So.2d 981. Complete revision.
1-1-80: 374 So.2d 992. Adopted 9.331.
1-1-80: 376 So.2d 844. Added 9.140(b)(3).
1-1-80: 377 So.2d 700. Amended 9.331.
4-1-80: 381 So.2d 1370. Amended 9.030–9.150, 9.220.
1-1-81: 387 So.2d 920. Four-year-cycle revision. Amended 9.100,
9.200, 9.300, 9.420, 9.600.
1-1-81: 391 So.2d 203. Amended 9.030, 9.100–9.130, 9.200, 9.210,
9.900; ordered publication of 1980 committee
notes.
10-1-82: 416 So.2d 1127. Amended 9.331.
12-15-83: 443 So.2d 972. Added 9.140(c)(1)(J).
10-1-84: 463 So.2d 1114.* Amended 9.030, 9.160, and 9.165.
1-1-85: 463 So.2d 1114.* Amended and adopted numerous rules.
3-1-85: 463 So.2d 1124. Deleted 9.165; replaced 9.030(b)(4), 9.160.
3-19-87: 505 So.2d 1087. Amended 9.420(e).
7-1-87: 509 So.2d 276. Adopted 9.315; amended 9.140(c)(1)(J),
9.200, 9.600, 9.900(g).
1-1-89: 529 So.2d 687. Amended numerous rules.
1-1-89: 536 So.2d 240. Clarified 529 So.2d 687.
7-9-92: 605 So.2d 850. Amended 9.130(a)(3).
1-1-93: 609 So.2d 516. Four-year-cycle revision. Numerous
amendments.
12-5-94: 646 So.2d 730. Amended 9.331.
6-15-95: 657 So.2d 897. Amended 9.600.
10-12-95: 661 So.2d 815. Amended 9.800(n).
1-1-96: 663 So.2d 1314. Amended 9.130(a).
7-1-96: 675 So.2d 1374. Amended 9.020(g).
8-29-96: 678 So.2d 315. Added court commentary to 9.140.
1-1-97: 685 So.2d 773. Four-year-cycle revision. Numerous
amendments.
7-1-99: 756 So.2d 27. Amended 9.110(l).
11-12-99: 761 So.2d 1015. Amended 9.020(h), 9.140, 9.600.
1-1-00: 760 So.2d 74. Amended 9.100(g), (j)–(k).
1-1-01: 780 So.2d 834. Four-year-cycle revisions. Numerous
amendments.
Eff. Date Citation Description
10-18-01: 807 So.2d 633. Amended 9.140 and 9.141.
1-1-03: 827 So.2d 888. Two-year-cycle revisions. Numerous
amendments.
1-1-03: 837 So.2d 911 Amended 9.140; adopted 9.142.
10-23-03: 858 So.2d 1013. Amended 9.110.
1-1-04: 860 So.2d 394. Amended 9.360(b).
10-1-04: 875 So.2d 563. Amended 9.140.
10-1-04: 887 So.2d 1090. Amended 9.190, 9.200.
2-3-05: 894 So.2d 202. Two-year-cycle revisions. Numerous
amendments.
4-7-05: 901 So.2d 109. Amended 9.140(c)(1).
1-19-06: 919 So.2d 431. Amended 9.160, 9.420(d).
7-6-06: 934 So.2d 438 Amended 9.110, 9.900.
11-9-06: 942 So.2d 406. Adopted 9.510.
1-1-07: 941 So.2d 352. Amended 9.120, 9.140, 9.146, 9.180, 9.200,
9.210, 9.300, 9.370.
11-15-07: 969 So.2d 357. Amended 9.141, 9.142.
1-1-08: 967 So.2d 194. Amended 9.300.
9-25-08: 992 So.2d 233. Amended 9.141(c).
12-30-08: 1 So.3d 163. Amended 9.142.
1-1-09: 2 So.3d 89. Three-year cycle revisions. Numerous
amendments.
1-29-09: 1 So.3d 166. Amended 9.110(b), (g), 9.360.
1-29-09: 1 So.3d 168. Amended 9.141(c).
7-16-09: 13 So.3d 1044. Amended 9.140, 9.200, 9.900(h).
10-15-09: 20 So.3d 380. Amended 9.142, 9.200.
11-12-09 24 So.3d 47. Amended 9.146, 9.340, 9430.
3-18-10: 31 So.3d 756. Amended 9.040(i), 9.100(d), 9.110.
7-1-10: 41 So.3d 161. Adopted 9.700, 9.710, 9.730, 9.740.
12-1-10: 41 So.3d 885. Amended 9.300, 9.400, 9.410.
7-1-11: 72 So.3d 735. Amended 9.141, 9.142.
10-1-11: 80 So.3d 317. Adopted 9.050.
1-1-12: 84 So.3d 192. Three-year cycle revisions. Numerous
amendments.
3-1-12: 84 So.3d 224. Amended 9.110(n).
6-14-12: 93 So.3d 325. Amended 9.200.
9-1-12: 102 So.3d 505. Amended 9.420.
10-1-12: 95 So.3d 96. Amended 9.420.
Eff. Date Citation Description
2-27-13 for 102 So.3d 451. Amended 9.020, 9.110, 9.120, 9.125, 9.130,
Supreme 9.140, 9.141, 9.142, 9.145, 9.146, 9.160,
Court of 9.180, 9.200, 9.210, 9.220, 9.360, 9.500,
Florida and 9.510, 9.900.
7-22-13–12-
27-13 for
District Courts
of Appeal:
7-01-13: 123 So.3d 734. Amended 9.140, 9.141.
9-26-13: 123 So.3d 53. Amended 9.140.
1-1-14: 125 So.3d 743. Amended 9.340.
2-20-14: 133 So.3d 927. Clarified 9.110
1-1-15: 148 So.3d 1171. Amended 9.142.
1-1-15: 183 So.3d 245. Amended 9.020, 9.100, 9.110, 9.130, 9.140,
9.141, 9.142, 9.145, 9.146, 9.160, 9.180,
9.190, 9.210, 9.300, 9.320, 9.330, 9.331,
9.340, 9.350, 9.400, 9.410, 9.420, 9.430,
9.600, 9.720, 9.800, 9.900. Adopted 9.147.
1-1-15: 151 So.3d 1217. Amended 9.130.
3-12-15: 160 So.3d 62. Amended 9.210.
8-27-15: 173 So.3d 951. Amended 9.210.
10-1-15: 173 So.3d 953. Amended 9.210.
10-8-15: 176 So.3d 980. Amended 9.140.
1-5-16: 177 So.3d 1254. Amended 9.200 and 9.210.
7-1-16: 194 So.3d 309. Amended 9.140.
7-1-16: 204 So.3d 13. Amended 9.140.
9-29-16: 200 So.3d 1221. Amended 9.141.
3-23-17: 213 So.3d 803. Amended 9.146.
10-1-17: 225 So.3d 223. Amended 9.020, 9.120, 9.141, 9.160, 9.180,
9.220, and 9.220.
1-1-19: 256 So.3d 1218. Amended 9.010, 9.020, 9.030, 9.040, 9.100,
9.110, 9.120, 9.125, 9.130, 9.140, 9.141,
9.142, 9.145, 9.146, 9.150, 9.160, 9.170,
9.180, 9.190, 9.200, 9.210, 9.225, 9.310,
9.330, 9.331, 9.350, 9.360, 9.370, 9.400,
9.410, 9.420, 9.430, 9.500, 9.510, 9.700,
9.710, 9.720, 9.900. Adopted 9.380
1-1-19: 257 So.3d 91. Amended 9.800.
1-1-19: 257 So.3d 66. Amended 9.100, 9.110, 9.120, 9.125, 9.130,
9.140, 9.141, 9.142, 9.146, 9.180, 9.200,
9.210, 9.300, 9.320, 9.330, 9.331, 9.350,
9.360, 9.410.
1-1-19: 258 So.3d 1245. Amended 9.146 and 9.210.
1-1-20: 285 So.3d 1246. Amended 9.030.
Eff. Date Citation Description
1-23-20: 289 So.3d 866. Amended 9.130.
3-31-20: 284 So.3d 967. Amended 9.120 and 9.210.
4-1-20: 288 So.3d 1187. Amended 9.130 and 9.200.
7-2-20: 302 So.3d 746. Amended 9.900(f).
1-1-21: 345 So.3d 30. Amended 9.020, 9.030, 9.040, 9.110, 9.130,
9.140, 9.145, 9.146, 9.170, 9.180, 9.200,
9.300, 9.310, 9.320, 9.330, 9.350, 9.360,
9.425, 9.430, 9.440, 9.800, and 9.900.
1-1-21: 307 So.3d 626. Amended 9.120 and 9.210.
1-1-21: 304 So.3d 755. Amended 9.030, 9.140, 9.141, and 9.160.
1-14-21: 310 So.3d 19. Amended 9.142(a).
3-4-21: 313 So.3d 63. Amended 9.147, 9.300, and 9.900(f).
4-8-21: 318 So.3d 1240. Amended 9.410, and 9.420,
10-1-21: 327 So.3d 1200. Amended 9.020.
10-28-21: 344 So.3d 940. Amended 9.010, 9.020, 9.040, 9.045, 9.050,
9.100, 9.140, 9.146, 9.200, 9.420, 9.440,
9.800, and 9.900.
1-6-22: 335 So.3d 86. Adopted 9.143.
4-1-22: 345 So.3d 725. Amended 9.130.
5-5-22: 351 So.3d 574. Amended 9.142.
7-1-22: 345 So.3d 842. Amended 9.141(c).
10-1-22: 346 So.3d 1105. Amended 9.320, 9.700, 9.720, 9.740.
7-1-23: 361 So.3d 246. Amended 9.140, 9.141, 9.142, 9.145, 9.146,
9.310.
7-1-23: 361 So.3d 237. Amended 9.190, 9.400, 9.440.
7-6-23: 367 So.3d 1204. Amended 9.130.
12-14-23: 376 So.3d 2. Amended 9.130.
1-1-24: 369 So.3d 203. Amended 9.030, 9.040, 9.100, 9.110, 9.120,
9.130, 9.160, 9.170, 9.360, 9.430.
1-1-24: 371 So.3d 328. Adopted 9.148, amended 9.210.
1-1-24: 372 So.3d 591. Amended 9.020, 9.147, 9.180, 9.200, 9.320,
9.420, 9.800, 9.900.
1-1-24: 49 FLW S4. Amended 9.020 and 9.400.
NOTE TO USERS: Rules on this webpage are current through 49 Fla. L. Weekly
S4. Subsequent amendments, if any, can be found at
https://www.floridasupremecourt.org/Opinions/Amendments-to-Approved-
Rules
RULE 9.010 cases. EFFECTIVE DATE; SCOPE; APPLICABILITY OF
FLORIDA RULES OF GENERAL PRACTICE AND
JUDICIAL ADMINISTRATION
These rules, cited as “Florida Rules of Appellate Procedure,”
and abbreviated “Fla. R. App. P.,” shall take effect at 12:01 a.m. on
March 1, 1978. They shall govern all proceedings commenced on or
after that date in the supreme court, the district courts of appeal,
and the circuit courts in the exercise of the jurisdiction described
by rule 9.030(c); provided that any appellate proceeding commenced
before March 1, 1978, shall continue to its conclusion in the court
in which it is then pending in accordance with the Florida Appellate
Rules, 1962 Amendment.
The Florida Rules of General Practice and Judicial
Administration are applicable in all proceedings governed by these
rules, except as otherwise provided by these rules. These rules shall
supersede all conflicting statutes and, as provided in Florida Rule of
General Practice and Judicial Administration 2.130, all conflicting
rules of procedure.
Committee Notes
1977 Amendment. The rules have been re-numbered to
conform with the numbering system adopted by the Florida
Supreme Court for all of its rules of practice and procedure, and to
avoid confusion with the former rules, which have been extensively
revised. The abbreviated citation form to be used for these rules
appears in this rule and in rule 9.800.
This rule sets an effective date and retains the substance of
former rules 1.1, 1.2, and 1.4. A transition provision has been
incorporated to make clear that proceedings already in the appellate
stage before the effective date will continue to be governed by the
former rules until the completion of appellate review in the court in
which it is pending on the effective date. If review is sought after
March 1, 1978, of an appellate determination made in a proceeding
filed in the appellate court before that date, the higher court may
allow review to proceed under the former rules if an injustice would
result from required adherence to the new rules. Unnecessary
language has been deleted and the wording has been simplified.
Specific reference has been made to rule 9.030(c) to clarify those
aspects of the jurisdiction of the circuit courts governed by these
rules.
1992 Amendment. This rule was amended to eliminate the
statement that the Florida Rules of Appellate Procedure supersede
all conflicting rules. Other sets of Florida rules contain provisions
applicable to certain appellate proceedings, and, in certain
instances, those rules conflict with the procedures set forth for
other appeals under these rules. In the absence of a clear mandate
from the supreme court that only the Florida Rules of Appellate
Procedure are to address appellate concerns, the committee felt that
these rules should not automatically supersede other rules. See,
e.g., In the Interest of E.P. v. Department of Health and
Rehabilitative Services, 544 So. 2d 1000 (Fla. 1989).
1996 Amendment. Rule of Judicial Administration 2.135 now
mandates that the Rules of Appellate Procedure control in all
appellate proceedings.
RULE 9.020 cases. DEFINITIONS
The following terms have the meanings shown as used in
these rules:
(a) Administrative Action. Administrative action includes:
(1) final agency action as defined in the Administrative
Procedure Act, chapter 120, Florida Statutes;
(2) nonfinal action by an agency or administrative law
judge reviewable under the Administrative Procedure Act;
(3) quasi-judicial decisions by any administrative body,
agency, board, or commission not subject to the Administrative
Procedure Act; and
(4) administrative action for which judicial review is
provided by general law.
(b) Clerk. The person or official specifically designated as
such for the court or lower tribunal; if no person or official has been
specifically so designated, the official or agent who most closely
resembles a clerk in the functions performed.
(c) Court. The supreme court, the district courts of appeal,
and the circuit courts in the exercise of the jurisdiction described
by rule 9.030(c), including the chief justice of the supreme court
and the chief judge of a district court of appeal in the exercise of
constitutional, administrative, or supervisory powers on behalf of
such courts.
(d) Family Law Matter. A matter governed by the Florida
Family Law Rules of Procedure.
(e) Lower Tribunal. The court, agency, officer, board,
commission, judge of compensation claims, or body whose order is
to be reviewed.
(f) Order. A decision, order, judgment, decree, or rule of a
lower tribunal, excluding minutes and minute book entries.
(g) Parties.
(1) Appellant. A party who seeks to invoke the appeal
jurisdiction of a court.
(2) Appellee. Every party in the proceeding in the lower
tribunal other than an appellant.
(3) Petitioner. A party who seeks an order under rule
9.100 or rule 9.120.
(4) Respondent. Every other party in a proceeding
brought by a petitioner.
(h) Rendition of an Order. An order is rendered when a
signed, written order is filed with the clerk of the lower tribunal.
(1) Motions Tolling Rendition. The following motions, if
authorized and timely filed, toll rendition unless another applicable
rule of procedure specifically provides to the contrary:
(A) motion for new trial, remittitur, or additur;
(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;
(H) motion to correct a sentence or order of
probation under Florida Rule of Criminal Procedure 3.800(b)(1);
(I) motion to withdraw a plea after sentencing
under Florida Rule of Criminal Procedure 3.170(l);
(J) motion to correct a disposition or commitment
order under Florida Rule of Juvenile Procedure 8.135(b);
(K) motion to claim ineffective assistance of
counsel following an order terminating parental rights under
Florida Rule of Juvenile Procedure 8.530(f);
(L) motion to vacate an order under Florida
Family Law Rules of Procedure 12.490(e)(3) or 12.491(f); or
(M) motion to withdraw a plea after disposition
under Florida Rule of Juvenile Procedure 8.075(f).
(2) Effect of Motions Tolling Rendition. If any timely and
authorized motion listed in subdivision (h)(1) of this rule has been
filed in the lower tribunal directed to a final order, the following
apply:
(A) the final order will not be deemed rendered as
to any existing party until all of the motions are either withdrawn
by written notice filed in the lower tribunal or resolved by the
rendition of an order disposing of the last of such motions;
(B) if an order granting a new trial is rendered,
tolling concludes, notwithstanding that other such motions may
remain pending at the time; or
(C) if a notice of appeal is filed before the rendition
of an order disposing of all such motions, the appeal must be held
in abeyance until the motions are either withdrawn or resolved by
the rendition of an order disposing of the last such motion.
(i) Rendition of an Appellate Order or Opinion. An
appellate order or opinion is rendered when docketed by the clerk of
the court. If any timely and authorized motion under rules 9.330 or
9.331 is filed, the order or opinion will not be deemed rendered as
to any party until all of the motions are either withdrawn or
resolved by the rendition of an order or opinion on the motion.
(j) Conformed Copy. A true and accurate copy.
(k) Signed. A signed document is one containing a signature
as provided by Florida Rule of General Practice and Judicial
Administration 2.515(c).
(l) E-filing System Docket. The docket where attorneys
and those parties who are registered users of the court’s electronic
filing (e-filing) system can view the electronic documents filed in
their case(s).
Committee Notes
1977 Amendment. This rule supersedes former rule 1.3.
Throughout these rules the defined terms have been used in their
technical sense only, and are not intended to alter substantive law.
Instances may arise in which the context of the rule requires a
different meaning for a defined term, but these should be rare.
The term “administrative action” is new and has been defined
to make clear the application of these rules to judicial review of
administrative agency action. This definition was not intended to
conflict with the Administrative Procedure Act, chapter 120, Florida
Statutes (1975), but was intended to include all administrative
agency action as defined in the Administrative Procedure Act. The
reference to municipalities is not intended to conflict with article
VIII, section 1(a), Florida Constitution, which makes counties the
only political subdivisions of the state.
The term “clerk” retains the substance of the term “clerk”
defined in the former rules. This term includes the person who in
fact maintains records of proceedings in the lower tribunal if no
person is specifically and officially given that duty.
The term “court” retains the substance of the term “court”
defined in the former rules, but has been modified to recognize the
authority delegated to the chief justice of the supreme court and the
chief judges of the district courts of appeal. This definition was not
intended to broaden the scope of these rules in regard to the
administrative responsibilities of the mentioned judicial officers.
The term is used in these rules to designate the court to which a
proceeding governed by these rules is taken. If supreme court
review of a district court of appeal decision is involved, the district
court of appeal is the “lower tribunal.”
The term “lower tribunal” includes courts and administrative
agencies. It replaces the terms “commission,” “board,” and “lower
court” defined in the former rules.
The term “order” has been broadly defined to include all final
and interlocutory rulings of a lower tribunal and rules adopted by
an administrative agency. Minute book entries are excluded from
the definition in recognition of the decision in Employers’ Fire Ins.
Co. v. Continental Ins. Co., 326 So. 2d 177 (Fla. 1976). It was
intended that this rule encourage the entry of written orders in
every case.
The terms “appellant,” “appellee,” “petitioner,” and
“respondent” have been defined according to the rule applicable to a
particular proceeding and generally not according to the legal
nature of the proceeding before the court. The term “appellee” has
been defined to include the parties against whom relief is sought
and all others necessary to the cause. This rule supersedes all
statutes concerning the same subject matter, such as section
924.03, Florida Statutes (1975). It should be noted that if a
certiorari proceeding is specifically governed by a rule that only
refers to “appellant” and “appellee,” a “petitioner” and “respondent”
should proceed as if they were “appellant” and “appellee,”
respectively. For example, certiorari proceedings in the supreme
court involving the Public Service Commission and Industrial
Relations Commission are specifically governed by rule 9.110 even
though that rule only refers to “appellant” and “appellee.” The
parties in such a certiorari proceeding remain designated as
“petitioner” and “respondent,” because as a matter of substantive
law the party invoking the court’s jurisdiction is seeking a writ of
certiorari. The same is true of rule 9.200 governing the record in
such certiorari proceedings.
The term “rendition” has been simplified and unnecessary
language deleted. The filing requirement of the definition was not
intended to conflict with the substantive right of review guaranteed
by the Administrative Procedure Act, section 120.68(1), Florida
Statutes (Supp. 1976), but to set a point from which certain
procedural times could be measured. Motions that postpone the
date of rendition have been narrowly limited to prevent deliberate
delaying tactics. To postpone rendition the motion must be timely,
authorized, and one of those listed. However, if the lower tribunal is
an administrative agency whose rules of practice denominate
motions identical to those listed by a different label, the substance
of the motion controls and rendition is postponed accordingly.
The definition of “legal holiday” has been eliminated but its
substance has been retained in rule 9.420(e).
The term “bond” is defined in rule 9.310(c)(1).
Terms defined in the former rules and not defined here are
intended to have their ordinary meanings in accordance with the
context of these rules.
1992 Amendment. Subdivision (a) has been amended to
reflect properly that deputy commissioners presently are designated
as judges of compensation claims.
Subdivision (g) has been rewritten extensively. The first change
in this rule was to ensure that an authorized motion for clarification
(such as under rule 9.330) was included in those types of motions
that delay rendition.
Subdivision (g) also has been revised in several respects to
clarify some problems presented by the generality of the prior
definition of “rendition.” Although rendition is postponed in most
types of cases by the filing of timely and authorized post-judgment
motions, some rules of procedure explicitly provide to the contrary.
The subdivision therefore has been qualified to provide that
conflicting rules shall control over the general rule stated in the
subdivision. See In Re Interest of E. P., 544 So. 2d 1000 (Fla. 1989).
The subdivision also has been revised to make explicit a
qualification of long standing in the decisional law, that rendition of
non-final orders cannot be postponed by motions directed to them.
Not all final orders are subject to postponement of rendition,
however. Rendition of a final order can be postponed only by an
“authorized” motion, and whether any of the listed motions is an
“authorized” motion depends on the rules of procedure governing
the proceeding in which the final order is entered. See Francisco v.
Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986),
review denied 494 So. 2d 1153.
Subdivision (g)(1) has been added to clarify the date of
rendition when post-judgment motions have been filed. If there is
only 1 plaintiff and 1 defendant in the case, the filing of a post-
judgment motion or motions by either party (or both parties) will
postpone rendition of the entire final order as to all claims between
the parties. If there are multiple parties on either or both sides of
the case and less than all parties file post-judgment motions,
rendition of the final order will be postponed as to all claims
between moving parties and parties moved against, but rendition
will not be postponed with respect to claims disposed of in the final
order between parties who have no post-judgment motions pending
between them with respect to any of those claims. See, e.g., Phillips
v. Ostrer, 442 So. 2d 1084 (Fla. 3d DCA 1983).
Ideally, all post-judgment motions should be disposed of at the
same time. See Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722
(Fla. 1985). If that occurs, the final order is deemed rendered as to
all claims when the order disposing of the motions is filed with the
clerk. If all motions are not disposed of at the same time, the final
order is deemed rendered as to all claims between a moving party
and a party moved against when the written order disposing of the
last remaining motion addressed to those claims is filed with the
clerk, notwithstanding that other motions filed by co-parties may
remain pending. If such motions remain, the date of rendition with
respect to the claims between the parties involved in those motions
shall be determined in the same way.
Subdivision (g)(2) has been added to govern the special
circumstance that arises when rendition of a final order has been
postponed initially by post-judgment motions, and a motion for new
trial then is granted. If the new trial has been granted simply as an
alternative to a new final order, the appeal will be from the new final
order. However, if a new trial alone has been ordered, the appeal
will be from the new trial order. See rule 9.110. According to the
decisional law, rendition of such an order is not postponed by the
pendency of any additional, previously filed post-judgment motions,
nor can rendition of such an order be postponed by the filing of any
further motion. See Frazier v. Seaboard System Railroad, Inc., 508
So. 2d 345 (Fla. 1987). To ensure that subdivision (g)(1) is not read
as a modification of this special rule, subdivision (g)(2) has been
added to make it clear that a separately appealable new trial order
is deemed rendered when filed, notwithstanding that other post-
judgment motions directed to the initial final order may remain
pending at the time.
Subdivision (g)(3) has been added to clarify the confusion
generated by a dictum in Williams v. State, 324 So. 2d 74 (Fla.
1975), which appeared contrary to the settled rule that post-
judgment motions were considered abandoned by a party who filed
a notice of appeal before their disposition. See In Re: Forfeiture of
$104,591 in U.S. Currency, 578 So. 2d 727 (Fla. 3d DCA 1991). The
new subdivision confirms that rule, and provides that the final
order is rendered as to the appealing party when the notice of
appeal is filed. Although the final order is rendered as to the
appealing party, it is not rendered as to any other party whose post-
judgment motions are pending when the notice of appeal is filed.
1996 Amendment. Subdivision (a) was amended to reflect the
current state of the law. When the term “administrative action” is
used in the Florida Rules of Appellate Procedure, it encompasses
proceedings under the Administrative Procedure Act, quasi-judicial
proceedings before local government agencies, boards, and
commissions, and administrative action for which judicial review is
provided by general law.
Addition of language in subdivision (i) is intended to toll the
time for the filing of a notice of appeal until the resolution of a
timely filed motion to vacate when an order has been entered based
on the recommendation of a hearing officer in a family law matter.
Under the prior rules, a motion to vacate was not an authorized
motion to toll the time for the filing of an appeal, and too often the
motion to vacate could not be heard within 30 days of the rendition
of the order. This rule change permits the lower tribunal to
complete its review prior to the time an appeal must be filed.
2000 Amendment. The text of subdivision (i) was moved into
the main body of subdivision (h) to retain consistency in the
definitional portions of the rule.
2020 Amendment. For purposes of determining the date of
rendition, it is important that electronically and paper-filed orders
and judgments include accurate date stamps. Thus, absent
extraordinary circumstances, documents should be date stamped
for the day on which they are filed with the clerk. Backdating to the
date on which the order or judgment was signed is not permitted.
See, e.g., Guy v. Plaza Home Mortg., Inc., 260 So. 3d 280, 280–81
(Fla. 4th DCA 2018) (“[Backdating the date of rendition] can cause,
at best, confusion, and at worst, a loss of appellate rights. . . . By
backdating the electronic filing stamp, the clerk changes the
rendition date, possibly to the prejudice of an appellant.”).
Court Commentary
1996 Amendment. Subdivision (h) was amended to ensure
that a motion to correct sentence or order of probation and a
motion to withdraw the plea after sentencing would postpone
rendition. Subdivision (h)(3) was amended to explain that such a
motion is not waived by an appeal from a judgment of guilt.
RULE 9.030 cases. JURISDICTION OF COURTS
(a) Jurisdiction of the Supreme Court of Florida.
(1) Appeal Jurisdiction.
(A) The supreme court shall review, by appeal:
(i) final orders of courts imposing sentences
of death; and 1
(ii) decisions of district courts of appeal
declaring invalid a state statute or a provision of the state
constitution.2
(B) If provided by general law, the supreme court
shall review:
(i) by appeal final orders entered in
proceedings for the validation of bonds or certificates of
indebtedness;3 and
(ii) action of statewide agencies relating to
rates or service of utilities providing electric, gas, or telephone
service.4
(2) Discretionary Jurisdiction. The discretionary
jurisdiction of the supreme court may be sought to review:
(A) decisions of district courts of appeal that:5
(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:6
(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.7
(3) Original Jurisdiction. The supreme court may issue
writs of prohibition to courts and all writs necessary to the complete
exercise of its jurisdiction, and may issue writs of mandamus and
quo warranto to state officers and state agencies. The supreme
court or any justice may issue writs of habeas corpus returnable
before the supreme court or any justice, a district court of appeal or
any judge thereof, or any circuit judge.8
(b) Jurisdiction of District Courts of Appeal.
(1) Appeal Jurisdiction. District courts of appeal shall
review, by appeal:
(A) final orders of trial courts,1, 2 not directly
reviewable by the supreme court or a circuit court;
(B) nonfinal orders as prescribed by rule 9.130;9
and
(C) administrative action if provided by general
law.2
(2) Certiorari Jurisdiction.8 The certiorari jurisdiction of
district courts of appeal may be sought to review:
(A) nonfinal orders of lower tribunals other than
as prescribed by rule 9.130; or
(B) final orders of circuit courts acting in their
review capacity.
(3) Original Jurisdiction.8 District courts of appeal may
issue writs of mandamus, prohibition, quo warranto, and common
law certiorari, and all writs necessary to the complete exercise of
the courts’ jurisdiction; or any judge thereof may issue writs of
habeas corpus returnable before the court or any judge thereof, or
before any circuit judge within the territorial jurisdiction of the
court.
(4) Discretionary Review.10 District courts of appeal, in
their discretion, may review by appeal final orders of the county
court, otherwise appealable to the circuit court by general law, that
the county court has certified to involve a question that may have
statewide application and that:
(A) is of great public importance; or
(B) will affect the uniform administration of
justice.
(c) Jurisdiction of Circuit Courts.
(1) Appeal Jurisdiction. The circuit courts shall review,
by appeal:
(A) final orders of lower tribunals as provided by
general law;1, 2
(B) nonfinal orders of lower tribunals as provided
by general law; and
(C) administrative action if provided by general
law.
(2) Certiorari Jurisdiction.8 The certiorari jurisdiction of
circuit courts may be sought to review nonfinal orders of lower
tribunals other than as prescribed by rule 9.130.
(3) Original Jurisdiction.8 Circuit courts may issue writs
of mandamus, prohibition, quo warranto, common law certiorari,
and habeas corpus, and all writs necessary to the complete exercise
of the courts’ jurisdiction.
1. 9.140.
2. 9.110.
3. 9.110(i).
4. 9.110.
5. 9.120.
6. 9.125.
7. 9.150.
8. 9.100.
9. 9.130.
10. 9.160.
Committee Notes
1977 Amendment. This rule replaces former rules 2.1(a)(5)
and 2.2(a)(4). It sets forth the jurisdiction of the supreme court,
district courts of appeal, and that portion of the jurisdiction of the
circuit courts to which these rules apply. It paraphrases sections
3(b), 4(b), and, in relevant part, 5(b) of article V of the Florida
Constitution. The items stating the certiorari jurisdiction of the
supreme court and district courts of appeal refer to the
constitutional jurisdiction popularly known as the “constitutional
certiorari” jurisdiction of the supreme court and “common law
certiorari” jurisdiction of the district courts of appeal. This rule is
not intended to affect the substantive law governing the jurisdiction
of any court and should not be considered as authority for the
resolution of disputes concerning any court’s jurisdiction. Its
purpose is to provide a tool of reference to the practitioner so that
ready reference may be made to the specific procedural rule or rules
governing a particular proceeding. Footnote references have been
made to the rule or rules governing proceedings invoking the listed
areas of jurisdiction.
This rule does not set forth the basis for the issuance of
advisory opinions by the supreme court to the governor because the
power to advise rests with the justices under article IV, section 1(c),
Florida Constitution, and not the supreme court as a body. The
procedure governing requests from the governor for advice are set
forth in rule 9.500.
The advisory committee considered and rejected as unwise a
proposal to permit the chief judge of each judicial circuit to modify
the applicability of these rules to that particular circuit. These rules
may be modified in a particular case, of course, by an agreed joint
motion of the parties granted by the court so long as the change
does not affect jurisdiction.
1980 Amendment. Subdivision (a) of this rule has been
extensively revised to reflect the constitutional modifications in the
supreme court’s jurisdiction as approved by the electorate on March
11, 1980. See art. V, § 3(b), Fla. Const. (1980). The impetus for
these modifications was a burgeoning caseload and the attendant
need to make more efficient use of limited appellate resources.
Consistent with this purpose, revised subdivision (a) limits the
supreme court’s appellate, discretionary, and original jurisdiction to
cases that substantially affect the law of the state. The district
courts of appeal will constitute the courts of last resort for the vast
majority of litigants under amended article V.
Subdivision (a)(1)(A)(i) retains the mandatory appellate
jurisdiction of the supreme court to review final orders of trial
courts imposing death sentences.
Subdivision (a)(1)(A)(ii) has been substantively changed in
accordance with amended article V, section 3(b)(1), Florida
Constitution (1980), to eliminate the court’s mandatory appellate
review of final orders of trial courts and decisions of district courts
of appeal initially and directly passing on the validity of a state
statute or a federal statute or treaty, or construing a provision of
the state or federal constitution. Mandatory supreme court review
under this subdivision is now limited to district court decisions
“declaring invalid” a state statute or a provision of the state
constitution. Jurisdiction to review final orders of trial courts in all
instances enumerated in former subdivision (a)(1)(A)(ii) now reposes
in the appropriate district court of appeal.
Revised subdivision (a)(1)(B) enumerates the 2 classes of cases
that the supreme court may review if provided by general law. See
art. V, § 3(b)(2), Fla. Const. (1980). Eliminated from the amended
article V and rule is the legislative authority, never exercised, to
require supreme court review of trial court orders imposing
sentences of life imprisonment.
Subdivision (a)(1)(B)(i), pertaining to bond validation
proceedings, replaces former subdivision (a)(1)(B)(ii). Its phraseology
remains unchanged. Enabling legislation already exists for supreme
court review of bond validation proceedings. See § 75.08, Fla. Stat.
(1979).
Subdivision (a)(1)(B)(ii) is new. See art. V, § 3(b)(2), Fla. Const.
(1980). Under the earlier constitutional scheme, the supreme court
was vested with certiorari jurisdiction (which in practice was always
exercised) to review orders of “commissions established by general
law having statewide jurisdiction,” including orders of the Florida
Public Service Commission. See art. V, § 3(b)(3), Fla. Const. (1968);
§ 350.641, Fla. Stat. (1979). This jurisdiction has been abolished. In
its stead, amended article V limits the supreme court’s review of
Public Service Commission orders to those “relating to rates or
services of utilities providing electric, gas, or telephone service.”
Enabling legislation will be required to effectuate this jurisdiction.
Review of Public Service Commission orders other than those
relating to electric, gas, or utility cases now reposes in the
appropriate district court of appeal. See art. V, § 4(b)(2), Fla. Const.
(1968); Fla. R. App. P. 9.030(b)(1)(C); and § 120.68(2), Fla. Stat.
(1979).
Subdivision (a)(2) has been substantially revised in accordance
with amended article V, section 3(b)(3), Florida Constitution (1980),
to restrict the scope of review under the supreme court’s
discretionary jurisdiction. Under the earlier constitution, this
jurisdiction was exercised by writ of certiorari. Constitutional
certiorari is abolished under amended article V. Reflecting this
change, revised subdivision (a)(2) of this rule substitutes the phrase
“discretionary jurisdiction” for “certiorari jurisdiction” in the
predecessor rule. This discretionary jurisdiction is restricted,
moreover, to 6 designated categories of district court decisions,
discussed below. Amended article V eliminates the supreme court’s
discretionary power to review “any interlocutory order passing upon
a matter which upon final judgment would be directly appealable to
the Supreme Court” as reflected in subdivision (a)(2)(B) of the
predecessor rule. It also eliminates the supreme court’s certiorari
review of “commissions established by general law having statewide
jurisdiction” as reflected in subdivision (a)(2)(C) of the predecessor
rule.
Subdivision (a)(2)(A) specifies the 6 categories of district court
decisions reviewable by the supreme court under its discretionary
jurisdiction.
Subdivisions (a)(2)(A)(i) and (a)(2)(A)(ii) are new and pertain to
matters formerly reviewable under the court’s mandatory appellate
jurisdiction. Under former rule 9.030(a)(1)(A)(ii), the supreme
court’s mandatory appellate jurisdiction could be invoked if a lower
tribunal “inherently” declared a statute valid. See Harrell’s Candy
Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla.
1959). The 1980 amendments to article V and this subdivision
require a district court to “expressly declare” a state statute valid
before the supreme court’s discretionary jurisdiction may be
invoked.
Subdivision (a)(2)(A)(iii), pertaining to supreme court review of
district court decisions affecting a class of constitutional or state
officers, has been renumbered. It tracks the language of the
predecessor constitution and rule, with the addition of the
restrictive word “expressly” found in amended article V.
Subdivision (a)(2)(A)(iv) represents the most radical change in
the supreme court’s discretionary jurisdiction. The predecessor
article V vested the supreme court with power to review district
court decisions “in direct conflict with a decision of any district
court of appeal or of the Supreme Court on the same point of law.”
These cases comprised the overwhelming bulk of the court’s
caseload and gave rise to an intricate body of case law interpreting
the requirements for discretionary conflict review. With the
enunciation of the “record proper rule” in Foley v. Weaver Drugs,
Inc., 177 So. 2d 221 (Fla. 1965), the supreme court extended its
discretionary review in instances of discernible conflict to district
court decisions affirming without opinion the orders of trial courts.
Amended article V abolishes the Foley doctrine by requiring an
“express” as well as a “direct” conflict of district court decisions as a
prerequisite to supreme court review. The new article also
terminates supreme court jurisdiction over purely intradistrict
conflicts, the resolution of which is addressed in rule 9.331.
Subdivision (a)(2)(A)(v) substitutes the phrase “great public
importance” for “great public interest” in the predecessor
constitution and rule. The change was to recognize the fact that
some legal issues may have “great public importance,” but may not
be sufficiently known by the public to have “great public interest.”
Subdivision (a)(2)(A)(vi) is new and tracks the language of
article V, section 3(b)(4), Florida Constitution (1980).
Subdivisions (a)(2)(B) and (a)(2)(C) are new. See art. V, §§
3(b)(5), (3)(b)(6), Fla. Const. (1980). Certification procedures under
these subdivisions are addressed in rule 9.125 and rule 9.150,
respectively.
Subdivision (a)(3) is identical to the predecessor article V and
rule, except it limits the issuance of writs of prohibition to “courts”
rather than “courts and commissions” and limits the issuance of
writs of mandamus and quo warranto to “state agencies” rather
than “agencies.”
1984 Amendment. Subdivision (b)(4) was added to implement
legislation authorizing district courts of appeal discretion to review
by appeal orders and judgments of county courts certified to be of
great public importance.
1992 Amendment. Subdivision (c)(1)(B) was amended to
reflect correctly that the appellate jurisdiction of circuit courts
extended to all non-final orders of lower tribunals as prescribed by
rule 9.130, and not only those defined in subdivision (a)(3) of that
rule.
Subdivision (c)(1)(C) was amended to reflect the jurisdiction
conferred on circuit courts by article V, section 5, Florida
Constitution, which provides that “[t]hey shall have the power of
direct review of administrative action prescribed by general law.”
2000 Amendment. Subdivision (c)(1)(B) was amended to
reflect that the appellate jurisdiction of circuit courts is prescribed
by general law and not by rule 9.130, as clarified in Blore v. Fierro,
636 So. 2d 1329 (Fla. 1994).
RULE 9.040 cases. GENERAL PROVISIONS
(a) Complete Determination. In all proceedings a court will
have such jurisdiction as may be necessary for a complete
determination of the cause.
(b) Forum.
(1) If a proceeding is commenced in an inappropriate
court, that court will transfer the cause to an appropriate court.
(2) After a lower tribunal renders an order transferring
venue, the appropriate court to review otherwise reviewable nonfinal
orders is as follows:
(A) After rendition of an order transferring venue,
the appropriate court to review the nonfinal venue order, all other
reviewable nonfinal orders rendered before or simultaneously 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 nonfinal
orders in the cause, had venue not been transferred.
(B) After rendition of an order transferring venue,
the appropriate court to review any subsequently rendered
reviewable nonfinal order, except for those orders listed in
subdivision (b)(2)(A), is the court that would review the order, if the
cause had been filed in the lower tribunal to which venue was
transferred.
(C) The clerk of the lower tribunal whose order is
being reviewed will perform the procedures required by these
provisions regarding transfer of venue, including accepting and
filing a notice of appeal. If necessary to facilitate nonfinal review,
after an order transferring venue has been rendered, the clerk of the
lower tribunal must copy and retain such portions of the record as
are necessary for review of the nonfinal order. If the file of the cause
has been transferred to the transferee tribunal before the notice of
appeal is filed in the transferring tribunal, the clerk of the
transferee tribunal must copy and transmit to the transferring
tribunal such portions of the record as are necessary for review of
the nonfinal order.
(c) Remedy. If a party seeks an improper remedy, the cause
must be treated as if the proper remedy had been sought; provided
that it will not be the responsibility of the court to seek the proper
remedy.
(d) Amendment. At any time in the interest of justice, the
court may permit any part of the proceeding to be amended so that
it may be disposed of on the merits. In the absence of amendment,
the court may disregard any procedural error or defect that does
not adversely affect the substantial rights of the parties.
(e) Assignments of Error. Assignments of error are neither
required nor permitted.
(f) Filing Fees and other Non-Jurisdictional Matters.
Filing fees may be paid by any method accepted by the clerk or the
court. Failure to submit filing fees timely or timely file additional
copies of notices, petitions, or orders designated in the notice of
appeal will not be jurisdictional; provided that such failure may be
the subject of appropriate sanction.
(g) Clerks’ Duties. On filing of a notice prescribed by these
rules, the clerk of the lower tribunal must forthwith transmit the fee
and a certified copy of the notice, showing the date of filing, to the
court. If jurisdiction has been invoked under rule 9.030(a)(2)(A)(v) or
(a)(2)(A)(vi), or if a certificate has been issued by a district court of
appeal under rule 9.030(a)(2)(B), the clerk of the district court of
appeal must transmit copies of the certificate and decision or order
and any suggestion, replies, or appendices with the certified copy of
the notice. Notices to review final orders of county and circuit
courts in civil cases must be recorded.
(h) Request to Determine Confidentiality of Appellate
Court Records. Requests to determine the confidentiality of
appellate records are governed by Florida Rule of General Practice
and Judicial Administration 2.420.
(i) Public Availability of Written Opinions. Except for
written opinions determined to be confidential under Florida Rule of
General Practice and Judicial Administration 2.420, the court must
make publicly available on the court’s website all written opinions
entered on an appeal or petition. Each written opinion made
publicly available must be text searchable and in a Portable
Document Format (“PDF”).
Committee Notes
1977 Amendment. This rule sets forth several miscellaneous
matters of general applicability.
Subdivision (a) is derived from the last sentence of former rule
2.1(a)(5)(a), which concerned direct appeals to the supreme court.
This provision is intended to guarantee that once the jurisdiction of
any court is properly invoked, the court may determine the entire
case to the extent permitted by substantive law. This rule does not
extend or limit the constitutional or statutory jurisdiction of any
court.
Subdivisions (b) and (c) implement article V, section 2(a),
Florida Constitution. Former rule 2.1(a)(5)(d) authorized transfer if
an improper forum was chosen, but the former rules did not
address the problem of improper remedies being sought. The
advisory committee does not consider it to be the responsibility of
the court to seek the proper remedy for any party, but a court may
not deny relief because a different remedy is proper. Under these
provisions a case will not be dismissed automatically because a
party seeks an improper remedy or invokes the jurisdiction of the
wrong court. The court must instead treat the case as if the proper
remedy had been sought and transfer it to the court having
jurisdiction. All filings in the case have the same legal effect as
though originally filed in the court to which transfer is made. This
rule is intended to supersede Nellen v. State, 226 So. 2d 354 (Fla.
1st DCA 1969), in which a petition for a common law writ of
certiorari was dismissed by the district court of appeal because
review was properly by appeal to the appropriate circuit court, and
Engel v. City of North Miami, 115 So. 2d 1 (Fla. 1959), in which a
petition for a writ of certiorari was dismissed because review should
have been by appeal. Under this rule, a petition for a writ of
certiorari should be treated as a notice of appeal, if timely.
Subdivision (d) is the appellate procedure counterpart of the
harmless error statute, section 59.041, Florida Statutes (1975). It
incorporates the concept contained in former rule 3.2(c), which
provided that deficiencies in the form or substance of a notice of
appeal were not grounds for dismissal, absent a clear showing that
the adversary had been misled or prejudiced. Amendments should
be liberally allowed under this rule, including pleadings in the lower
tribunal, if it would not result in irremediable prejudice.
Subdivision (e) is intended to make clear that assignments of
error have been abolished by these rules. It is not intended to
extend the scope of review to matters other than judicial acts. If less
than the entire record as defined in rule 9.200(a)(1) is to be filed,
rule 9.200(a)(2) requires service of a statement of the judicial acts
for which review is sought. This requirement also applies under rule
9.140(d). As explained in the commentary accompanying those
provisions, such a statement does not have the same legal effect as
an assignment of error under the former rules.
Subdivision (f) permits payment of filing fees by check or
money order and carries forward the substance of former rule
3.2(a), which allowed payments in cash.
Subdivision (g) is derived from former rules 3.2(a) and 3.2(e).
Under these rules, notices and fees are filed in the lower tribunal
unless specifically stated otherwise. The clerk must transmit the
notice and fees immediately. This requirement replaces the
provision of the former rules that the notice be transmitted within 5
days. The advisory committee was of the view that no reason existed
for any delays. The term “forthwith” should not be construed to
prevent the clerk from delaying transmittal of a notice of criminal
appeal for which no fee has been filed for the period of time
necessary to obtain an order regarding solvency for appellate
purposes and the appointment of the public defender for an
insolvent defendant. This provision requires recording of the notice
if review of a final trial court order in a civil case is sought. When
supreme court jurisdiction is invoked on the basis of the
certification of a question of great public interest, the clerk of the
district court of appeal is required to transmit a copy of the
certificate and the decision to the court along with the notice and
fees.
Subdivision (h) is intended to implement the decision in
Williams v. State, 324 So. 2d 74 (Fla. 1975), in which it was held
that only the timely filing of the notice of appeal is jurisdictional.
The proviso permits the court to impose sanctions if there is a
failure to timely file fees or copies of the notice or petition.
The advisory committee considered and rejected as too difficult
to implement a proposal of the bar committee that the style of a
cause should remain the same as in the lower tribunal.
It should be noted that these rules abolish the practice of
permitting Florida trial courts to certify questions to an appellate
court. The former rules relating to the internal government of the
courts and the creation of the advisory committee have been
eliminated as irrelevant to appellate procedure. At its conference of
June 27, however, the court unanimously voted to establish a
committee to, among other things, prepare a set of administrative
rules to incorporate matters of internal governance formerly
contained in the appellate rules. The advisory committee has
recommended that its existence be continued by the supreme court.
1980 Amendment. Subdivision (g) was amended to direct the
clerk of the district court to transmit copies of the district court
decision, the certificate, the order of the trial court, and the
suggestion, replies, and appendices in all cases certified to the
supreme court under rule 9.030(a)(2)(B) or otherwise certified under
rule 9.030(a)(2)(A)(v) or (a)(2)(A)(vi).
1992 Amendment. Subdivision (h) was amended to provide
that the failure to attach conformed copies of the order or orders
designated in a notice of appeal as is now required by rules
9.110(d), 9.130(c), and 9.160(c) would not be a jurisdictional defect,
but could be the basis of appropriate sanction by the court if the
conformed copies were not included with the notice of appeal.
2000 Amendment. In the event non-final or interlocutory
review of a reviewable, non-final order is sought, new subdivision
9.040(b)(2) specifies which court should review such order, after
rendition of an order transferring venue to another lower tribunal
outside the appellate district of the transferor lower tribunal. It is
intended to change and clarify the rules announced in Vasilinda v.
Lozano, 631 So. 2d 1082 (Fla. 1994), and Cottingham v. State, 672
So. 2d 28 (Fla. 1996). The subdivision makes the time a venue
order is rendered the critical factor in determining which court
should review such non-final orders, rather than the time fees are
paid, or the time the file is received by the transferee lower tribunal,
and it applies equally to civil as well as criminal cases. If review is
sought of the order transferring venue, as well as other reviewable
non-final orders rendered before the change of venue order is
rendered, or ones rendered simultaneously with it, review should be
by the court that reviews such orders from the transferring lower
tribunal. If review is sought of reviewable, non-final orders rendered
after the time the venue order is rendered, review should be by the
court that reviews such orders from the transferee lower tribunal.
The only exceptions are for review of orders staying or vacating the
transfer of venue order, or an order dismissing the cause for failure
to pay fees, which should be reviewed by the court that reviews
orders from the transferring lower tribunal. This paragraph is not
intended to apply to review of reviewable non-final orders, for which
non-final or interlocutory review is not timely sought or perfected.
RULE 9.045 cases. FORM OF DOCUMENTS
(a) Generally. All documents, as defined in Florida Rule of
General Practice and Judicial Administration 2.520(a), filed with the
court shall comply with Florida Rule of General Practice and
Judicial Administration 2.520 and with this rule. If filed in
electronic format, parties shall file only the electronic version.
(b) Line Spacing, Type Size, and Typeface. The text in
documents shall be black and in distinct type, double-spaced. Text
in script or type made in imitation of handwriting shall not be
permitted. Footnotes and quotations may be single-spaced and
shall be in the same size type, with the same spacing between
characters, as the text in the body of the document. Headings and
subheadings shall be at least as large as the document’s text and
may be single-spaced. Computer-generated documents shall be filed
in either Arial 14-point font or Bookman Old Style 14-point font.
(c) Binding. Documents file in paper format shall not be
stapled or bound.
(d) Signature. All documents filed with the court must be
signed as required by Florida Rule of General Practice and Judicial
Administration 2.515.
(e) Certificate of Compliance. Computer-generated
documents subject to word count limits shall contain a certificate of
compliance signed by counsel, or the party if unrepresented,
certifying that the document complies with the applicable font and
word count limit requirements. The certificate shall be contained in
the document immediately following the certificate of service. The
word count shall exclude words in a caption, cover page, table of
contents, table of citations, certificate of compliance, certificate of
service, or signature block. The word count shall include all other
words, including words used in headings, footnotes, and
quotations. The person preparing the certificate may rely on the
word count of the word-processing system used to prepare the
document.
RULE 9.050 cases. MAINTAINING PRIVACY OF PERSONAL DATA
(a) Application. Unless otherwise required by another rule
of court or permitted by leave of court, all briefs, petitions, replies,
appendices, motions, notices, stipulations, and responses and any
attachment thereto filed with the court shall comply with the
requirements of Florida Rule of General Practice and Judicial
Administration 2.425.
(b) Limitation. This rule does not require redaction of
personal data from the record.
(c) Motions Not Restricted. This rule does not restrict a
party’s right to move to file documents under seal.
RULE 9.100 cases. ORIGINAL PROCEEDINGS
(a) Applicability. This rule applies to those proceedings that
invoke the jurisdiction of the courts described in rules 9.030(a)(3),
(b)(2), (b)(3), (c)(2), and (c)(3) for the issuance of writs of mandamus,
prohibition, quo warranto, certiorari, and habeas corpus, and all
writs necessary to the complete exercise of the courts’ jurisdiction;
and for review of nonfinal administrative action.
(b) Commencement; Parties. The original jurisdiction of the
court must be invoked by filing a petition with the clerk of the court
having jurisdiction. The parties to the proceeding will be as follows:
(1) If the petition seeks review of an order entered by a
lower tribunal, all parties to the proceeding in the lower tribunal
who are not named as petitioners will be named as respondents.
(2) If the original jurisdiction of the court is invoked to
enforce a private right, the proceedings will not be brought on the
relation of the state.
(3) The following officials must not be named as
respondents to a petition, but a copy of the petition must be served
on the official who issued the order that is the subject of the
petition:
(A) judges of lower tribunals must not be named
as respondents to petitions for certiorari;
(B) individual members of agencies, boards, and
commissions of local governments must not be named as
respondents to petitions for review of quasi-judicial action; and
(C) officers presiding over administrative
proceedings, such as hearing officers and administrative law
judges, must not be named as respondents to petitions for review of
nonfinal agency action.
(c) Petitions for Certiorari; Review of Nonfinal Agency
Action; Review of Prisoner Disciplinary Action. The following
must be filed within 30 days of rendition of the order to be reviewed:
(1) a petition for certiorari;
(2) a petition to review quasi-judicial action of agencies,
boards, and commissions of local government, which action is not
directly appealable under any other provision of general law but
may be subject to review by certiorari;
(3) a petition to review nonfinal agency action under
the Administrative Procedure Act; or
(4) a petition challenging an order of the Department of
Corrections entered in prisoner disciplinary proceedings.
(d) Orders Excluding or Granting Access to Press or
Public.
(1) A petition to review an order excluding the press or
public from, or granting the press or public access to, any
proceeding, any part of a proceeding, or any records of the judicial
branch, must be filed in the court as soon as practicable following
rendition of the order to be reviewed, if written, or announcement of
the order to be reviewed, if oral, but no later than 30 days after
rendition of the order. A copy of the petition must be furnished to
the person (or chairperson of the collegial administrative agency)
issuing the order, the parties to the proceeding, and any affected
non-parties, as defined in Florida Rule of General Practice and
Judicial Administration 2.420.
(2) The court must immediately consider the petition to
determine whether a stay of proceedings in the lower tribunal or the
order under review is appropriate and, on its own motion or that of
any party, the court may order a stay on such conditions as may be
appropriate. Any motion to stay an order granting access to a
proceeding, any part of a proceeding, or any records of the judicial
branch made under this subdivision must include a signed
certification by the movant that the motion is made in good faith
and is supported by a sound factual and legal basis. Pending the
court’s ruling on the motion to stay, the clerk of the court and the
lower tribunal must treat as confidential those proceedings or those
records of the judicial branch that are the subject of the motion to
stay.
(3) Review of orders under this subdivision must be
expedited.
(e) Petitions for Writs of Mandamus and Prohibition
Directed to a Judge or Lower Tribunal. When a petition for a writ
of mandamus or prohibition seeks a writ directed to a judge or
lower tribunal, the following procedures apply:
(1) Caption. The name of the judge or lower tribunal
must be omitted from the caption. The caption must bear the name
of the petitioner and other parties to the proceeding in the lower
tribunal who are not petitioners must be named in the caption as
respondents.
(2) Parties. The judge or the lower tribunal is a formal
party to the petition for mandamus or prohibition and must be
named as such in the body of the petition (but not in the caption).
The petition must be served on all parties, including any judge or
lower tribunal who is a formal party to the petition.
(3) Response. Following the issuance of an order
pursuant to subdivision (h), the responsibility for responding to a
petition is that of the litigant opposing the relief requested in the
petition. Unless otherwise specifically ordered, the judge or lower
tribunal has no obligation to file a response. The judge or lower
tribunal retains the discretion to file a separate response should the
judge or lower tribunal choose to do so. The absence of a separate
response by the judge or lower tribunal will not be deemed to admit
the allegations of the petition.
(f) Review Proceedings in Circuit Court.
(1) Applicability. The following additional requirements
apply to those proceedings that invoke the jurisdiction of the circuit
court described in rules 9.030(c)(2) and (c)(3) to the extent that the
petition involves review of judicial or quasi-judicial action.
(2) Caption. The caption must contain a statement that
the petition is filed pursuant to this subdivision.
(3) Duties of the Clerk of the Circuit Court. When a
petition prescribed by this subdivision is filed, the clerk of the
circuit court must forthwith transmit the petition to the
administrative judge of the appellate division, or other appellate
judge or judges as prescribed by administrative order, for a
determination as to whether an order to show cause should be
issued.
(4) Default. The clerk of the circuit court will not enter
a default in a proceeding where a petition has been filed pursuant
to this subdivision.
(g) Petition. The petition must be accompanied by any
required filing fee except as provided in rule 9.430 for proceedings
by indigents. The caption must contain the name of the court and
the name and designation of all parties on each side. The petition
must not exceed 13,000 words if computer-generated or 50 pages if
handwritten or typewritten and must contain:
(1) the basis for invoking the jurisdiction of the court;
(2) the facts on which the petitioner relies;
(3) the nature of the relief sought; and
(4) argument in support of the petition and appropriate
citations of authority.
If the petition seeks an order directed to a lower tribunal, the
petition must be accompanied by an appendix as prescribed by rule
9.220, and the petition shall contain references to the appropriate
pages of the supporting appendix.
(h) Order to Show Cause. If the petition demonstrates a
preliminary basis for relief, a departure from the essential
requirements of law that will cause material injury for which there
is no adequate remedy by appeal, or that review of final
administrative action would not provide an adequate remedy, the
court may issue an order either directing the respondent to show
cause, within the time set by the court, why relief should not be
granted or directing the respondent to otherwise file, within the
time set by the court, a response to the petition. In prohibition
proceedings, the issuance of an order directing the respondent to
show cause will stay further proceedings in the lower tribunal.
(i) Record. A record must not be transmitted to the court
unless ordered.
(j) Response. Within the time set by the court, the
respondent may serve a response, which must not exceed 13,000
words if computer-generated or 50 pages if handwritten or
typewritten and which must include argument in support of the
response, appropriate citations of authority, and references to the
appropriate pages of the supporting appendices.
(k) Reply. Within 30 days thereafter or such other time set
by the court, the petitioner may serve a reply, which must not
exceed 4,000 words if computer-generated or 15 pages if
handwritten or typewritten, and supplemental appendix.
Committee Notes
1977 Amendment. This rule replaces former rule 4.5, except
that the procedures applicable to supreme court review of decisions
of the district courts of appeal on writs of constitutional certiorari
are set forth in rule 9.120; and supreme court direct review of
administrative action on writs of certiorari is governed by rule
9.100. This rule governs proceedings invoking the supreme court’s
jurisdiction to review an interlocutory order passing on a matter
where, on final judgment, a direct appeal would lie in the supreme
court. The procedures set forth in this rule implement the supreme
court’s decision in Burnsed v. Seaboard Coastline R.R., 290 So. 2d
13 (Fla. 1974), that such interlocutory review rests solely within its
discretionary certiorari jurisdiction under article V, section 3(b)(3),
Florida Constitution, and that its jurisdiction would be exercised
only when, on the peculiar circumstances of a particular case, the
public interest required it. This rule abolishes the wasteful current
practice in such cases of following the procedures governing
appeals, with the supreme court treating such appeals as petitions
for the writ of certiorari. This rule requires that these cases be
prosecuted as petitions for the writ of certiorari.
This rule also provides the procedures necessary to implement
the Administrative Procedure Act, section 120.68(1), Florida
Statutes (Supp. 1976), which provides for judicial review of non-
final agency action “if review of the final agency decision would not
provide an adequate remedy.” It was the opinion of the advisory
committee that such a right of review is guaranteed by the statute
and is not dependent on a court rule, because article V, section
4(b)(2), Florida Constitution provides for legislative grants of
jurisdiction to the district courts to review administrative action
without regard to the finality of that action. The advisory committee
was also of the view that the right of review guaranteed by the
statute is no broader than the generally available common law writ
of certiorari, although the statutory remedy would prevent resort to
an extraordinary writ.
Subdivisions (b) and (c) set forth the procedure for
commencing an extraordinary writ proceeding. The time for filing a
petition for common law certiorari is jurisdictional. If common law
certiorari is sought to review an order issued by a lower tribunal
consisting of more than 1 person, a copy of the petition should be
furnished to the chairperson of that tribunal.
Subdivision (d) sets forth the procedure for appellate review of
orders excluding the press or public from access to proceedings or
records in the lower tribunal. It establishes an entirely new and
independent means of review in the district courts, in recognition of
the decision in English v. McCrary, 348 So. 2d 293 (Fla. 1977), to
the effect that a writ of prohibition is not available as a means to
obtain review of such orders. Copies of the notice must be served on
all parties to the proceeding in the lower tribunal, as well as the
person who, or the chairperson of the agency that, issued the order.
No provision has been made for an automatic stay of
proceedings, but the district court is directed to consider the
appropriateness of a stay immediately on the notice being filed.
Ordinarily an order excluding the press and public will be entered
well in advance of the closed proceedings in the lower tribunal, so
that there will be no interruption of the proceeding by reason of the
appellate review. In the event a challenged order is entered
immediately before or during the course of a proceeding and it
appears that a disruption of the proceeding will be prejudicial to 1
or more parties, the reviewing court on its own motion or at the
request of any party shall determine whether to enter a stay or to
allow the lower tribunal to proceed pending review of the challenged
order. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340
So. 2d 904, 911 (Fla. 1977).
This new provision implements the “strict procedural
safeguards” requirement laid down by the United States Supreme
Court in National Socialist Party of America v. Village of Skokie, 432
U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). In that case the
Court held that state restraints imposed on activities protected by
the First Amendment must be either immediately reviewable or
subject to a stay pending review.
Subdivision (e) sets forth the contents of the initial pleading.
The party seeking relief must file a petition stating the authority by
which the court has jurisdiction of the case, the relevant facts, the
relief sought, and argument supported by citations of authority.
This rule does not allow the petitioner to file a brief. Any argument
or citations of authority that the petitioner desires to present to the
court must be contained in the petition. This change in procedure is
intended to eliminate the wasteful current practice of filing
repetitive petitions and briefs. Under subdivision (g) no record is
required to be filed unless the court so orders, but under
subdivision (e) the petitioner must file an appendix to the petition
containing conformed copies of the order to be reviewed and other
relevant material, including portions of the record, if a record exists.
The appendix should also contain any documents that support the
allegations of fact contained in the petition. A lack of supporting
documents may, of course, be considered by the court in exercising
its discretion not to issue an order to show cause.
Under subdivisions (f), (h), and (i), if the allegations of the
petition, if true, would constitute grounds for relief, the court may
exercise its discretion to issue an order requiring the respondent to
show cause why the requested relief should not be granted. A single
responsive pleading (without a brief) may then be served,
accompanied by a supplemental appendix, within the time period
set by the court in its order to show cause. The petitioner is then
allowed 20 days to serve a reply and supplemental appendix, unless
the court sets another time. It should be noted that the times for
response and reply are computed by reference to service rather than
filing. This practice is consistent throughout these rules except for
initial, jurisdictional filings. The emphasis on service, of course,
does not relieve counsel of the responsibility for filing original
documents with the court as required by rule 9.420(b); it merely
affects the time measurements.
Except as provided automatically under subdivision (f), a stay
pending resolution of the original proceeding may be obtained
under rule 9.310.
Transmittal of the record under order of the court under
subdivision (g) shall be in accordance with the instructions and
times set forth in the order.
1980 Amendment. The rule was amended by deleting its
reference to former rule 9.030(a)(2)(B) to reflect the 1980 revisions
to article V, section 3(b), Florida Constitution that eliminated
supreme court review by certiorari of non-final orders that would
have been appealable if they had been final orders. The procedures
applicable to discretionary supreme court review of district court
decisions under rule 9.030(a)(2)(A) are governed by rule 9.120. The
procedures applicable to supreme court discretionary review of trial
court orders and judgments certified by the district courts under
rule 9.030(a)(2)(B) are set forth in rule 9.125.
Subdivision (d) was amended to delete references to the
district courts of appeal as the proper court for review of orders
excluding the press and public, because the appropriate court could
also be a circuit court or the supreme court.
1992 Amendment. Subdivision (b) was amended to add 2
provisions clarifying designation of parties to original proceedings.
The first change eliminates the practice of bringing original
proceedings on the relation of the state and instead requires that if
a private right is being enforced, an action must be brought in the
names of the parties. Second, this subdivision now requires that all
parties not named as petitioners be included in the style as
respondents, consistent with rules 9.020(f)(3) and (f)(4).
Subdivision (c) was amended to eliminate the practice of
naming lower court judges, members of administrative bodies, and
hearing officers as respondents in petitions for certiorari and for
review of non-final agency action. Such individuals still are to be
served a copy of the petition, but the amendment is to eliminate any
suggestion that they are parties or adverse to the petitioner.
Subdivision (c) also was amended to reflect that review of final
administrative action, taken by local government agencies, boards,
and commissions acting in a quasi-judicial capacity, is subject to
the requirement that the petition for writ of certiorari be filed within
30 days of rendition of the order to be reviewed.
Subdivision (e) was amended to require that the petition, the
jurisdictional document, identify all parties on each side to assist
the court in identifying any potential conflicts and to identify all
parties to the proceeding as required by subdivision (b) of this rule.
Additionally, this subdivision was amended to require, consistent
with rule 9.210(b)(3), that the petition make references to the
appropriate pages of the appendix that is required to accompany
the petition.
Subdivision (f) was amended to add the existing requirement
in the law that a petition must demonstrate not only that there has
been a departure from the essential requirements of law, but also
that that departure will cause material injury for which there is no
adequate remedy by appeal. This subdivision, without amendment,
suggested that it established a standard other than that recognized
by Florida decisional law.
Subdivision (h) was amended to require that any response, like
the petition, contain references to the appropriate pages of
appendices, consistent with subdivision (f) of this rule and rules
9.210(b)(3) and 9.210(c).
1996 Amendment. The reference to “common law” certiorari
in subdivision (c)(1) was removed so as to make clear that the 30-
day filing limit applies to all petitions for writ of certiorari.
Subdivision (c)(4) is new and pertains to review formerly
available under rule 1.630. It provides that a prisoner’s petition for
extraordinary relief, within the original jurisdiction of the circuit
court under rule 9.030(c)(3) must be filed within 30 days after final
disposition of the prisoner disciplinary proceedings conducted
through the administrative grievance process under chapter 33,
Florida Administrative Code. See Jones v. Florida Department of
Corrections, 615 So. 2d 798 (Fla. 1st DCA 1993).
Subdivision (e) was added, and subsequent subdivisions re-
lettered, in order to alter the procedural requirements placed or
apparently placed on lower court judges in prohibition and
mandamus proceedings. The duty to respond to an Order to Show
Cause is expressly placed on the party opposing the relief requested
in the petition, and any suggestion of a duty to respond on the part
of the lower court judge is removed. The lower court judge retains
the option to file a response. In those circumstances in which a
response from the lower tribunal is desirable, the court may so
order.
Subdivision (f) was added to clarify that in extraordinary
proceedings to review lower tribunal action this rule, and not
Florida Rule of Civil Procedure 1.630, applies and to specify the
duties of the clerk in such proceedings, and to provide a
mechanism for alerting the clerk to the necessity of following these
procedures. If the proceeding before the circuit court is or may be
evidentiary in nature, then the procedures of the Florida Rules of
Civil Procedure should be followed.
1999 Amendment. Page limits were added to impose text
limitations on petitions, responses and replies consistent with the
text limitations applicable to briefs under Rule 9.210.
2010 Amendment. Subdivision (d) is revised to allow review
not only of orders that deny access to records of the judicial branch
or judicial proceedings, but also those orders that deny motions to
seal or otherwise grant access to such records or proceedings
claimed to be confidential. This revision is intended to recognize
and balance the equal importance of the constitutional right of
privacy, which includes confidentiality, and the constitutional right
of access to judicial records and proceedings. The previous rule
allowed review of orders denying access only “if the proceedings or
records are not required by law to be confidential.” This provision is
eliminated because it is unworkable in that such a determination of
what is required by law to be confidential usually concerns the
merits of whether the proceedings or records should be confidential
in the first instance. Outer time limits for seeking review are added.
Subdivision (d)(2) is revised to provide continued confidentiality of
judicial proceedings and records to which the order under review
has granted access upon the filing of a motion to stay that order
until the court rules on the motion to stay. The former subdivision
(d)(3) concerning oral argument is deleted as unnecessary in light of
Rule 9.320. New subdivision (d)(3) is a recognition of the public
policy that favors expedited review of orders denying access and the
provision for expedited review in Florida Rule of Judicial
Administration 2.420.
2010 Note. As provided in Rule 9.040, request to determine
the confidentiality of appellate court records are governed by Florida
Rule of Judicial Administration 2.420.
2020 Amendment. Page limits for computer-generated
petitions, responses, and replies were converted to word counts.
Court Commentary
2000. As to computer-generated petitions, responses, and
replies, strict font requirements were imposed in subdivision (l) for
at least three reasons:
First and foremost, appellate petitions, responses, and replies
are public records that the people have a right to inspect. The clear
policy of the Florida Supreme Court is that advances in technology
should benefit the people whenever possible by lowering financial
and physical barriers to public record inspection. The Court’s
eventual goal is to make all public records widely and readily
available, especially via the Internet. Unlike paper documents,
electronic documents on the Internet will not display properly on all
computers if they are set in fonts that are unusual. In some
instances, such electronic documents may even be unreadable.
Thus, the Court adopted the policy that all computer-generated
appellate petitions, responses, and replies be filed in one of two
fonts—either Times New Roman 14-point or Courier New 12-point—
that are commonplace on computers with Internet connections.
This step will help ensure that the right to inspect public records on
the Internet will be genuinely available to the largest number of
people.
Second, Florida’s court system as a whole is working toward
the day when electronic filing of all court documents will be an
everyday reality. Though the technology involved in electronic filing
is changing rapidly, it is clear that the Internet is the single most
significant factor influencing the development of this technology.
Electronic filing must be compatible with Internet standards as they
evolve over time. It is imperative for the legal profession to become
accustomed to using electronic document formats that are most
consistent with the Internet.
Third, the proliferation of vast new varieties of fonts in recent
years poses a real threat that page-limitation rules can be
circumvented through computerized typesetting. The only way to
prevent this is to establish an enforceable rule on standards for font
use. The subject font requirements are most consistent with this
purpose and the other two purposes noted above.
Subdivision (l) was also amended to require that immediately
after the certificate of service in computer-generated petitions,
responses, and replies, counsel (or the party if unrepresented) shall
sign a certificate of compliance with the font standards set forth in
this rule for computer-generated petitions, responses, and replies.
RULE 9.110 cases. APPEAL PROCEEDINGS TO REVIEW FINAL
ORDERS OF LOWER TRIBUNALS AND ORDERS
GRANTING NEW TRIAL IN JURY AND NONJURY
CASES
(a) Applicability. This rule applies to those proceedings
that:
(1) invoke the appeal jurisdiction of the courts
described in rules 9.030(a)(1), (b)(1)(A), and (c)(1)(A);
(2) seek review of administrative action described in
rules 9.030(b)(1)(C) and (c)(1)(C); and
(3) seek review of orders granting a new trial in jury
and nonjury civil and criminal cases described in rules 9.130(a)(4)
and 9.140(c)(1)(C).
(b) Commencement. Jurisdiction of the court under this
rule must be invoked by filing a notice with the clerk of the lower
tribunal within 30 days of rendition of the order to be reviewed,
except as provided in rule 9.140(c)(3).
(c) Exception; Administrative Action. In an appeal to
review final orders of lower administrative tribunals, the appellant
must file the notice with the clerk of the lower administrative
tribunal within 30 days of rendition of the order to be reviewed, and
must also file a copy of the notice, accompanied by any filing fees
prescribed by law, with the clerk of the court.
(d) Notice of Appeal. The notice of appeal must be
substantially in the form prescribed by rule 9.900(a). The caption
must contain the name of the lower tribunal, the name and
designation of at least 1 party on each side, and the case number in
the lower tribunal. The notice must contain the name of the court to
which the appeal is taken, the date of rendition, and the nature of
the order to be reviewed. Except in criminal cases, a conformed
copy of the order or orders designated in the notice of appeal must
be attached to the notice together with any order entered on a
timely motion postponing rendition of the order or orders appealed.
If a motion postponing rendition under rule 9.020(h) is pending
when the notice of appeal is filed, the notice of appeal must indicate
the pendency of such a motion and the date it was filed. Within 10
days of either withdrawal of such a motion or rendition of the order
being appealed, the appellant must file in the court a notice
indicating that the motion has been withdrawn or a conformed copy
of the signed, written order disposing of the motion postponing
rendition. The notice must be accompanied by any required filing
fee except as provided in rule 9.430 for proceedings by indigents.
(e) Record. Within 50 days of filing the notice, the clerk of
the lower tribunal must prepare the record prescribed by rule 9.200
and serve copies of the index on all parties. Within 60 days of filing
the notice, the clerk of the lower tribunal must electronically
transmit the record to the court or file a notice of inability to
complete or transmit the record, specifying the reason. Any notice
filed must be served on all parties and, as necessary, on any court
reporter.
(f) Briefs. The appellant’s initial brief must be served within
70 days of filing the notice. Additional briefs must be served as
prescribed by rule 9.210.
(g) Cross-Appeal. An appellee may cross-appeal by serving a
notice within 15 days of service of the appellant’s timely filed notice
of appeal or within the time prescribed for filing a notice of appeal,
whichever is later. The notice of cross-appeal must be filed either
before service or immediately thereafter in the same manner as the
notice of appeal. The notice of cross-appeal must be accompanied
by any required filing fee except as provided in rule 9.430 for
proceedings by indigents.
(h) Scope of Review. Except as provided in subdivision (k),
the court may review any ruling or matter occurring before filing of
the notice. Multiple final orders may be reviewed by a single notice,
if the notice is timely filed as to each such order.
(i) Exception; Bond Validation Proceedings. If the appeal
is from an order in a proceeding to validate bonds or certificates of
indebtedness, the record will not be transmitted unless ordered by
the supreme court. The appellant’s initial brief, accompanied by an
appendix as prescribed by rule 9.220, must be served within 20
days of filing the notice. Additional briefs must be served as
prescribed by rule 9.210.
(j) Exception; Appeal Proceedings from District Courts of
Appeal. If the appeal is from an order of a district court of appeal,
the clerk of the district court of appeal must electronically transmit
the record to the court within 60 days of filing the notice. The
appellant’s initial brief must be served within 20 days of filing the
notice. Additional briefs must be served as prescribed by rule 9.210.
(k) Review of Partial Final Judgments. Except as
otherwise provided herein, partial final judgments are reviewable
either on appeal from the partial final judgment or on appeal from
the final judgment in the entire case. A partial final judgment, other
than one that disposes of an entire case as to any party, is one that
disposes of a separate and distinct cause of action that is not
interdependent with other pleaded claims. If a partial final
judgment totally disposes of an entire case as to any party, it must
be appealed within 30 days of rendition. The scope of review of a
partial final judgment may include any ruling or matter occurring
before filing of the notice of appeal so long as such ruling or matter
is directly related to an aspect of the partial final judgment under
review.
(l) Premature Appeals. Except as provided in rule 9.020(h),
if a notice of appeal is filed before rendition of a final order, the
appeal will be subject to dismissal as premature. However, the
lower tribunal retains jurisdiction to render a final order, and if a
final order is rendered before dismissal of the premature appeal, the
premature notice of appeal will vest jurisdiction in the court to
review the final order. Before dismissal, the court in its discretion
may grant the parties additional time to obtain a final order from
the lower tribunal.
(m) Exception; Insurance Coverage Appeals. Judgments
that determine the existence or nonexistence of insurance coverage
in cases in which a claim has been made against an insured and
coverage thereof is disputed by the insurer may be reviewed either
by the method prescribed in this rule or that in rule 9.130.
Committee Notes
1977 Amendment. This rule replaces former rules 3.1, 3.5,
4.1, 4.3, 4.4, and 4.7. It applies when (1) a final order has been
entered by a court or administrative agency; (2) a motion for a new
trial in a jury case is granted; or (3) a motion for rehearing in a non-
jury case is granted and the lower tribunal orders new testimony. It
should be noted that certain other non-final orders entered after the
final order are reviewable under the procedure set forth in rule
9.130. This rule does not apply to review proceedings in such cases.
Except to the extent of conflict with rule 9.140 governing
appeals in criminal cases, this rule governs: (1) appeals as of right
to the supreme court; (2) certiorari proceedings before the supreme
court seeking direct review of administrative action (for example,
Industrial Relations Commission and Public Service Commission);
(3) appeals as of right to a district court of appeal, including
petitions for review of administrative action under the
Administrative Procedure Act, section 120.68, Florida Statutes
(Supp. 1976); (4) appeals as of right to a circuit court, including
review of administrative action if provided by law.
This rule is intended to clarify the procedure for review of
orders granting a new trial. Rules 9.130(a)(4) and 9.140(c)(1)(C)
authorize the appeal of orders granting a motion for new trial.
Those rules supersede Clement v. Aztec Sales, Inc., 297 So. 2d 1
(Fla. 1974), and are consistent with the decision there. Under
subdivision (h) of this rule the scope of review of the court is not
necessarily limited to the order granting a new trial. The supreme
court has held that “appeals taken from new trial orders shall be
treated as appeals from final judgments to the extent possible.”
Bowen v. Willard, 340 So. 2d 110, 112 (Fla. 1976). This rule
implements that decision.
Subdivisions (b) and (c) establish the procedure for
commencing an appeal proceeding. Within 30 days of the rendition
of the final order the appellant must file 2 copies of the notice of
appeal, accompanied by the appropriate fees, with the clerk of the
lower tribunal; except that if review of administrative action is
sought, 1 copy of the notice and the applicable fees must be filed in
the court. Failure to file any notice within the 30-day period
constitutes an irremediable jurisdictional defect, but the second
copy and fees may be filed after the 30-day period, subject to
sanctions imposed by the court. See Williams v. State, 324 So. 2d
74 (Fla. 1975); Fla. R. App. P. 9.040(h).
Subdivision (d) sets forth the contents of the notice and
eliminates the requirement of the former rule that the notice show
the place of recordation of the order to be reviewed. The rule
requires substantial compliance with the form approved by the
supreme court. The date of rendition of the order for which review is
sought must appear on the face of the notice. See the definition of
“rendition” in Florida Rule of Appellate Procedure 9.020, and see
the judicial construction of “rendition” for an administrative rule in
Florida Admin. Comm’n v. Judges of the District Court, 351 So. 2d
712 (Fla. 1977), on review of Riley-Field Co. v. Askew, 336 So. 2d
383 (Fla. 1st DCA 1976). This requirement is intended to allow the
clerk of the court to determine the timeliness of the notice from its
face. The advisory committee intended that defects in the notice
would not be jurisdictional or grounds for disposition unless the
complaining party was substantially prejudiced.
This rule works significant changes in the review of final
administrative action. The former rules required that a traditional
petition for the writ of certiorari be filed if supreme court review was
appropriate, and the practice under the Administrative Procedure
Act, section 120.68, Florida Statutes (Supp. 1976), has been for the
“petition for review” to be substantially similar to a petition for the
writ of certiorari. See Yamaha Int’l Corp. v. Ehrman, 318 So. 2d 196
(Fla. 1st DCA 1975). This rule eliminates the need for true petitions
in such cases. Instead, a simple notice is filed, to be followed later
by briefs. It is intended that the notice constitute the petition
required in section 120.68(2), Florida Statutes (Supp. 1976). There
is no conflict with the statute because the substance of the review
proceeding remains controlled by the statute, and the legislature
directed that review be under the procedures set forth in these
rules. Because it is a requirement of rendition that an order be
written and filed, this rule supersedes Shevin ex rel. State v. Public
Service Comm’n, 333 So. 2d 9 (Fla. 1976), and School Bd. v. Malbon,
341 So. 2d 523 (Fla. 2d DCA 1977), to the extent that those
decisions assume that reduction of an order to writing is
unnecessary for judicial review.
This rule is not intended to affect the discretionary nature of
direct supreme court review of administrative action taken under
the certiorari jurisdiction of that court set forth in article V, section
3(b)(3), Florida Constitution. Such proceedings remain in certiorari
with the only change being to replace wasteful, repetitive petitions
for the writ of certiorari with concise notices followed at a later date
by briefs. The parties to such actions should be designated as
“petitioner” and “respondent” despite the use of the terms
“appellant” and “appellee” in this rule. See commentary, Fla. R.
App. P. 9.020.
Subdivisions (e), (f), and (g) set the times for preparation of the
record, serving copies of the index on the parties, serving briefs,
and serving notices of cross-appeal. Provision for cross-appeal
notices has been made to replace the cross-assignments of error
eliminated by these rules. In certiorari proceedings governed by this
rule the term “cross- appeal” should be read as equivalent to “cross-
petition.” It should be noted that if time is measured by service, rule
9.420(b) requires filing to be made before service or immediately
thereafter.
Subdivision (h) permits a party to file a single notice of appeal
if a single proceeding in the lower tribunal, whether criminal or
civil, results in more than 1 final judgment and an appeal of more
than 1 is sought. This rule is intended to further the policies
underlying the decisions of the supreme court in Scheel v. Advance
Marketing Consultants, Inc., 277 So. 2d 773 (Fla. 1973), and
Hollimon v. State, 232 So. 2d 394 (Fla. 1970). This rule does not
authorize the appeal of multiple final judgments unless otherwise
proper as to each. If a prematurely filed notice is held in abeyance
in accordance with Williams v. State, 324 So. 2d 74 (Fla. 1975), the
date of filing is intended to be the date the notice becomes effective.
Subdivision (i) provides an expedited procedure in appeals as
of right to the supreme court in bond validation proceedings. An
appendix is mandatory.
Subdivision (j) provides for an expedited procedure in appeals
as of right to the supreme court from an order of a district court of
appeal.
1980 Amendment. The rule has been amended to incorporate
changes in rule 9.030 and to reflect the abolition of supreme court
jurisdiction to review, if provided by general law, final orders of trial
courts imposing sentences of life imprisonment.
The reference indicated (2) in the second paragraph of this
committee note for 1977 amendment should be disregarded. See
amended rule 9.030(a)(1)(B)(ii) and accompanying committee note.
1984 Amendment. Subdivision (k) was added to remedy a
pitfall in the application of case law under Mendez v. West Flagler
Family Association, 303 So. 2d 1 (Fla. 1974). Appeals may now be
taken immediately or delayed until the end of the entire case, under
the rationale of Mendez.
1992 Amendment. Subdivision (d) was amended to require
that the appellant, except in criminal cases, attach to its notice of
appeal a conformed copy of any orders designated in the notice of
appeal, along with any orders on motions that postponed the
rendition of orders appealed. This amendment is designed to assist
the clerk in determining the nature and type of order being
appealed and the timeliness of any such appeal.
Subdivision (m) was added to clarify the effect of a notice of
appeal filed by a party before the lower court renders a final
appealable order. Under this subdivision, such a notice of appeal is
subject to dismissal as premature, but a final order rendered before
the dismissal of the appeal will vest the appellate court with
jurisdiction to review that final order. It further provides that the
appellate court may relinquish jurisdiction or otherwise allow the
lower court to render such a final order before dismissal of the
appeal. If the only motion that is delaying rendition has been filed
by the party filing the notice of appeal, under rule 9.020(g)(3), such
motion is deemed abandoned and the final order is deemed
rendered by the filing of a notice of appeal.
1996 Amendment. The addition of new subdivision (a)(2) is a
restatement of former Florida Rule of Probate Procedure 5.100, and
is not intended to change the definition of final order for appellate
purposes. It recognizes that in probate and guardianship
proceedings it is not unusual to have several final orders entered
during the course of the proceeding that address many different
issues and involve many different persons. An order of the circuit
court that determines a right, an obligation, or the standing of an
interested person as defined in the Florida Probate Code may be
appealed before the administration of the probate or guardianship
is complete and the fiduciary is discharged.
Subdivision (c) was amended to reflect that in appeals of
administrative orders, the appellate court filing fees should be filed
in the appellate court, not the administrative tribunal.
Subdivision (n) was added by the committee in response to the
opinion in Canal Insurance Co. v. Reed, 666 So. 2d 888 (Fla. 1996),
suggesting that the Appellate Court Rules Committee consider an
appropriate method for providing expedited review of these cases to
avoid unnecessary delays in the final resolution of the underlying
actions. Expedited review in the manner provided in rule 9.130 is
available for such judgments in cases where a claim against the
insured is pending and early resolution of the coverage issue is in
the best interest of the parties. The notice of appeal should identify
whether a party is seeking review pursuant to the procedure
provided in this rule or in rule 9.130.
2006 Amendment. Rule 9.110(n) has been amended to clarify
that the word “clerk” in the first sentence of the rule refers to the
clerk of the lower tribunal. The amendment also permits the minor
to ask for leave to file a brief or to request oral argument. The
amendment clarifies that the district court does not grant the
minor’s petition, but rather may reverse the circuit court’s dismissal
of the petition.
2010 Note. As provided in Rule 9.040, requests to determine
the confidentiality of appellate court records are governed by Florida
Rule of Judicial Administration 2.420.
2014 Amendments. The amendment to subdivision (l) is
intended to clarify that it is neither necessary nor appropriate to
request a relinquishment of jurisdiction from the court to enable
the lower tribunal to render a final order. Subdivision (n) has been
moved to rule 9.147.
2018 Amendment. Subdivision (k) was amended to clarify
that subdivision (h) does not expand the scope of review of partial
final judgments to include rulings that are not directly related to
and an aspect of the final order under review. E.g., Cygler v.
Presjack, 667 So. 2d 458, 461 (Fla. 4th DCA 1996).
2020 Amendment. The requirement to notify the court of a
motion postponing rendition is not meant to encourage the filing of
a notice of appeal before rendition.
Court Commentary
2003 Amendment. Subdivision (l) was deleted to reflect the
holding in North Florida Women’s Health & Counseling Services, Inc.
v. State, 28 Fla. L. Weekly S549 [866 So. 2d 612] (Fla. July 10,
2003).
RULE 9.120 cases. DISCRETIONARY PROCEEDINGS TO REVIEW
DECISIONS OF DISTRICT COURTS OF APPEAL
(a) Applicability. This rule applies to those proceedings that
invoke the discretionary jurisdiction of the supreme court described
in rule 9.030(a)(2)(A).
(b) Commencement. The jurisdiction of the supreme court
described in rule 9.030(a)(2)(A) must be invoked by filing a notice
with the clerk of the district court of appeal within 30 days of
rendition of the order to be reviewed.
(c) Notice. The notice must be substantially in the form
prescribed by rule 9.900. The caption must contain the name of the
lower tribunal, the name and designation of at least 1 party on each
side, and the case number in the lower tribunal. The notice must
contain the date of rendition of the order to be reviewed and the
basis for invoking the jurisdiction of the supreme court. The notice
must be accompanied by any required filing fee except as provided
in rule 9.430 for proceedings by indigents.
(d) Briefs on Jurisdiction. The petitioner’s brief, with the
argument section limited solely to the issue of the supreme court’s
jurisdiction, and accompanied by an appendix containing only a
conformed copy of the decision of the district court of appeal, must
be served within 10 days of the filing of the notice to invoke the
court’s discretionary jurisdiction. The respondent’s brief on
jurisdiction must be served within 30 days after service of
petitioner’s brief. Formal requirements for both briefs are specified
in rule 9.210. No reply brief will be permitted.
(e) Accepting or Postponing Decision on Jurisdiction;
Record. If the supreme court accepts or postpones decision on
jurisdiction, the court will so order and advise the parties and the
clerk of the district court of appeal. Within 25 days thereafter or
such other time set by the court, the clerk of the district court of
appeal must electronically transmit the record. The clerk of the
district court of appeal must transmit separate Portable Document
Format (“PDF”) files of:
(1) the contents of the record as described in rule
9.200(a) and (c);
(2) the transcript as described in rule 9.200(b); and
(3) the documents filed in the district court in the
record on appeal format described in rule 9.200(d)(1).
(f) Additional Issues on Review or Cross-Review. As
specified in rule 9.210, if the petitioner or respondent intends to
raise issues for review in the supreme court independent of those
on which jurisdiction is based, the petitioner or respondent must
identify those issues in the statement of the issues included in their
brief on jurisdiction.
(g) Briefs on Merits. Within 35 days of rendition of the
order accepting or postponing decision on jurisdiction, the
petitioner must serve the initial brief on the merits. Additional
briefs, including any briefs on cross-review, must be served as
prescribed by rule 9.210.
Committee Notes
1977 Amendment. This rule replaces former rule 4.5(c) and
governs all certiorari proceedings to review final decisions of the
district courts. Certiorari proceedings to review interlocutory orders
of the district courts if supreme court jurisdiction exists under
article V, section 3(b)(3), Florida Constitution are governed by rule
9.100.
Subdivision (b) sets forth the manner in which certiorari
proceedings in the supreme court are to be commenced. Petitions
for the writ are abolished and replaced by a simple notice to be
followed by briefs. Two copies of the notice, which must
substantially comply with the form approved by the supreme court,
are to be filed with the clerk of the district court within 30 days of
rendition along with the requisite fees. Failure to timely file the fees
is not jurisdictional.
Subdivision (c) sets forth the contents of the notice. The
requirement that the notice state the date of rendition, as defined in
rule 9.020, is intended to permit the clerk of the court to determine
timeliness from the face of the notice. The statement of the basis for
jurisdiction should be a concise reference to whether the order
sought to be reviewed (1) conflicts with other Florida appellate
decisions; (2) affects a class of constitutional or state officers; or (3)
involves a question of great public interest certified by the district
court.
Subdivision (d) establishes the time for filing jurisdictional
briefs and prescribes their content. If supreme court jurisdiction is
based on certification of a question of great public interest, no
jurisdictional briefs are permitted. Briefs on the merits in such
cases are to be prepared in the same manner as in other cases.
Briefs on the merits are to be served within the time provided after
the court has ruled that it will accept jurisdiction or has ruled that
it will postpone decision on jurisdiction.
The jurisdictional brief should be a short, concise statement of
the grounds for invoking jurisdiction and the necessary facts. It is
not appropriate to argue the merits of the substantive issues
involved in the case or discuss any matters not relevant to the
threshold jurisdictional issue. The petitioner may wish to include a
very short statement of why the supreme court should exercise its
discretion and entertain the case on the merits if it finds it does
have certiorari jurisdiction. An appendix must be filed containing a
conformed copy of the decision of the district court. If the decision
of the district court was without opinion, or otherwise does not set
forth the basis of decision with sufficient clarity to enable the
supreme court to determine whether grounds for jurisdiction exist,
a conformed copy of the order of the trial court should also be
included in the appendix.
Subdivisions (e) and (f) provide that within 60 days of the date
of the order accepting jurisdiction, or postponing decision on
jurisdiction, the clerk of the district court must transmit the record
to the court. The petitioner has 20 days from the date of the order
to serve the initial brief on the merits. Other briefs may then be
served in accordance with rule 9.210. Briefs that are served must
be filed in accordance with rule 9.420.
It should be noted that the automatic stay provided by former
rule 4.5(c)(6) has been abolished because it encouraged the filing of
frivolous petitions and was regularly abused. A stay pending review
may be obtained under rule 9.310. If a stay has been ordered
pending appeal to a district court, it remains effective under rule
9.310(e) unless the mandate issues or the district court vacates it.
The advisory committee was of the view that the district courts
should permit such stays only when essential. Factors to be
considered are the likelihood that jurisdiction will be accepted by
the supreme court, the likelihood of ultimate success on the merits,
the likelihood of harm if no stay is granted, and the remediable
quality of any such harm.
1980 Amendment. The rule has been amended to reflect the
1980 revisions to article V, section 3, Florida Constitution creating
the additional categories of certifications by the district courts to
the supreme court enumerated in rule 9.030(a)(2)(A).
District court decisions that (a) expressly declare valid a state
statute, (b) expressly construe a provision of the state or federal
constitution, (c) expressly affect a class of constitutional or state
officers, (d) expressly and directly conflict with a decision of another
district court or the supreme court on the same point of law, (e)
pass upon a question certified to be of great public importance, or
(f) are certified to be in direct conflict with decisions of other district
courts, are reviewed according to the procedures set forth in this
rule. No jurisdictional briefs are permitted if jurisdiction is based on
certification of a question of great public importance or certification
that the decision is in direct conflict with a decision of another
district court.
The mandatory appendix must contain a copy of the district
court decision sought to be reviewed and should be prepared in
accordance with rule 9.220.
Supreme court review of trial court orders and judgments
certified by the district court under rule 9.030(a)(2)(B) is governed
by the procedures set forth in rule 9.125.
Reply briefs from petitioners are prohibited, and the court will
decide whether to accept the case for review solely on the basis of
petitioner’s initial and respondent’s responsive jurisdictional briefs.
1992 Amendment. Subdivision (d) was amended to provide
that jurisdictional briefs must conform to the same requirements
set forth in rule 9.210.
RULE 9.125 cases. REVIEW OF TRIAL COURT ORDERS AND
JUDGMENTS CERTIFIED BY THE DISTRICT
COURTS OF APPEAL AS REQUIRING IMMEDIATE
RESOLUTION BY THE SUPREME COURT OF
FLORIDA
(a) Applicability. This rule applies to any order or judgment
of a trial court that has been certified by the district court of appeal
to require immediate resolution by the supreme court because the
issues pending in the district court of appeal are of great public
importance or have a great effect on the proper administration of
justice throughout the state. The district court of appeal may make
such certification on its own motion or on suggestion by a party.
(b) Commencement. The jurisdiction of the supreme court
is invoked on rendition of the certificate by the district court of
appeal.
(c) Suggestion. Any party may file with the district court of
appeal and serve on the parties a suggestion that the order to be
reviewed should be certified by the district court of appeal to the
supreme court. The suggestion shall be substantially in the form
prescribed by this rule and shall be filed within 10 days from the
filing of the notice of appeal.
(d) Response. Any party may file a response within 10 days
of the service of the suggestion.
(e) Form. The suggestion shall not exceed 1,300 words if
computer-generated or 5 pages if handwritten or typewritten and
shall contain all of the following elements:
(1) a statement of why the appeal requires immediate
resolution by the supreme court;
(2) a statement of why the appeal:
(A) is of great public importance; or
(B) 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 supreme court and (a) is of great public
importance, or (b) will have a great effect on the administration
of justice throughout the state; and
(4) an appendix containing a conformed copy of the
order to be reviewed.
(f) Effect of Suggestion. The district court of appeal shall
not be required to rule on the suggestion and neither the filing of a
suggestion nor the rendition by the district court of appeal of its
certificate shall alter the applicable time limitations or place of
filing. If an order is rendered granting or denying certification, no
rehearing shall be permitted.
(g) Procedure When the Supreme Court of Florida
Accepts Jurisdiction. The jurisdiction of the supreme court
attaches on rendition of the order accepting jurisdiction. If the
supreme court accepts jurisdiction, it shall so order and advise the
parties, the clerk of the district court of appeal, and the clerk of the
lower tribunal. The clerk of the court in possession of the record
shall electronically transmit the record in the case to the supreme
court within 10 days thereafter. The supreme court shall issue a
briefing schedule and all documents formerly required to be filed in
the district court shall be filed in the supreme court. If the supreme
court denies jurisdiction, it shall so order and advise the parties
and the clerk of the district court of appeal.
Committee Notes
1980 Amendment. This rule is entirely new and governs all
discretionary proceedings to review trial court orders or judgments
that have been certified by the district court under rule
9.030(a)(2)(B) to require immediate resolution by the supreme court
and to be of great public importance or to have a great effect on the
proper administration of justice throughout the state. Final and
non-final orders are covered by this rule. Discretionary review of
other district court decisions if supreme court jurisdiction exists
under rule 9.030(a)(2)(A) is governed by rule 9.120.
Subdivision (b) makes clear that certification by the district
court is self-executing.
Subdivision (c) sets forth the manner in which a party may file
a suggestion that the order to be reviewed should be certified by the
district court to the supreme court and requires the suggestion be
filed within 10 days from the filing of the notice of appeal. It is
contemplated that suggestions under this rule will be rare. A
suggestion should be filed only if, under the peculiar circumstances
of a case, all the elements contained in subdivision (e) of the rule
are present.
Subdivision (d) provides that any other party may file a
response to a suggestion within 5 days of the service of the
suggestion.
Subdivision (e) provides for the form of the suggestion. All
suggestions must be substantially in this form. The suggestion is
limited to 5 pages and must contain (1) a statement of why the
appeal requires immediate resolution by the supreme court, and (2)
a statement of why the appeal either is of great public importance
or will have a great effect on the proper administration of justice
throughout the state. The suggestion must be accompanied by an
appendix containing a copy of the order to be reviewed. The
suggestion also must include a certificate signed by the attorney in
the form appearing in the rule.
To ensure that no proceeding is delayed because of this rule,
subdivisions (f) and (g) provide that the filing of a suggestion will not
alter the applicable time limitations or the place of filing. The
district court shall not be required to rule on a suggestion. The
parties should follow the time limitations contained in the rule
through which jurisdiction of the district court was invoked. See
rules 9.100, 9.110, 9.130, and 9.140.
2020 Amendments. The page limit for a computer-generated
suggestion was converted to a word count.
RULE 9.130 cases. PROCEEDINGS TO REVIEW NONFINAL ORDERS
AND SPECIFIED FINAL ORDERS
(a) Applicability.
(1) This rule applies to appeals to the district courts of
appeal of the nonfinal orders authorized herein and to appeals to
the circuit court of nonfinal orders when provided by general law.
Review of other nonfinal orders in such courts and nonfinal
administrative action shall be by the method prescribed by rule
9.100.
(2) Appeals of nonfinal orders in criminal cases shall be
as prescribed by rule 9.140.
(3) Appeals to the district courts of appeal of nonfinal
orders are limited to those that:
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve
injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) the jurisdiction of the person;
(ii) 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;
(iii) in family law matters:
a. the right to immediate monetary
relief;
b. the rights or obligations of a party
regarding child custody or time-sharing under a parenting plan; or
c. that a marital agreement is invalid
in its entirety;
(iv) the entitlement of a party to arbitration,
or to an appraisal under an insurance policy;
(v) that, as a matter of law, a party is not
entitled to workers’ compensation immunity;
(vi) whether to certify a class;
(vii) that a governmental entity has taken
action that has inordinately burdened real property within the
meaning of section 70.001(6)(a), Florida Statutes;
(viii) the issue of forum non conveniens;
(ix) that, as a matter of law, a settlement
agreement is unenforceable, is set aside, or never existed; or
(x) that a permanent guardianship shall be
established for a dependent child pursuant to section 39.6221,
Florida Statutes;
(D) grant or deny the appointment of a receiver, or
terminate or refuse to terminate a receivership;
(E) grant or deny a motion to disqualify counsel;
(F) deny a motion that:
(i) asserts entitlement to absolute or
qualified immunity in a civil rights claim arising under federal law;
(ii) asserts entitlement to immunity under
section 768.28(9), Florida Statutes; or
(iii) asserts entitlement to sovereign
immunity; or
(G) grant or deny a motion for leave to amend to
assert a claim for punitive damages; or
(H) deny a motion to dismiss on the basis of the
qualifications of a corroborating expert witness under subsections
766.102(5)–(9), and (12), Florida Statutes.
(4) Orders disposing of motions for rehearing or
motions that suspend rendition are not reviewable separately from
a review of the final order; provided that orders granting motions for
new trial in jury and nonjury cases are reviewable by the method
prescribed in rule 9.110.
(5) Orders entered on an authorized and timely motion
for relief from judgment are reviewable by the method prescribed by
this rule. Motions for rehearing directed to these orders are not
authorized under these rules and therefore will not toll the time for
filing a notice of appeal.
(b) Commencement. Jurisdiction of the court under
subdivisions (a)(3)–(a)(5) of this rule shall be invoked by filing a
notice with the clerk of the lower tribunal within 30 days of
rendition of the order to be reviewed.
(c) Notice. The notice, designated as a notice of appeal of
nonfinal order, shall be substantially in the form prescribed by rule
9.900(c). Except in criminal cases, a conformed copy of the order or
orders designated in the notice of appeal shall be attached to the
notice. The notice must be accompanied by any required filing fee
except as provided in rule 9.430 for proceedings by indigents.
(d) Record. A record shall not be transmitted to the court
unless ordered.
(e) Briefs. The appellant’s initial brief, accompanied by an
appendix as prescribed by rule 9.220, shall be served within 20
days of filing the notice. Additional briefs shall be served as
prescribed by rule 9.210.
(f) Stay of Proceedings. In the absence of a stay, during the
pendency of a review of a nonfinal order, the lower tribunal may
proceed with all matters, including trial or final hearing, except that
the lower tribunal may not render a final order disposing of the
cause pending such review absent leave of the court.
(g) Cross-Appeal. An appellee may cross-appeal the order or
orders designated by the appellant, to review any ruling described
in subdivisions (a)(3)–(a)(5), by serving a notice within 15 days of
service of the appellant’s timely filed notice of appeal or within the
time prescribed for filing a notice of appeal, whichever is later. A
notice of cross-appeal shall be filed either before service or
immediately thereafter in the same manner as the notice of appeal.
The notice of cross-appeal must be accompanied by any required
filing fee except as provided in rule 9.430 for proceedings by
indigents.
(h) Review on Full Appeal. This rule shall not preclude
initial review of a nonfinal order on appeal from the final order in
the cause.
(i) Scope of Review. Multiple nonfinal orders that are listed
in rule 9.130(a)(3) may be reviewed by a single notice if the notice is
timely filed as to each such order.
Committee Notes
1977 Amendment. This rule replaces former rule 4.2 and
substantially alters current practice. This rule applies to review of
all non-final orders, except those entered in criminal cases, and
those specifically governed by rules 9.100 and 9.110.
The advisory committee was aware that the common law writ
of certiorari is available at any time and did not intend to abolish
that writ. However, because that writ provides a remedy only if the
petitioner meets the heavy burden of showing that a clear departure
from the essential requirements of law has resulted in otherwise
irreparable harm, it is extremely rare that erroneous interlocutory
rulings can be corrected by resort to common law certiorari. It is
anticipated that because the most urgent interlocutory orders are
appealable under this rule, there will be very few cases in which
common law certiorari will provide relief. See Taylor v. Board of Pub.
Instruction, 131 So. 2d 504 (Fla. 1st DCA 1961).
Subdivision (a)(3) designates certain instances in which
interlocutory appeals may be prosecuted under the procedures set
forth in this rule. Under these rules there are no mandatory
interlocutory appeals. This rule eliminates interlocutory appeals as
a matter of right from all orders “formerly cognizable in equity,” and
provides for review of certain interlocutory orders based on the
necessity or desirability of expeditious review. Allowable
interlocutory appeals from orders in actions formerly cognizable as
civil actions are specified, and are essentially the same as under
former rule 4.2. Item (A) permits review of orders concerning venue.
Item (C)(i) has been limited to jurisdiction over the person because
the writ of prohibition provides an adequate remedy in cases
involving jurisdiction of the subject matter. Because the purpose of
these items is to eliminate useless labor, the advisory committee is
of the view that stays of proceedings in lower tribunals should be
liberally granted if the interlocutory appeal involves venue or
jurisdiction over the person. Because this rule only applies to civil
cases, item (C)(ii) does not include within its ambit rulings on
motions to suppress seized evidence in criminal cases. Item (C)(ii) is
intended to apply whether the property involved is real or personal.
It applies to such cases as condemnation suits in which a
condemnor is permitted to take possession and title to real property
in advance of final judgment. See ch. 74, Fla. Stat. (1975). Item
(C)(iii) is intended to apply to such matters as temporary child
custody or support, alimony, suit money, and attorneys’ fees. Item
(C)(iv) allows appeals from interlocutory orders that determine
liability in favor of a claimant.
Subdivision (a)(4) grants a right of review if the lower tribunal
grants a motion for new trial whether in a jury or non-jury case.
The procedures set forth in rule 9.110, and not those set forth in
this rule, apply in such cases. This rule has been phrased so that
the granting of rehearing in a non-jury case under Florida Rule of
Civil Procedure 1.530 may not be the subject of an interlocutory
appeal unless the trial judge orders the taking of evidence. Other
non-final orders that postpone rendition are not reviewable in an
independent proceeding. Other non-final orders entered by a lower
tribunal after final order are reviewable and are to be governed by
this rule. Such orders include, for example, an order granting a
motion to vacate default.
Subdivision (a)(5) grants a right of review of orders on motions
seeking relief from a previous court order on the grounds of
mistake, fraud, satisfaction of judgment, or other grounds listed in
Florida Rule of Civil Procedure 1.540.
Subdivision (a)(6) provides that interlocutory review is to be in
the court that would have jurisdiction to review the final order in
the cause as of the time of the interlocutory appeal.
Subdivisions (b) and (c) state the manner for commencing an
interlocutory appeal governed by this rule. Two copies of the notice
must be filed with the clerk of the lower tribunal within 30 days of
rendition of the order. Under rule 9.040(g) the notice and fee must
be transmitted immediately to the court by the clerk of the lower
tribunal.
Subdivision (d) provides for transmittal of the record only on
order of the court. Transmittal should be in accordance with
instructions contained in the order.
Subdivision (e) replaces former rule 4.2(e) and governs the
service of briefs on interlocutory appeals. The time to serve the
appellant’s brief has been reduced to 15 days so as to minimize
interruption of lower tribunal proceedings. The brief must be
accompanied by an appendix containing a conformed copy of the
order to be reviewed and should also contain all relevant portions of
the record.
Subdivision (f) makes clear that unless a stay is granted under
rule 9.310, the lower tribunal is only divested of jurisdiction to
enter a final order disposing of the case. This follows the historical
rule that trial courts are divested of jurisdiction only to the extent
that their actions are under review by an appellate court. Thus, the
lower tribunal has jurisdiction to proceed with matters not before
the court. This rule is intended to resolve the confusion spawned by
De la Portilla v. De la Portilla, 304 So. 2d 116 (Fla. 1974), and its
progeny.
Subdivision (g) was embodied in former rule 4.2(a) and is
intended to make clear that the failure to take an interlocutory
appeal does not constitute a waiver of any sort on appeal of a final
judgment, although an improper ruling might not then constitute
prejudicial error warranting reversal.
1992 Amendment. Subdivisions (a)(3)(C)(vii) and (a)(6) were
added to permit appeals from non-final orders that either granted or
denied a party’s request that a class be certified. The committee was
of the opinion that orders determining the nature of an action and
the extent of the parties before the court were analogous to other
orders reviewable under rule 9.130. Therefore, these 2 subdivisions
were added to the other limited enumeration of orders appealable
by the procedures established in this rule.
Subdivision (a)(3)(D) was added by the committee in response
to the decision in Twin Jay Chambers Partnership v. Suarez, 556 So.
2d 781 (Fla. 2d DCA 1990). It was the opinion of the committee that
orders that deny the appointment of receivers or terminate or refuse
to terminate receiverships are of the same quality as those that
grant the appointment of a receiver. Rather than base the
appealability of such orders on subdivision (a)(3)(C)(ii), the
committee felt it preferable to specifically identify those orders with
respect to a receivership that were non-final orders subject to
appeal by this rule.
Subdivision (c) was amended to require the attachment of a
conformed copy of the order or orders designated in the notice of
appeal consistent with the amendment to rule 9.110(d).
1996 Amendment. The amendment to subdivision (a)(3)(C)(vi)
moves the phrase “as a matter of law” from the end of the
subdivision to its beginning. This is to resolve the confusion
evidenced in Breakers Palm Beach v. Gloger, 646 So. 2d 237 (Fla.
4th DCA 1994), City of Lake Mary v. Franklin, 668 So. 2d 712 (Fla.
5th DCA 1996), and their progeny by clarifying that this subdivision
was not intended to grant a right of nonfinal review if the lower
tribunal denies a motion for summary judgment based on the
existence of a material fact dispute.
Subdivision (a)(3)(C)(viii) was added in response to the
supreme court’s request in Tucker v. Resha, 648 So. 2d 1187 (Fla.
1994). The court directed the committee to propose a new rule
regarding procedures for appeal of orders denying immunity in
federal civil rights cases consistent with federal procedure. Compare
Johnson v. Jones, 115 S. Ct. 2151, 132 L.Ed. 2d 238 (1995), with
Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L.Ed. 2d 411
(1985). The Florida Supreme Court held that such orders are
“subject to interlocutory review to the extent that the order turns on
an issue of law.”
2000 Amendment. The title to this rule was amended to
reflect that some of the review proceedings specified in this rule
may involve review of final orders.
Subdivision (a)(1) was amended to reflect that the appellate
jurisdiction of circuit courts is prescribed by general law and not by
this rule, as clarified in Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994).
Subdivision (a)(3)(C)(iv) allowing review of orders determining
“the issue of liability in favor of a party seeking affirmative relief”
was deleted so that such orders are not appealable until the
conclusion of the case.
Subdivision (a)(7) was deleted because it is superseded by
proposed rule 9.040(b)(2), which determines the appropriate court
to review non-final orders after a change of venue.
2008 Amendment. Subdivision 9.130(a)(3)(C)(ii) was amended
to address a conflict in the case law concerning whether orders
granting, modifying, dissolving, or refusing to grant, modify, or
dissolve garnishments are appealable under this subdivision.
Compare Ramseyer v. Williamson, 639 So. 2d 205 (Fla. 5th DCA
1994) (garnishment order not appealable), with 5361 N. Dixie
Highway v. Capital Bank, 658 So. 2d 1037 (Fla. 4th DCA 1995)
(permitting appeal from garnishment order and acknowledging
conflict). The amendment is not intended to limit or expand the
scope of matters covered under this rule. In that vein, replevin and
attachment were included as examples of similar writs covered by
this rule.
Subdivision (a)(3)(C)(iv) has been amended to clarify that
nonfinal orders determining a party’s entitlement to an appraisal
under an insurance policy are added to the category of nonfinal
orders appealable to the district courts of appeal.
Subdivision 9.130(a)(5) is intended to authorize appeals from
orders entered on motions for relief from judgment that are
specifically contemplated by a specific rule of procedure (e.g., the
current version of Florida Rule of Civil Procedure 1.540, Small
Claims Rule 7.190, Florida Family Law Rule of Procedure 12.540,
and Florida Rule of Juvenile Procedure 8.150 and 8.270).
Subdivision (a)(5) has been amended to recognize the unique
nature of the orders listed in this subdivision and to codify the
holdings of all of Florida’s district courts of appeal on this subject.
The amendment also clarifies that motions for rehearing directed to
these particular types of orders are unauthorized and will not toll
the time for filing a notice of appeal.
2014 Amendment. Subdivision (a)(4) has been amended to
clarify that an order disposing of a motion that suspends rendition
is reviewable, but only in conjunction with, and as a part of, the
review of the final order. Additionally, the following sentence has
been deleted from subdivision (a)(4): “Other non-final orders entered
after final order on authorized motions are reviewable by the
method prescribed by this rule.” Its deletion clarifies that non-final
orders entered after a final order are no more or less reviewable
than the same type of order would be if issued before a final order.
Non-final orders entered after a final order remain reviewable as
part of a subsequent final order or as otherwise provided by statute
or court rule. This amendment resolves conflict over the language
being stricken and the different approaches to review during post-
decretal proceedings that have resulted. See, e.g., Tubero v. Ellis,
469 So. 2d 206 (Fla. 4th DCA 1985) (Hurley, J., dissenting). This
amendment also cures the mistaken reference in the original 1977
committee note to “orders granting motions to vacate default” as
examples of non-final orders intended for review under the stricken
sentence. An order vacating a default is generally not reviewable
absent a final default judgment. See, e.g., Howard v. McAuley, 436
So. 2d 392 (Fla. 2d DCA 1983). Orders vacating final default
judgments remain reviewable under rule 9.130(a)(5). Essentially,
this amendment will delay some courts’ review of some non-final
orders entered after a final order until rendition of another,
subsequent final order. But the amendment is not intended to alter
the Court’s ultimate authority to review any order.
RULE 9.140 cases. APPEAL PROCEEDINGS IN CRIMINAL CASES
(a) Applicability. Appeal proceedings in criminal cases will
be as in civil cases except as modified by this rule.
(b) Appeals by Defendant.
(1) Appeals Permitted. A defendant may appeal:
(A) a final judgment adjudicating guilt;
(B) a final order withholding adjudication after a
finding of guilt;
(C) an order granting probation or community
control, or both, whether or not guilt has been adjudicated;
(D) orders entered after final judgment or finding
of guilt, including orders revoking or modifying probation or
community control, or both, or orders denying relief under Florida
Rules of Criminal Procedure 3.800(a), 3.801, 3.802, 3.850, 3.851,
or 3.853;
(E) an unlawful or illegal sentence;
(F) a sentence, if the appeal is required or
permitted by general law; or
(G) as otherwise provided by general law.
(2) Guilty or Nolo Contendere Pleas.
(A) Pleas. A defendant may not appeal from a
guilty or nolo contendere plea except as follows:
(i) Reservation of Right to Appeal. A
defendant who pleads guilty or nolo contendere may expressly
reserve the right to appeal a prior dispositive order of the lower
tribunal, identifying with particularity the point of law being
reserved.
(ii) Appeals Otherwise Allowed. A defendant
who pleads guilty or nolo contendere may otherwise directly appeal
only:
a. the lower tribunal’s lack of subject
matter jurisdiction;
b. a violation of the plea agreement, if
preserved by a motion to withdraw plea;
c. an involuntary plea, if preserved by
a motion to withdraw plea;
d. a sentencing error, if preserved; or
e. as otherwise provided by law.
(B) Record.
(i) Except for appeals under subdivision
(b)(2)(A)(i) of this rule, the record for appeals involving a plea of
guilty or nolo contendere will be limited to:
a. all indictments, informations,
affidavits of violation of probation or community control, and other
charging documents;
b. the plea and sentencing hearing
transcripts;
c. any written plea agreements;
d. any 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 documents relating to sentencing;
e. any motion to withdraw plea and
order thereon; and
f. notice of appeal, statement of
judicial acts to be reviewed, directions to the clerk of the lower
tribunal, and designation to the approved court reporter or
approved transcriptionist.
(ii) Upon good cause shown, the court, or the
lower tribunal before the record is electronically transmitted, may
expand the record.
(3) Commencement. The defendant must file the notice
prescribed by rule 9.110(d) with the clerk of the lower tribunal at
any time between rendition of a final judgment and 30 days
following rendition of a written order imposing sentence. Copies
must be served on the state attorney and attorney general.
(4) Cross-Appeal. A defendant may cross-appeal by
serving a notice within 15 days of service of the state’s notice or
service of an order on a motion under Florida Rule of Criminal
Procedure 3.800(b)(2). Review of cross-appeals before trial is limited
to related issues resolved in the same order being appealed.
(c) Appeals by the State.
(1) Appeals Permitted. The state may appeal an order:
(A) 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;
(B) suppressing before trial confessions,
admissions, or evidence obtained by search and seizure;
(C) granting a new trial;
(D) arresting judgment;
(E) granting a motion for judgment of acquittal
after a jury verdict;
(F) discharging a defendant under Florida Rule of
Criminal Procedure 3.191;
(G) discharging a prisoner on habeas corpus;
(H) finding a defendant incompetent or insane;
(I) finding a defendant intellectually disabled
under Florida Rule of Criminal Procedure 3.203;
(J) granting relief under Florida Rules of Criminal
Procedure 3.801, 3.850, 3.851, or 3.853;
(K) ruling on a question of law if a convicted
defendant appeals the judgment of conviction;
(L) withholding adjudication of guilt in violation of
general law;
(M) imposing an unlawful or illegal sentence or
imposing a sentence outside the range permitted by the sentencing
guidelines;
(N) imposing a sentence outside the range
recommended by the sentencing guidelines;
(O) denying restitution; or
(P) as otherwise provided by general law for final
orders.
(2) Commencement. The state must file the notice
prescribed by rule 9.110(d) with the clerk of the lower tribunal
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 must be filed within 15 days of service of
defendant’s notice or service of an order on a motion under Florida
Rule of Criminal Procedure 3.800(b)(2). Copies must be served on
the defendant and the attorney of record. An appeal by the state will
stay further proceedings in the lower tribunal only by order of the
lower tribunal.
(d) Withdrawal of Defense Counsel after Judgment and
Sentence or after Appeal by State.
(1) The attorney of record for a defendant will not be
relieved of any professional duties, or be permitted to withdraw as
defense counsel of record, except with approval of the lower tribunal
on good cause shown on written motion, until either the time has
expired for filing an authorized notice of appeal and no such notice
has been filed by the defendant or the state, or after the following
have been completed:
(A) a notice of appeal or cross-appeal has been
filed on behalf of the defendant or the state;
(B) a statement of judicial acts to be reviewed has
been filed if a transcript will require the expenditure of public
funds;
(C) the defendant’s directions to the clerk of the
lower tribunal have been filed, if necessary;
(D) designations to the approved court reporter or
approved transcriptionist have been filed and served by counsel for
appellant for transcripts of those portions of the proceedings
necessary to support the issues on appeal or, if transcripts will
require the expenditure of public funds for the defendant, of those
portions of the proceedings necessary to support the statement of
judicial acts to be reviewed; and
(E) in publicly funded defense and state appeals,
when the lower tribunal has entered an order appointing the office
of the public defender for the local circuit, the district office of
criminal conflict and civil regional counsel, or private counsel as
provided by chapter 27, Florida Statutes, that office, or attorney will
remain counsel for the appeal until the record is electronically
transmitted to the court. In publicly funded state appeals, defense
counsel must additionally 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 must file a notice of appearance in the court, or defense
counsel of record must 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 must be served on the attorney general (or state
attorney in appeals to the circuit court).
(2) Orders allowing withdrawal of counsel are
conditional and counsel must remain of record for the limited
purpose of representing the defendant in the lower tribunal
regarding any sentencing error the lower tribunal is authorized to
address during the pendency of the direct appeal under Florida
Rule of Criminal Procedure 3.800(b)(2).
(e) Sentencing Errors. A sentencing error may not be raised
on appeal unless the alleged error has first been brought to the
attention of the lower tribunal:
(1) at the time of sentencing; or
(2) by motion pursuant to Florida Rule of Criminal
Procedure 3.800(b).
(f) Record.
(1) Service. The clerk of the lower tribunal must
prepare and serve the record prescribed by rule 9.200 within 50
days of the filing of the notice of appeal. However, the clerk of the
lower tribunal must not serve the record until all proceedings
designated for transcription have been transcribed by the court
reporter(s) and filed in the lower tribunal. If the designated
transcripts have not been filed by the date required for service of
the record, the clerk of the lower tribunal must file with the court,
and serve on all parties and any court reporter whose transcript
has not been filed, a notice of inability to complete the record,
listing the transcripts not yet received. In cases in which the
transcripts are filed after a notice of inability to complete the record,
the clerk of the lower tribunal must prepare and file the record
within 20 days of receipt of the transcripts. An order granting an
extension to the court reporter to transcribe designated proceedings
will toll the time for the clerk of the lower tribunal to serve this
notice or the record on appeal.
(2) Transcripts.
(A) If a defendant’s designation of a transcript of
proceedings requires expenditure of public funds, trial counsel for
the defendant (in conjunction with appellate counsel, if possible)
must 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 approved transcriptionist requiring preparation of only
so much of the proceedings as fairly supports the issue raised.
(B) Either party may file motions in the lower
tribunal to reduce or expand the transcripts.
(C) Except as permitted in subdivision (f)(2)(D) of
this rule, the parties must serve the designation on the approved
court reporter or approved 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 e-mail as set forth in
Florida Rule of General Practice and Judicial Administration 2.516.
(D) Nonindigent defendants represented by
counsel may serve the designation on the approved court reporter
or approved transcriptionist to prepare the transcripts. Counsel
adopting this procedure must, within 5 days of receipt of the
transcripts from the approved court reporter or approved
transcriptionist, file the transcripts. Counsel must serve notice of
the use of this procedure on the attorney general and the clerk of
the lower tribunal. Counsel must attach a certificate to each
transcript certifying that it is accurate and complete. When this
procedure is used, the clerk of the lower tribunal on conclusion of
the appeal must retain the transcript(s) for use as needed by the
state in any collateral proceedings and must not dispose of the
transcripts without the consent of the attorney general.
(E) In state appeals, the state must serve a
designation on the approved court reporter or approved
transcriptionist to prepare and file with the clerk of the lower
tribunal the transcripts and sufficient copies for all parties exempt
from service by e-mail as set forth in Florida Rule of General
Practice and Judicial Administration 2.516. Alternatively, the state
may elect to use the procedure specified in subdivision (f)(2)(D) of
this rule.
(F) The lower tribunal may by administrative order
in publicly-funded cases direct the clerk of the lower tribunal rather
than the approved court reporter or approved transcriptionist to
prepare the necessary transcripts.
(3) Retention of Documents. Unless otherwise ordered
by the court, the clerk of the lower tribunal must retain any original
documents.
(4) Service of Copies. The clerk of the lower tribunal
must serve copies of the record to the court, attorney general, and
all counsel appointed to represent indigent defendants on appeal.
The clerk of the lower tribunal must simultaneously serve copies of
the index to all nonindigent defendants and, on their request,
copies of the record or portions thereof at the cost prescribed by
law.
(5) Return of Record. Except in death penalty cases, the
court must return to the lower tribunal, after final disposition of the
appeal, any portions of the appellate record that were not
electronically filed.
(6) Supplemental Record for Motion to Correct Sentencing
Error Under Florida Rule of Criminal Procedure 3.800(b)(2).
(A) Transmission.
(i) The clerk of the lower tribunal must
automatically supplement the appellate record with any motion
under Florida Rule of Criminal Procedure 3.800(b)(2), any response,
any resulting order, and any amended sentence. If a motion for
rehearing is filed, the supplement must also include the motion for
rehearing, any response, and any resulting order.
(ii) The clerk of the lower tribunal must
electronically transmit the supplement to the appellate court within
20 days after the filing of the order disposing of the rule 3.800(b)(2)
motion, unless a motion for rehearing is filed. If an order is not filed
within 60 days after the filing of the rule 3.800(b)(2) motion, and no
motion for rehearing is filed, this 20-day period will run from the
expiration of the 60-day period, and the clerk of the lower tribunal
must include a statement in the supplement that no order on the
rule 3.800(b)(2) motion was timely filed.
(iii) If a motion for rehearing is filed, the clerk
of the lower tribunal must electronically transmit the supplement to
the court within 5 days after the filing of the order disposing of the
motion for rehearing. If an order disposing of the motion for
rehearing is not filed within 40 days after the date of the order for
which rehearing is sought, this 5-day period will run from the
expiration of the 40-day period, and the clerk of the lower tribunal
must include a statement in the supplement that no order on the
motion for rehearing was timely filed.
(B) Transcripts. If any appellate counsel
determines that a transcript of a proceeding relating to such a
motion is required to review the sentencing issue, appellate counsel
must, within 5 days from the transmission of the supplement
described in subdivision (f)(6)(A)(ii), designate those portions of the
proceedings not on file deemed necessary for transcription and
inclusion in the record. Appellate counsel must file the designation
with the court and serve it on the approved court reporter or
approved transcriptionist. The procedure for this supplementation
must be in accordance with this subdivision, except that counsel is
not required to file a revised statement of judicial acts to be
reviewed, the approved court reporter or approved transcriptionist
must deliver the transcript within 15 days, and the clerk of the
lower tribunal must supplement the record with the transcript
within 5 days of its receipt.
(g) Briefs.
(1) Brief on the Merits. Initial briefs, including those
filed under subdivision (g)(2)(A), must be served within 30 days of
transmission of the record or designation of appointed counsel,
whichever is later. Additional briefs must be served as prescribed by
rule 9.210.
(2) Anders Briefs.
(A) If appointed counsel files a brief stating that
an appeal would be frivolous, the court must independently review
the record to discover any arguable issues apparent on the face of
the record. On the discovery of an arguable issue, other than an
unpreserved sentencing, disposition, or commitment order error,
the court must order briefing on the issues identified by the court.
(B) Upon discovery of an unpreserved sentencing,
disposition, or commitment order error, the court may strike the
brief and allow for a motion under Florida Rule of Criminal
Procedure 3.800(b)(2) or Florida Rule of Juvenile Procedure
8.135(b)(2) to be filed. The court’s order may contain deadlines for
the cause to be resolved within a reasonable time.
(h) Post-Trial Release.
(1) Appeal by Defendant. The lower tribunal may hear a
motion for post-trial release pending appeal before or after a notice
of appeal is filed; provided that the defendant may not be released
from custody until the notice of appeal is filed.
(2) Appeal by State. An incarcerated defendant charged
with a bailable offense must on motion be released on the
defendant’s own recognizance pending an appeal by the state,
unless the lower tribunal for good cause stated in an order
determines otherwise.
(3) Denial of Post-Trial Release. All orders denying post-
trial release must set forth the factual basis on which the decision
was made and the reasons therefor.
(4) Review. Review of an order relating to post-trial
release will be by the court on motion.
(i) Scope of Review. The court must review all rulings and
orders appearing in the record necessary to pass on the grounds of
an appeal. In the interest of justice, the court may grant any relief
to which any party is entitled.
Committee Notes
1977 Amendment. This rule represents a substantial revision
of the procedure in criminal appeals.
Subdivision (a) makes clear the policy of these rules that
procedures be standardized to the maximum extent possible.
Criminal appeals are to be governed by the same rules as other
cases, except for those matters unique to criminal law that are
identified and controlled by this rule.
Subdivision (b)(1) lists the only matters that may be appealed
by a criminal defendant, and it is intended to supersede all other
rules of practice and procedure. This rule has no effect on either the
availability of extraordinary writs otherwise within the jurisdiction
of the court to grant, or the supreme court’s jurisdiction to
entertain petitions for the constitutional writ of certiorari to review
interlocutory orders. This rule also incorporates the holding in State
v. Ashby, 245 So. 2d 225 (Fla. 1971), and is intended to make clear
that the reservation of the right to appeal a judgment based on the
plea of no contest must be express and must identify the particular
point of law being reserved; any issues not expressly reserved are
waived. No direct appeal of a judgment based on a guilty plea is
allowed. It was not intended that this rule affect the substantive law
governing collateral review.
Subdivision (b)(2) replaces former rule 6.2. Specific reference is
made to rule 9.110(d) to emphasize that criminal appeals are to be
prosecuted in substantially the same manner as other cases. Copies
of the notice, however, must be served on both the state attorney
and the attorney general. The time for taking an appeal has been
made to run from the date judgment is rendered to 30 days after an
order imposing sentence is rendered or otherwise reduced to
writing. The former rule provided for appeal within 30 days of
rendition of judgment or within 30 days of entry of sentence. The
advisory committee debated the intent of the literal language of the
former rule. Arguably, under the former rule an appeal could not be
taken by a defendant during the “gap period” that occurs when
sentencing is postponed more than 30 days after entry of judgment.
The advisory committee concluded that no purpose was served by
such an interpretation because the full case would be reviewable
when the “gap” closed. This modification of the former rule
promotes the policies underlying Williams v. State, 324 So. 2d 74
(Fla. 1975), in which it was held that a notice of appeal prematurely
filed should not be dismissed, but held in abeyance until it becomes
effective. This rule does not specifically address the issue of whether
full review is available if re-sentencing occurs on order of a court in
a collateral proceeding. Such cases should be resolved in
accordance with the underlying policies of these rules. Compare
Wade v. State, 222 So. 2d 434 (Fla. 2d DCA 1969), with Neary v.
State, 285 So. 2d 47 (Fla. 4th DCA 1973). If a defendant appeals a
judgment of conviction of a capital offense before sentencing and
sentencing is anticipated, the district court of appeal (as the court
then with jurisdiction) should hold the case in abeyance until the
sentence has been imposed. If the death penalty is imposed, the
district court of appeal should transfer the case to the supreme
court for review. See § 921.141(4), Fla. Stat. (1975); Fla. R. App. P.
9.040(b).
Subdivision (b)(3) governs the service of briefs. Filing should
be made in accordance with rule 9.420.
Subdivision (c)(1) lists the only matters that may be appealed
by the state, but it is not intended to affect the jurisdiction of the
supreme court to entertain by certiorari interlocutory appeals
governed by rule 9.100, or the jurisdiction of circuit courts to
entertain interlocutory appeals of pretrial orders from the county
courts. See State v. Smith, 260 So. 2d 489 (Fla. 1972). No provision
of this rule is intended to conflict with a defendant’s constitutional
right not to be placed twice in jeopardy, and it should be interpreted
accordingly. If there is an appeal under item (A), a motion for a stay
of the lower tribunal proceeding should be liberally granted in cases
in which there appears to be a substantial possibility that trial of
any non-dismissed charges would bar prosecution of the dismissed
charges if the dismissal were reversed, such as in cases involving
the so-called “single transaction rule.” Item (E) refers to the
popularly known “speedy trial rule,” and items (F), (G), and (H)
track the balance of state appellate rights in section 924.07, Florida
Statutes (1975).
Subdivision (c)(2) parallels subdivision (b)(2) regarding appeals
by defendants except that a maximum of 15 days is allowed for
filing the notice. An appeal by the state stays further proceedings in
the lower tribunal only if an order has been entered by the trial
court.
Subdivision (c)(3) governs the service of briefs.
Subdivision (d) applies rule 9.200 to criminal appeals and sets
forth the time for preparation and service of the record, and
additional matters peculiar to criminal cases. It has been made
mandatory that the original record be held by the lower tribunal to
avoid loss and destruction of original papers while in transit. To
meet the needs of appellate counsel for indigents, provision has
been made for automatic transmittal of a copy of the record to the
public defender appointed to represent an indigent defendant on
appeal, which in any particular case may be the public defender
either in the judicial circuit where the trial took place or in the
judicial circuit wherein the appellate court is located. See §
27.51(4), Fla. Stat. (1975). Counsel for a non-indigent defendant
may obtain a copy of the record at the cost prescribed by law. At the
present time, section 28.24(13), Florida Statutes (1975), as
amended by chapter 77-284, § 1, Laws of Florida, prescribes a cost
of $1 per page.
To conserve the public treasury, appeals by indigent
defendants, and other criminal defendants in cases in which a free
transcript is provided, have been specially treated. Only the
essential portions of the transcript are to be prepared. The
appellant must file a statement of the judicial acts to be reviewed on
appeal and the parties are to file and serve designations of the
relevant portions of the record. (This procedure emphasizes the
obligation of trial counsel to cooperate with appellate counsel, if the
two are different, in identifying alleged trial errors.) The statement is
necessary to afford the appellee an opportunity to make a
reasonable determination of the portions of the record required. The
statement should be sufficiently definite to enable the opposing
party to make that determination, but greater specificity is
unnecessary. The statement of judicial acts contemplated by this
rule is not intended to be the equivalent of assignments of error
under former rule 3.5. Therefore, an error or inadequacy in the
statement should not be relevant to the disposition of any case. In
such circumstances, the appropriate procedure would be to
supplement the record under rule 9.200(f) to cure any potential or
actual prejudice. Either party may move in the lower tribunal to
strike unnecessary portions before they are prepared or to expand
the transcript. The ruling of the lower tribunal on such motions is
reviewable by motion to the court under rule 9.200(f) if a party
asserts additional portions are required.
Subdivision (e) replaces former rule 6.15. Subdivision (e)(1)
governs if an appeal is taken by a defendant and permits a motion
to grant post-trial release pending appeal to be heard although a
notice of appeal has not yet been filed. The lower tribunal may then
grant the motion effective on the notice being filed. This rule is
intended to eliminate practical difficulties that on occasion have
frustrated the cause of justice, as in cases in which a defendant’s
attorney has not prepared a notice of appeal in advance of
judgment. Consideration of such motions shall be in accordance
with section 903.132, Florida Statutes (Supp. 1976), and Florida
Rule of Criminal Procedure 3.691. This rule does not apply if the
judgment is based on a guilty plea because no right to appeal such
a conviction is recognized by these rules.
Subdivision (e)(2) governs if the state takes an appeal and
authorizes release of the defendant without bond, if charged with a
bailable offense, unless the lower tribunal for good cause orders
otherwise. The “good cause” standard was adopted to ensure that
bond be required only in rare circumstances. The advisory
committee was of the view that because the state generally will not
be able to gain a conviction unless it prevails, the presumed
innocent defendant should not be required to undergo incarceration
without strong reasons, especially if a pre-trial appeal is involved.
“Good cause” therefore includes such factors as the likelihood of
success on appeal and the likelihood the defendant will leave the
jurisdiction in light of the current status of the charges against the
defendant.
Subdivision (e)(3) retains the substance of former rules 6.15(b)
and (c). The lower tribunal’s order must contain a statement of facts
as well as the reasons for the action taken, in accordance with
Younghans v. State, 90 So. 2d 308 (Fla. 1956).
Subdivision (e)(4) allows review only by motion so that no
order regarding post-trial relief is reviewable unless jurisdiction has
been vested in the court by the filing of a notice of appeal. It is
intended that the amount of bail be reviewable for excessiveness.
Subdivision (f) interacts with rule 9.110(h) to allow review of
multiple judgments and sentences in 1 proceeding.
Subdivision (g) sets forth the procedure to be followed if there
is a summary denial without hearing of a motion for post-conviction
relief under Florida Rule of Criminal Procedure 3.850. This rule
does not limit the right to appeal a denial of such a motion after
hearing under rule 9.140(b)(1)(C).
1980 Amendment. Although the substance of this rule has
not been changed, the practitioner should note that references in
the 1977 committee notes to supreme court jurisdiction to review
non-final orders that would have been appealable if they had been
final orders are obsolete because jurisdiction to review those orders
no longer reposes in the supreme court.
1984 Amendment. Subdivision (b)(4) was added to give effect
to the administrative order entered by the supreme court on May 6,
1981 (6 Fla. L. Weekly 336), which recognized that the procedures
set forth in the rules for criminal appeals were inappropriate for
capital cases.
1992 Amendment. Subdivision (b)(3) was amended to provide
that, in cases in which public funds would be used to prepare the
record on appeal, the attorney of record would not be allowed to
withdraw until substitute counsel has been obtained or appointed.
Subdivision (g) was amended to provide a specific procedure to
be followed by the courts in considering appeals from summary
denial of Florida Rule of Criminal Procedure 3.800(a) motions.
Because such motions are in many respects comparable to Florida
Rule of Criminal Procedure 3.850 motions, it was decided to use the
available format already created by existing subdivision (g) of this
rule. Because a Florida Rule of Criminal Procedure 3.800(a) motion
does not have the same detailed requirements as does a Florida
Rule of Criminal Procedure 3.850 motion, this subdivision also was
amended to require the transmittal of any attachments to the
motions in the lower court.
1996 Amendment. The 1996 amendments are intended to
consolidate and clarify the rules to reflect current law unless
otherwise specified.
Rule 9.140(b)(2)(B) was added to accurately reflect the limited
right of direct appeal after a plea of guilty or nolo contendere. See
Robinson v. State, 373 So. 2d 898 (Fla. 1979), and Counts v. State,
376 So. 2d 59 (Fla. 2d DCA 1979).
New subdivision (b)(4) reflects Lopez v. State, 638 So. 2d 931
(Fla. 1994). A defendant may cross-appeal as provided, but if the
defendant chooses not to do so, the defendant retains the right to
raise any properly preserved issue on plenary appeal. It is the
committee’s intention that the 10-day period for filing notice of the
cross-appeal should be interpreted in the same manner as in civil
cases under rule 9.110(g).
Rule 9.140(b)(6)(E) adopts Florida Rule of Criminal Procedure
3.851(b)(2) and is intended to supersede that rule. See Fla. R. Jud.
Admin. 2.135. The rule also makes clear that the time periods in
rule 9.140(j) do not apply to death penalty cases.
The revised rules 9.140(e)(2)(D) and 9.140(e)(2)(E) are intended
to supersede Brown v. State, 639 So. 2d 634 (Fla. 5th DCA 1994),
and allow non-indigent defendants represented by counsel, and the
state, to order just the original transcript from the court reporter
and to make copies. However, the original and copies for all other
parties must then be served on the clerk of the lower tribunal for
inclusion in the record. The revised rule 9.140(e)(2)(F) also allows
chief judges for each circuit to promulgate an administrative order
requiring the lower tribunal clerk’s office to make copies of the
transcript when the defendant is indigent. In the absence of such
an administrative order, the court reporter will furnish an original
and copies for all parties in indigent appeals.
Rule 9.140(j)(3) imposes a two-year time limit on proceedings
to obtain delayed appellate review based on either the
ineffectiveness of counsel on a prior appeal or the failure to timely
initiate an appeal by appointed counsel. The former was previously
applied for by a petition for writ of habeas corpus in the appellate
court and the latter by motion pursuant to Florida Rule of Criminal
Procedure 3.850 in the trial court. Because both of these remedies
did not require a filing fee, it is contemplated that no fee will be
required for the filing of petitions under this rule. Subdivision
(j)(3)(B) allows two years “after the conviction becomes final.” For
purposes of the subdivision a conviction becomes final after
issuance of the mandate or other final process of the highest court
to which direct review is taken, including review in the Florida
Supreme Court and United States Supreme Court. Any collateral
review shall not stay the time period under this subdivision.
Subdivision (j)(3)(C) under this rule makes clear that defendants
who were convicted before the effective date of the rule will not have
their rights retroactively extinguished but will be subject to the time
limits as calculated from the effective date of the rule unless the
time has already commenced to run under rule 3.850.
Rule 9.140(j)(5) was added to provide a uniform procedure for
requesting belated appeal and to supersede State v. District Court of
Appeal of Florida, First District, 569 So. 2d 439 (Fla. 1990). This
decision resulted in there being two procedures for requesting
belated appeal: Florida Rule of Criminal Procedure 3.850 when the
criminal appeal was frustrated by ineffective assistance of trial
counsel, id.; and habeas corpus for everything else. See Scalf v.
Singletary, 589 So. 2d 986 (Fla. 2d DCA 1991). Experience showed
that filing in the appellate court was more efficient. This rule is
intended to reinstate the procedure as it existed prior to State v.
District Court of Appeal, First District. See Baggett v. Wainwright,
229 So. 2d 239 (Fla. 1969); State v. Meyer, 430 So. 2d 440 (Fla.
1983).
In the rare case where entitlement to belated appeal depends
on a determination of disputed facts, the appellate court may
appoint a commissioner to make a report and recommendation.
2000 Amendment. Subdivision (b)(1)(B) was added to reflect
the holding of State v. Schultz, 720 So. 2d 247 (Fla. 1998). The
amendment to renumber subdivision (b)(1)(D), regarding appeals
from orders denying relief under Florida Rules of Criminal
Procedure 3.800(a) or 3.850, reflects current practice.
The committee added language to subdivision (b)(6)(B) to
require court reporters to file transcripts on computer disks in
death penalty cases. Death penalty transcripts typically are lengthy,
and many persons review and use them over the years. In these
cases, filing lengthy transcripts on computer disks makes them
easier to use for all parties and increases their longevity.
The committee deleted the last sentence of subdivision (b)(6)(E)
because its substance is now included in rule 9.141(a). The
committee also amended and transferred subdivisions (i) and (j) to
rule 9.141 for the reasons specified in the committee note for that
rule.
2005 Amendment. New subdivision (L) was added to (c)(1) in
response to the Florida legislature’s enactment of section
775.08435(3), Florida Statutes (2004), which provides that “[t]he
withholding of adjudication in violation of this section is subject to
appellate review under chapter 924.”
2020 Amendment. The reference to appeals to the circuit
court of nonfinal orders by the State was removed following the
repeal of section 924.08, Florida Statutes (2019), to clarify that final
and nonfinal appellate jurisdiction in criminal cases is vested in the
district courts of appeal.
Court Commentary
1996. Rule 9.140 was substantially rewritten so as to
harmonize with the Criminal Appeal Reform Act of 1996 (CS/HB
211). The reference to unlawful sentences in rule 9.140(b)(1)(D) and
(c)(1)(J) means those sentences not meeting the definition of illegal
under Davis v. State, 661 So. 2d 1193 (Fla. 1995), but,
nevertheless, subject to correction on direct appeal.
RULE 9.141 cases. REVIEW PROCEEDINGS IN COLLATERAL OR
POSTCONVICTION CRIMINAL CASES
(a) Death Penalty Cases. This rule does not apply to death
penalty cases.
(b) Appeals from Postconviction Proceedings Under
Florida Rules of Criminal Procedure 3.800(a), 3.801, 3.802,
3.850, or 3.853.
(1) Applicability of Civil Appellate Procedures. Appeal
proceedings under this subdivision will be as in civil cases, except
as modified by this rule.
(2) Summary Grant or Denial of All Claims Raised in a
Motion Without Evidentiary Hearing.
(A) Record. When a motion for postconviction
relief under rules 3.800(a), 3.801, 3.802, 3.850, or 3.853 is granted
or denied without an evidentiary hearing, the clerk of the lower
tribunal must electronically transmit to the court, as the record, the
motion, response, reply, order on the motion, motion for rehearing,
response, reply, order on the motion for rehearing, and attachments
to any of the foregoing, together with the certified copy of the notice
of appeal.
(B) Index. The clerk of the lower tribunal must
index and paginate the record and send copies of the index and
record to the parties.
(C) Briefs or Responses.
(i) Briefs are not required, but the appellant
may serve an initial brief within 30 days of filing the notice of
appeal. The appellee need not file an answer brief unless directed by
the court. The initial brief must comply with the word count (if
computer-generated) or page limits (if handwritten or typewritten)
set forth in rule 9.210 for initial briefs. The appellant may serve a
reply brief as prescribed by rule 9.210.
(ii) The court may request a response from
the appellee before ruling, regardless of whether the appellant filed
an initial brief. The appellant may serve a reply within 30 days after
service of the response. The response and reply must comply with
the word count (if computer-generated) or page limits (if
handwritten or typewritten) set forth in rule 9.210 for answer briefs
and reply briefs.
(D) Disposition. On appeal from the denial of
relief, unless the record shows conclusively that the appellant is
entitled to no relief, the order must be reversed and the cause
remanded for an evidentiary hearing or other appropriate relief.
(3) Grant or Denial of Motion after an Evidentiary
Hearing was Held on 1 or More Claims.
(A) Transcription. In the absence of designations
to the court reporter, the notice of appeal filed by an indigent pro se
litigant in a rule 3.801, 3.802, 3.850, or 3.853 appeal after an
evidentiary hearing will serve as the designation to the court
reporter for the transcript of the evidentiary hearing. Within 5 days
of receipt of the notice of appeal, the clerk of the lower tribunal
must request the appropriate court reporter to transcribe the
evidentiary hearing and must send the court reporter a copy of the
notice, the date of the hearing to be transcribed, the name of the
judge, and a copy of this rule.
(B) Record.
(i) When a motion for postconviction relief
under rules 3.801, 3.802, 3.850, or 3.853 is granted or denied after
an evidentiary hearing, the clerk of the lower tribunal must index,
paginate, and electronically transmit to the court as the record,
within 50 days of the filing of the notice of appeal, the notice of
appeal, motion, response, reply, order on the motion, motion for
rehearing, response, reply, order on the motion for rehearing, and
attachments to any of the foregoing, as well as the transcript of the
evidentiary hearing.
(ii) Within 10 days of filing the notice of
appeal, the appellant may direct the clerk of the lower tribunal to
include in the record any other documents that were before the
lower tribunal at the hearing.
(iii) The clerk of the lower tribunal must serve
copies of the record on the attorney general, all counsel appointed
to represent indigent defendants on appeal, and any pro se indigent
defendant. The clerk of the lower tribunal must simultaneously
serve copies of the index on all nonindigent defendants and, at their
request, copies of the record or portions of it at the cost prescribed
by law.
(C) Briefs. Initial briefs must be served within 30
days of service of the record or its index. Additional briefs must be
served as prescribed by rule 9.210.
(c) Petitions Seeking Belated Appeal or Belated
Discretionary Review.
(1) Applicability. This subdivision governs petitions
seeking belated appeals or belated discretionary review.
(2) Treatment as Original Proceedings. Review
proceedings under this subdivision will be treated as original
proceedings under rule 9.100, except as modified by this rule.
(3) Forum. Petitions seeking belated review must be
filed in the court to which the appeal or discretionary review should
have been taken.
(4) Contents. The petition must be in the form
prescribed by rule 9.100, may include supporting documents, and
must recite in the statement of facts:
(A) the date and nature of the lower tribunal’s
order sought to be reviewed;
(B) the name of the lower tribunal rendering the
order;
(C) the nature, disposition, and dates of all
previous court proceedings;
(D) if a previous petition was filed, the reason the
claim in the present petition was not raised previously;
(E) the nature of the relief sought;
(F) the specific acts sworn to by the petitioner or
petitioner’s counsel that constitute the basis for entitlement to
belated appeal or belated discretionary review, as outlined below:
(i) a petition seeking belated appeal must
state whether the petitioner requested counsel to proceed with the
appeal and the date of any such request, or if the petitioner was
misadvised as to the availability of appellate review or the status of
filing a notice of appeal. A petition seeking belated discretionary
review must state whether counsel advised the petitioner of the
results of the appeal and the date of any such notification, or if
counsel misadvised the petitioner as to the opportunity for seeking
discretionary review; or
(ii) a petition seeking belated appeal or
belated discretionary review must identify the circumstances,
including names of individuals involved and date(s) of the
occurrence(s), that were beyond the petitioner’s control and
otherwise interfered with the petitioner’s ability to file a timely
appeal or notice to invoke, as applicable; and
(G) if seeking belated discretionary review, the
basis for invoking discretionary review jurisdiction with a copy of
the district court’s decision attached.
(5) Time Limits.
(A) A petition for belated appeal must not be filed
more than 2 years after the expiration of time for filing the notice of
appeal from a final order, unless it alleges under oath with a
specific factual basis that the petitioner was unaware a notice of
appeal had not been timely filed or was not advised of the right to
an appeal or was otherwise prevented from timely filing the notice of
appeal due to circumstances beyond the petitioner’s control, and
could not have ascertained such facts by the exercise of reasonable
diligence. In no case may a petition for belated appeal be filed more
than 4 years after the expiration of time for filing the notice of
appeal.
(B) A petition for belated discretionary review
must not be filed more than 2 years after the expiration of time for
filing the notice to invoke discretionary review from a final order,
unless it alleges under oath with a specific factual basis that the
petitioner was unaware such notice had not been timely filed or was
not advised of the results of the appeal, or was otherwise prevented
from timely filing the notice due to circumstances beyond the
petitioner’s control, and that the petitioner could not have
ascertained such facts by the exercise of reasonable diligence. In no
case may a petition for belated discretionary review be filed more
than 4 years after the expiration of time for filing the notice to
invoke discretionary review from a final order.
(6) Procedure.
(A) The petitioner must serve a copy of a petition
for belated appeal on the attorney general and state attorney. The
petitioner must serve a copy of a petition for belated discretionary
review on the attorney general.
(B) The court may by order identify any provision
of this rule that the petition fails to satisfy and, under rule 9.040(d),
allow the petitioner a specified time to serve an amended petition.
(C) The court may dismiss a second or successive
petition if it does not allege new grounds and the prior
determination was on the merits, or if a failure to assert the
grounds was an abuse of procedure.
(D) An order granting a petition for belated appeal
must be filed with the lower tribunal and treated as the notice of
appeal, if no previous notice has been filed. An order granting a
petition for belated discretionary review or belated appeal of a
decision of a district court of appeal must be filed with the district
court of appeal and treated as a notice to invoke discretionary
jurisdiction or notice of appeal, if no previous notice has been filed.
(d) Petitions Alleging Ineffective Assistance of Appellate
Counsel.
(1) Applicability. This subdivision governs petitions
alleging ineffective assistance of appellate counsel.
(2) Treatment as Original Proceedings. Review
proceedings under this subdivision will be treated as original
proceedings under rule 9.100, except as modified by this rule.
(3) Forum. Petitions alleging ineffective assistance of
appellate counsel must be filed in the court to which the appeal was
taken.
(4) Contents. The petition must be in the form
prescribed by rule 9.100, may include supporting documents, and
must recite in the statement of facts:
(A) the date and nature of the lower tribunal’s
order subject to the disputed appeal;
(B) the name of the lower tribunal rendering the
order;
(C) the nature, disposition, and dates of all
previous court proceedings;
(D) if a previous petition was filed, the reason the
claim in the present petition was not raised previously;
(E) the nature of the relief sought; and
(F) the specific acts sworn to by the petitioner or
petitioner’s counsel that constitute the alleged ineffective assistance
of counsel.
(5) Time Limits. A petition alleging ineffective assistance
of appellate counsel on direct review must not be filed more than 2
years after the judgment and sentence become final on direct review
unless it alleges under oath with a specific factual basis that the
petitioner was affirmatively misled about the results of the appeal
by counsel. In no case may a petition alleging ineffective assistance
of appellate counsel on direct review be filed more than 4 years after
the judgment and sentence become final on direct review.
(6) Procedure.
(A) The petitioner must serve a copy of the petition
on the attorney general.
(B) The court may by order identify any provision
of this rule that the petition fails to satisfy and, under rule 9.040(d),
allow the petitioner a specified time to serve an amended petition.
(C) The court may dismiss a second or successive
petition if it does not allege new grounds and the prior
determination was on the merits, or if a failure to assert the
grounds was an abuse of procedure.
Committee Notes
2000 Amendment. Rule 9.141 is a new rule governing review
of collateral or post-conviction criminal cases. It covers topics
formerly included in rules 9.140(i) and (j). The committee opted to
transfer these subjects to a new rule, in part because rule 9.140
was becoming lengthy. In addition, review proceedings for collateral
criminal cases are in some respects treated as civil appeals or as
extraordinary writs, rather than criminal appeals under rule 9.140.
Subdivision (a) clarifies that this rule does not apply to death
penalty cases. The Supreme Court has its own procedures for these
cases, and the committee did not attempt to codify them.
Subdivision (b)(2) amends former rule 9.140(i) and addresses
review of summary grants or denials of post-conviction motions
under Florida Rules of Criminal Procedure 3.800(a) or 3.850.
Amended language in subdivision (b)(2)(A) makes minor changes to
the contents of the record in such cases. Subdivision (b)(2)(B)
addresses a conflict between Summers v. State, 570 So. 2d 990 (Fla.
1st DCA 1990), and Fleming v. State, 709 So. 2d 135 (Fla. 2d DCA
1998), regarding indexing and pagination of records. The First
District requires clerks to index and paginate the records, while the
other district courts do not. The committee determined not to
require indexing and pagination unless the court directs otherwise,
thereby allowing individual courts to require indexing and
pagination if they so desire. Subdivision (b)(2)(B) also provides that
neither the state nor the defendant should get a copy of the record
in these cases, because they should already have all of the relevant
documents. Subdivision (b)(2)(D) reflects current case law that the
court can reverse not only for an evidentiary hearing but also for
other appropriate relief.
Subdivision (b)(3) addresses review of grants or denials of
post-conviction motions under rule 3.850 after an evidentiary
hearing. Subdivision (b)(3)(A) provides for the preparation of a
transcript if an indigent pro se litigant fails to request the court
reporter to prepare it. The court cannot effectively carry out its
duties without a transcript to review, and an indigent litigant will
usually be entitled to preparation of the transcript and a copy of the
record at no charge. See Colonel v. State, 723 So. 2d 853 (Fla. 3d
DCA 1998). The procedures in subdivisions (b)(3)(B) and (C) for
preparation of the record and service of briefs are intended to be
similar to those provided in rule 9.140 for direct appeals from
judgments and sentences.
Subdivision (c) is a slightly reorganized and clarified version of
former rule 9.140(j). No substantive changes are intended.
RULE 9.142 cases. PROCEDURE FOR REVIEW IN DEATH PENALTY
CASES
(a) Procedure in Death Penalty Appeals.
(1) Record.
(A) When the notice of appeal is filed in the
supreme court, the chief justice will direct the appropriate chief
judge of the circuit court to monitor the preparation of the complete
record for timely filing in the supreme court. Transcripts of all
proceedings conducted in the lower tribunal must be included in
the record under these rules.
(B) The complete record in a death penalty appeal
must include all items required by rule 9.200 and by any order
issued by the supreme court. In any appeal following the initial
direct appeal, the record must exclude any materials already
transmitted to the supreme court as the record in any prior appeal.
The clerk of the circuit court must retain a copy of the complete
record when it transmits the record to the supreme court.
(C) The supreme court must take judicial notice of
the appellate records in all prior appeals and writ proceedings
involving a challenge to the same judgment of conviction and
sentence of death. Appellate records subject to judicial notice under
this subdivision must not be duplicated in the record transmitted
for the appeal under review.
(2) Briefs; Transcripts. After the record is filed, the clerk
of the supreme court will promptly establish a briefing schedule
allowing the defendant 60 days from the date the record is filed, the
state 50 days from the date the defendant’s brief is served, and the
defendant 40 days from the date the state’s brief is served to serve
their respective briefs. On appeals from orders ruling on
applications for relief under Florida Rules of Criminal Procedure
3.851 or 3.853, and on resentencing matters, the schedules set
forth in rule 9.140(g) will control.
(3) Sanctions. If any brief is delinquent, an order to
show cause may be issued under Florida Rule of Criminal
Procedure 3.840, and sanctions may be imposed.
(4) Oral Argument. Oral argument will be scheduled
after the filing of the defendant’s reply brief.
(5) Scope of Review. On direct appeal in death penalty
cases, whether or not insufficiency of the evidence is an issue
presented for review, the court must review the issue and, if
necessary, remand for the appropriate relief.
(b) Petitions for Extraordinary Relief.
(1) Treatment as Original Proceedings. Review
proceedings under this subdivision will be treated as original
proceedings under rule 9.100, except as modified by this rule.
(2) Contents. Any petition filed under this subdivision
must be in the form prescribed by rule 9.100, may include
supporting documents, and must recite in the statement of facts:
(A) the date and nature of the lower tribunal’s
order sought to be reviewed;
(B) the name of the lower tribunal rendering the
order;
(C) the nature, disposition, and dates of all
previous court proceedings;
(D) if a previous petition was filed, the reason the
claim in the present petition was not raised previously; and
(E) the nature of the relief sought.
(3) Petitions Seeking Belated Appeal.
(A) Contents. A petition for belated appeal must
include a detailed allegation of the specific acts sworn to by the
petitioner or petitioner’s counsel that constitute the basis for
entitlement to belated appeal, including whether the petitioner
requested counsel to proceed with the appeal and the date of any
such request, whether counsel misadvised the petitioner as to the
availability of appellate review or the filing of the notice of appeal, or
whether there were circumstances unrelated to counsel’s action or
inaction, including names of individuals involved and date(s) of the
occurrence(s), that were beyond the petitioner’s control and
otherwise interfered with the petitioner’s ability to file a timely
appeal.
(B) Time limits. A petition for belated appeal must
not be filed more than 1 year after the expiration of time for filing
the notice of appeal from a final order denying rule 3.851 relief,
unless it alleges under oath with a specific factual basis that the
petitioner:
(i) was unaware an appeal had not been
timely filed, was not advised of the right to an appeal, was
misadvised as to the right to an appeal, or was prevented from
timely filing a notice of appeal due to circumstances beyond the
petitioner’s control; and
(ii) could not have ascertained such facts by
the exercise of due diligence.
In no case may a petition for belated appeal be filed more than
2 years after the expiration of time for filing the notice of appeal.
(4) Petitions Alleging Ineffective Assistance of Appellate
Counsel.
(A) Contents. A petition alleging ineffective
assistance of appellate counsel must include detailed allegations of
the specific acts that constitute the alleged ineffective assistance of
counsel on direct appeal.
(B) Time limits. A petition alleging ineffective
assistance of appellate counsel must be filed simultaneously with
the initial brief in the appeal from the lower tribunal’s order on the
defendant’s application for relief under Florida Rule of Criminal
Procedure 3.851.
(c) Petitions Seeking Review of Nonfinal Orders in Death
Penalty Postconviction Proceedings.
(1) Applicability. This rule applies to proceedings that
invoke the jurisdiction of the supreme court for review of nonfinal
orders issued in postconviction proceedings following the imposition
of the death penalty.
(2) Treatment as Original Proceedings. Review
proceedings under this subdivision will be treated as original
proceedings under rule 9.100 unless modified by this subdivision.
(3) Commencement; Parties.
(A) Jurisdiction of the supreme court must be
invoked by filing a petition with the clerk of the supreme court
within 30 days of rendition of the nonfinal order to be reviewed. A
copy of the petition must be served on the opposing party and
furnished to the judge who issued the order to be reviewed.
(B) Either party to the death penalty
postconviction proceedings may seek review under this rule.
(4) Contents. The petition must be in the form
prescribed by rule 9.100, and must contain:
(A) the basis for invoking the jurisdiction of the
court;
(B) the date and nature of the order sought to be
reviewed;
(C) the name of the lower tribunal rendering the
order;
(D) the name, disposition, and dates of all
previous trial, appellate, and postconviction proceedings relating to
the conviction and death sentence that are the subject of the
proceedings in which the order sought to be reviewed was entered;
(E) the facts on which the petitioner relies, with
references to the appropriate pages of the supporting appendix;
(F) argument in support of the petition, including
an explanation of why the order departs from the essential
requirements of law and how the order may cause material injury
for which there is no adequate remedy on appeal, and appropriate
citations of authority; and
(G) the nature of the relief sought.
(5) Appendix. The petition must be accompanied by an
appendix, as prescribed by rule 9.220, which must contain the
portions of the record necessary for a determination of the issues
presented.
(6) Order to Show Cause. If the petition demonstrates a
preliminary basis for relief or a departure from the essential
requirements of law that may cause material injury for which there
is no adequate remedy by appeal, the court may issue an order
directing the respondent to show cause, within the time set by the
court, why relief should not be granted.
(7) Response. No response will be permitted unless
ordered by the court.
(8) Reply. Within 30 days after service of the response
or such other time set by the court, the petitioner may serve a reply
and supplemental appendix.
(9) Stay.
(A) A stay of proceedings under this rule is not
automatic; the party seeking a stay must petition the supreme
court for a stay of proceedings.
(B) During the pendency of a review of a nonfinal
order, unless a stay is granted by the supreme court, the lower
tribunal may proceed with all matters, except that the lower
tribunal may not render a final order disposing of the cause
pending review of the nonfinal order.
(10) Other Pleadings. The parties must not file any other
pleadings, motions, replies, or miscellaneous documents without
leave of court.
(11) Time Limitations. Seeking review under this rule will
not extend the time limitations in rules 3.851 or 3.852.
(d) Review of Dismissal of Postconviction Proceedings in
Florida Rule of Criminal Procedure 3.851(i) Cases.
(1) Applicability. This rule applies when the circuit
court enters an order dismissing postconviction proceedings under
Florida Rule of Criminal Procedure 3.851(i), unless the appeal was
waived by the defendant before the circuit court.
(2) Procedure Following Rendition of Order of Dismissal.
(A) Notice to Lower Tribunal. Within 10 days of
the rendition of an order granting a prisoner’s motion to dismiss the
motion for postconviction relief, counsel must file with the clerk of
the circuit court a notice of appeal seeking review in the supreme
court.
(B) Transcription. The circuit judge presiding over
any hearing on a motion to dismiss must order a transcript of the
hearing to be prepared and filed with the clerk of the circuit court
no later than 25 days from rendition of the final order.
(C) Record. Within 30 days of the granting of a
motion to dismiss, the clerk of the circuit court must electronically
transmit a copy of the motion, order, and transcripts of all hearings
held on the motion to the clerk of the supreme court.
(D) Proceedings in the Supreme Court of Florida.
Within 20 days of the filing of the record in the supreme court,
counsel must serve an initial brief. The state may serve responsive
brief. All briefs must be served and filed as prescribed by rule
9.210.
Committee Notes
2009 Amendment. Subdivision (a)(1) has been amended to
clarify what is meant by the phrase “complete record” in any death
penalty appeal. A complete record in a death penalty appeal
includes all items required by rule 9.200 and by any order issued
by the supreme court, including any administrative orders such as
In Re: Record in Capital Cases (Fla. July 6, 1995). It is necessary for
transcripts of all hearings to be prepared and designated for
inclusion in the record in all death penalty cases under rules
9.200(b), 9.140(f)(2), and 9.142(a)(2), to ensure completeness for
both present and future review. The supreme court permanently
retains the records in all death penalty appeals and writ
proceedings arising from a death penalty case. See rule 9.140(f)(5);
Florida Rule of Judicial Administration 2.430(e)(2). These records
are available to the supreme court when reviewing any subsequent
proceeding involving the same defendant without the need for
inclusion of copies of these records in the record for the appeal
under review. Subdivision (a)(1) does not limit the ability of the
parties to rely on prior appellate records involving the same
defendant and the same judgment of conviction and sentence of
death. Subdivision (a)(1)(B) is intended to ensure, among other
things, that all documents filed in the lower tribunal under Florida
Rule of Criminal Procedure 3.852 are included in the records for all
appeals from final orders disposing of motions for postconviction
relief filed under rule 3.851. This rule does not limit the authority to
file directions under rule 9.200(a)(3), or to correct or supplement
the record under rule 9.200(f).
Criminal Court Steering Committee Note
2014 Amendment. Rule 9.142(a)(1)(B) was amended for the
clerk of the lower court to retain a copy of the complete record for
use in a subsequent postconviction proceeding.
RULE 9.143 cases. CRIME VICTIMS
In all criminal and juvenile delinquency proceedings pursuant
to these rules:
(a) Victim. For purposes of this rule a victim shall be
defined as set forth in article I, section 16(e), Florida Constitution.
(b) Record. The record on appeal shall include any filing by
a victim or other authorized filer on the victim’s behalf made part of
the court file in accordance with Florida Rule of General Practice
and Judicial Administration 2.420(b)(1)(A).
(c) Assertion of Victim’s Rights. A victim seeking to invoke
a right under article I, section 16, of the Florida Constitution may
file a motion in the court in which the matter is pending.
Committee Note
2022 Adoption. This rule responds to the 2018 amendment of
article I, section 16, Florida Constitution, and is not intended to
confer party status on a victim.
RULE 9.145 cases. APPEAL PROCEEDINGS IN JUVENILE
DELINQUENCY CASES
(a) Applicability. Appeal proceedings in juvenile
delinquency cases will be as in rule 9.140 except as modified by
this rule.
(b) Appeals by Child. To the extent adversely affected, a
child or any parent, legal guardian, or custodian of a child may
appeal:
(1) an order of adjudication of delinquency or
withholding adjudication of delinquency, or any disposition order
entered thereon;
(2) orders entered after adjudication or withholding of
adjudication of delinquency, including orders revoking or modifying
the community control;
(3) an illegal disposition; or
(4) any other final order as provided by law.
(c) Appeals by the State.
(1) Appeals Permitted. The state may appeal an order:
(A) dismissing a petition for delinquency or any
part of it, if the order is entered before the commencement of an
adjudicatory hearing;
(B) suppressing confessions, admissions, or
evidence obtained by search or seizure before the adjudicatory
hearing;
(C) granting a new adjudicatory hearing;
(D) arresting judgment;
(E) discharging a child under Florida Rule of
Juvenile Procedure 8.090;
(F) ruling on a question of law if a child appeals
an order of disposition;
(G) constituting an illegal disposition;
(H) discharging a child on habeas corpus; or
(I) finding a child incompetent pursuant to the
Florida Rules of Juvenile Procedure.
(2) Nonfinal State Appeals. If the state appeals a pre-
adjudicatory hearing order of the trial court, the notice of appeal
must be filed within 15 days of rendition of the order to be reviewed
and before commencement of the adjudicatory hearing.
(A) A child in detention whose case is stayed
pending a state appeal must be released from detention pending the
appeal if the child is charged with an offense that would be bailable
if the child were charged as an adult, unless the lower tribunal for
good cause stated in an order determines otherwise. The lower
tribunal retains discretion to release from detention any child who
is not otherwise entitled to release under the provisions of this rule.
(B) If a child has been found incompetent to
proceed, any order staying the proceedings on a state appeal will
have no effect on any order entered for the purpose of treatment.
(d) References to Child. The appeal must be entitled and
docketed with the initials, but not the name, of the child and the
court case number. All references to the child in briefs, other
documents, and the decision of the court must be by initials. This
subdivision does not apply to transcripts.
(e) Confidentiality. Filings will not be open to inspection
except by the parties and their counsel, or as otherwise ordered,
pursuant to Florida Rule of General Practice and Judicial
Administration 2.420.
Committee Notes
1996 Adoption. Subdivision (c)(2) is intended to make clear
that in non-final state appeals, the notice of appeal must be filed
before commencement of the adjudicatory hearing. However, the
notice of appeal must still be filed within 15 days of rendition of the
order to be reviewed as provided by rule 9.140(c)(3). These two rules
together provide that when an adjudicatory hearing occurs within
15 days or less of rendition of an order to be reviewed, the notice of
appeal must be filed before commencement of the adjudicatory
hearing. This rule is not intended to extend the 15 days allowed for
filing the notice of appeal as provided by rule 9.140(c)(3).
Subdivision (d) requires the parties to use initials in all
references to the child in all briefs and other papers filed in the
court in furtherance of the appeal. It does not require the deletion of
the name of the child from pleadings or other papers transmitted to
the court from the lower tribunal.
RULE 9.146 cases. APPEAL PROCEEDINGS IN JUVENILE
DEPENDENCY AND TERMINATION OF PARENTAL
RIGHTS CASES AND CASES INVOLVING
FAMILIES AND CHILDREN IN NEED OF
SERVICES
(a) Applicability. Appeal proceedings in juvenile dependency
and termination of parental rights cases and cases involving
families and children in need of services will be as in civil cases
except to the extent those rules are modified by this rule.
(b) Who May Appeal. Any child, any parent, guardian ad
litem, or any other party to the proceeding affected by an order of
the lower tribunal, or the appropriate state agency as provided by
law may appeal to the appropriate court within the time and in the
manner prescribed by these rules.
(c) Stay of Proceedings.
(1) Application. Except as provided by general law and
in subdivision (c)(2) of this rule, a party seeking to stay a final or
nonfinal order pending review must file a motion in the lower
tribunal, which has continuing jurisdiction, in its discretion, to
grant, modify, or deny such relief, after considering the welfare and
best interest of the child.
(2) Termination of Parental Rights. The taking of an
appeal will not operate as a stay in any case unless pursuant to an
order of the court or the lower tribunal, except that a termination of
parental rights order with placement of the child with a licensed
child-placing agency or the Department of Children and Families for
subsequent adoption will be suspended while the appeal is pending,
but the child will continue in custody under the order until the
appeal is decided.
(3) Review. A party may seek review of a lower
tribunal’s order entered under this rule by filing a motion in the
court.
(d) Retention of Jurisdiction. Transmission of the record to
the court does not remove the jurisdiction of the circuit court to
conduct judicial reviews or other proceedings related to the health
and welfare of the child pending appeal.
(e) References to Child or Parents. When the parent or
child is a party to the appeal, the appeal will be docketed and, with
the exception of transcripts, any documents filed in the court must
be titled with the initials, but not the name, of the child or parent
and the court case number. All references to the child or parent in
briefs, documents other than transcripts, and the decision of the
court must be by initials.
(f) Confidentiality. Filings will not be open to inspection
except by the parties and their counsel, or as otherwise ordered,
pursuant to Florida Rule of General Practice and Judicial
Administration 2.420.
(g) Special Procedures and Time Limitations Applicable
to Appeals of Final Orders in Dependency or Termination of
Parental Rights Proceedings.
(1) Applicability. This subdivision applies only to
appeals of final orders to the district courts of appeal.
(2) The Record.
(A) Contents. The record must be prepared in
accordance with rule 9.200, except as modified by this subdivision.
(B) Transcripts of Proceedings. The appellant must
file a designation to the court reporter, including the name(s) of the
individual court reporter(s), if applicable, with the notice of appeal.
The designation must be served on the court reporter on the date of
filing and must state that the appeal is from a final order of
termination of parental rights or of dependency, and that the court
reporter must provide the transcript(s) designated within 20 days of
the date of service. Within 20 days of the date of service of the
designation, the court reporter must transcribe and file with the
clerk of the lower tribunal the transcripts and sufficient copies for
all parties exempt from service by e-mail as set forth in Florida Rule
of General Practice and Judicial Administration 2.516. If
extraordinary reasons prevent the reporter from preparing the
transcript(s) within the 20 days, the reporter must request an
extension of time, must state the number of additional days
requested, and must state the extraordinary reasons that would
justify the extension.
(C) Directions to the Clerk, Duties of the Clerk,
Preparation and Transmission of the Record. The appellant must
file directions to the clerk of the lower tribunal with the notice of
appeal. The clerk of the lower tribunal must electronically transmit
the record to the court within 5 days of the date the court reporter
files the transcript(s) or, if a designation to the court reporter has
not been filed, within 5 days of the filing of the notice of appeal.
When the record is electronically transmitted to the court, the clerk
of the lower tribunal must simultaneously electronically transmit
the record to the Department of Children and Families, the
guardian ad litem, counsel appointed to represent any indigent
parties, and must simultaneously serve copies of the index to all
nonindigent parties, and, on their request, copies of the record or
portions thereof. The clerk of the lower tribunal must provide the
record in paper format to all parties exempt from electronic service
as set forth in the Florida Rules of General Practice and Judicial
Administration.
(3) Briefs.
(A) In General. Briefs must be prepared and filed
in accordance with rule 9.210(a)–(e), (g), and (h).
(B) Times for Service. The initial brief must be
served within 30 days of service of the record on appeal or the index
to the record on appeal. The answer brief must be served within 30
days of service of the initial brief. The reply brief, if any, must be
served within 15 days of the service of the answer brief. In any
appeal or cross-appeal, if more than 1 initial or answer brief is
authorized, the responsive brief must be served within 30 days after
the last initial brief or within 15 days after the last answer brief was
served. If the last authorized initial or answer brief is not served,
the responsive brief must be served within 30 days after the last
authorized initial brief or within 15 days after the last authorized
answer brief could have been timely served.
(4) Motions.
(A) Motions for Appointment of Appellate Counsel;
Authorization of Payment of Transcription Costs. A motion for the
appointment of appellate counsel, when authorized by general law,
and a motion for authorization of payment of transcription costs,
when appropriate, must be filed with the notice of appeal. The
motion and a copy of the notice of appeal must be served on the
presiding judge in the lower tribunal. The presiding judge must
promptly enter an order on the motion.
(B) Motions to Withdraw as Counsel. If appellate
counsel seeks leave to withdraw from representation of an indigent
parent, the motion to withdraw must be served on the parent and
must contain a certification that, after a conscientious review of the
record, the attorney has determined in good faith that there are no
meritorious grounds on which to base an appeal. The parent will be
permitted to file a brief pro se, or through subsequently retained
counsel, within 20 days of the issuance of an order granting the
motion to withdraw. Within 5 days of the issuance of an order
granting the motion to withdraw, appellate counsel must file a
notice with the court certifying that counsel has forwarded a copy of
the record and the transcript(s) of the proceedings to the parent or
that counsel is unable to forward a copy of the record and the
transcript(s) of the proceedings because counsel cannot locate the
parent after making diligent efforts.
(C) Motions for Extensions of Time. An extension
of time will be granted only for extraordinary circumstances in
which the extension is necessary to preserve the constitutional
rights of a party, or in which substantial evidence exists to
demonstrate that without the extension the child’s best interests
will be harmed. The extension will be limited to the number of days
necessary to preserve the rights of the party or the best interests of
the child. The motion must state that the appeal is from a final
order of termination of parental rights or of dependency, and must
set out the extraordinary circumstances that necessitate an
extension, the amount of time requested, and the effect an
extension will have on the progress of the case.
(5) Oral Argument. A request for oral argument must be
in a separate document served by a party not later than the time
when the first brief of that party is due.
(6) Rehearing; Rehearing En Banc; Clarification;
Certification; Issuance of Written Opinion. Motions for rehearing,
rehearing en banc, clarification, certification, and issuance of a
written opinion must be in accordance with rules 9.330 and 9.331,
except that no response to these motions is permitted unless
ordered by the court.
(7) The Mandate. The clerk of the court must issue
such mandate or process as may be directed by the court as soon
as practicable.
(h) Expedited Review. The court must give priority to
appeals under this rule.
(i) Ineffective Assistance of Counsel for Parents’
Claims—Special Procedures and Time Limitations Applicable to
Appeals of Orders in Termination of Parental Rights
Proceedings Involving Ineffective Assistance of Counsel Claims.
(1) Applicability. Subdivision (i) applies only to appeals
to the district courts of appeal of orders in termination of parental
rights proceedings involving a parent’s claims of ineffective
assistance of counsel.
(2) Rendition. A motion claiming ineffective assistance
of counsel filed in accordance with Florida Rule of Juvenile
Procedure 8.530 will toll rendition of the order terminating parental
rights under Florida Rule of Appellate Procedure 9.020 until the
lower tribunal files a signed, written order on the motion, except as
provided by Florida Rules of Juvenile Procedure 8.530.
(3) Scope of Review. Any appeal from an order denying
a motion alleging the ineffective assistance of counsel must be
raised and addressed within an appeal from the order terminating
parental rights.
(4) Ineffective Assistance of Counsel Motion Filed After
Commencement of Appeal. If an appeal is pending, a parent may file
a motion claiming ineffective assistance of counsel pursuant to
Florida Rule of Juvenile Procedure 8.530 if the filing occurs within
20 days of rendition of the order terminating parental rights.
(A) Stay of Appellate Proceeding. A parent or
counsel appointed pursuant to Florida Rule of Juvenile Procedure
8.530 must file a notice of a timely filed, pending motion claiming
ineffective assistance of counsel. The notice automatically stays the
appeal until the lower tribunal renders an order disposing of the
motion.
(B) Supplemental Record; Transcripts of
Proceedings. The appellant must file a second designation to the
court reporter, including the name(s) of the individual court
reporter(s). The appellant must serve the designation on the court
reporter on the date of filing and must state that the appeal is from
an order of termination of parental rights, and that the court
reporter must provide the transcript of the hearing on the motion
claiming ineffective assistance of counsel within 20 days of the date
of service. Within 20 days of the date of service of the designation,
the court reporter must transcribe and file with the clerk of the
lower tribunal the transcript and sufficient copies for all parties
exempt from service by e-mail as set forth in the Florida Rules of
General Practice and Judicial Administration. If extraordinary
reasons prevent the reporter from preparing the transcript within
the 20 days, the reporter must request an extension of time, state
the number of additional days requested, and state the
extraordinary reasons that would justify the extension.
(C) Duties of the Clerk; Preparation and
Transmission of Supplemental Record. If the clerk of circuit court
has already transmitted the record on appeal of the order
terminating parental rights, the clerk must automatically
supplement the record on appeal with any motion pursuant to
Florida Rule of Juvenile Procedure 8.530, the resulting order, and
the transcript from the hearing on the motion. The clerk must
electronically transmit the supplement to the court and serve the
parties within 5 days of the filing of the order ruling on the motion,
or within 5 days of filing of the transcript from the hearing on the
motion by the designated court reporter, whichever is later.
Committee Notes
1996 Adoption. The reference in subdivision (a) to cases
involving families and children in need of services encompasses
only those cases in which an order has been entered adjudicating a
child or family in need of services under chapter 39, Florida
Statutes.
Subdivision (c) requires the parties to use initials in all
references to the child and parents in all briefs and other papers
filed in the court in furtherance of the appeal. It does not require
the deletion of the names of the child and parents from pleadings
and other papers transmitted to the court from the lower tribunal.
2006 Amendment. The title to subdivision (b) was changed
from “Appeals Permitted” to clarify that this rule addresses who
may take an appeal in matters covered by this rule. The
amendment is intended to approve the holding in D.K.B. v.
Department of Children & Families, 890 So. 2d 1288 (Fla. 2d DCA
2005), that non-final orders in these matters may be appealed only
if listed in rule 9.130.
2009 Amendment. The rule was substantially amended
following the release of the Study of Delay in Dependency/Parental
Termination Appeals Supplemental Report and Recommendations
(June 2007) by the Commission on District Court of Appeal
Performance and Accountability. The amendments are generally
intended to facilitate expedited filing and resolution of appellate
cases arising from dependency and termination of parental rights
proceedings in the lower tribunal. Subdivision (g)(4)(A) authorizes
motions requesting appointment of appellate counsel only when a
substantive provision of general law provides for appointment of
appellate counsel. Section 27.5304(6), Florida Statutes (2008),
limits appointment of appellate counsel for indigent parents to
appeals from final orders adjudicating or denying dependency or
termination of parental rights. In all other instances, section
27.5304(6), Florida Statutes, requires appointed trial counsel to
prosecute or defend appellate cases arising from a dependency or
parental termination proceeding in the lower tribunal.
RULE 9.147 cases. APPEAL PROCEEDINGS TO REVIEW FINAL
ORDERS DISMISSING PETITIONS FOR JUDICIAL
WAIVER OF PARENTAL NOTICE AND CONSENT
OR CONSENT ONLY TO TERMINATION OF
PREGNANCY
(a) Applicability. Appeal proceedings to review final orders
dismissing a petition for judicial waiver of parental notice and
consent or consent only to the termination of a pregnancy will be as
in civil cases, except as modified by this rule.
(b) Fees. No filing fee will be required for any part of an
appeal of the dismissal of a petition for a judicial waiver of parental
notice and consent or consent only to the termination of a
pregnancy.
(c) Transmission of Notice of Appeal and Electronic
Record. Within 2 days of the filing of the notice of appeal, the clerk
of the lower tribunal must electronically transmit the notice of
appeal and the record simultaneously. The clerk of the lower
tribunal must prepare the record as described in rule 9.200(d).
(d) Disposition of Appeal. The court must render its
decision on the appeal no later than 7 days from the receipt of the
notice of appeal. If no decision is rendered within that time period,
the order is deemed reversed, the petition is deemed granted, and
the clerk of the court must place a certificate to that effect in the file
and provide the appellant, without charge, with a certified copy of
the certificate.
(e) Briefs and Oral Argument. Briefs, oral argument, or
both may be ordered at the discretion of the court. The appellant
may move for leave to file a brief and may request oral argument.
(f) Confidentiality of Proceedings. The appeal and all
proceedings within must be confidential so that the minor remains
anonymous. The file must remain sealed unless otherwise ordered
by the court.
(g) Procedure Following Reversal. If the dismissal of the
petition is reversed on appeal, the clerk of the court must furnish
the appellant, without charge, with either a certified copy of the
decision or the clerk of the court’s certificate for delivery to the
minor’s physician.
Committee Notes
2014 Amendment. The previous version of this rule was
found at rule 9.110(n).
RULE 9.148 cases. APPEAL PROCEEDINGS TO REVIEW ORDERS
UNDER FLORIDA MENTAL HEALTH/BAKER ACT
(a) Applicability. Appeal proceedings in cases under The
Florida Mental Health Act, also called The Baker Act, sections
394.451–394.47892, Florida Statutes, will be as in civil cases
except to the extent those rules are modified by this rule.
(b) Stay of Proceedings. Except as provided by general law,
a party seeking to stay a final or nonfinal order pending review
must file a motion in the lower tribunal, which will have continuing
jurisdiction, in its discretion, to grant, modify, or deny such relief. A
party may seek review of a lower tribunal’s order entered under this
rule by filing a motion in the court.
(c) Retention of Jurisdiction. Transmission of the record to
the court does not remove the jurisdiction of the lower tribunal to
conduct judicial reviews or other proceedings related to the health
and welfare of the patient pending appeal.
(d) References to Patient. When the patient is a party to
the appeal, the appeal must be docketed and any documents filed
in the court must be titled with the initials, but not the name, of the
patient and the court case number. All references to the patient in
briefs, other documents, and the decision of the court must be by
initials.
(e) Special Procedures and Time Limitations Applicable
to Appeals of Orders in Florida Mental Health/Baker Act
Proceedings.
(1) Applicability. This subdivision applies only to
appeals of final orders to the district courts of appeal.
(2) The Record. The record must be prepared in
accordance with rule 9.200, except as modified by this subdivision.
(A) Transcripts of Proceedings. The appellant must
file any designation to the court reporter, including the name(s) of
the individual court reporter(s), if applicable, with the notice of
appeal. The designation must be served on the court reporter on the
date of filing and must state that the appeal is from an order under
The Florida Mental Health Act/Baker Act and that the court
reporter must provide the transcript(s) designated within 20 days of
the date of service. Within 20 days of the date of service of the
designation, the court reporter must transcribe and file with the
clerk of the lower tribunal the transcripts. If extraordinary reasons
prevent the reporter from preparing the transcript(s) within the 20
days, the reporter must request an extension of time, must state
the number of additional days requested, and must state the
extraordinary reasons that would justify the extension.
(B) Directions to the Clerk of the Lower Tribunal,
Duties of the Clerk of the Lower Tribunal, Preparation and
Transmission of the Record. Any directions to the clerk of the lower
tribunal from the appellant must be filed with the notice of appeal.
The clerk of the lower tribunal must electronically transmit the
record to the court within 7 days after the date the court reporter
files the transcript(s) or, if a designation to the court reporter has
not been filed, within 7 days after the filing of the notice of appeal.
(3) Briefs.
(A) In General. Briefs must be prepared and filed
in accordance with rule 9.210(a)–(e), (g), and (h).
(B) Times for Service. The initial brief must be
served within 20 days after service of the record on appeal. The
answer brief must be served within 20 days after service of the
initial brief. The reply brief, if any, must be served within 7 days
after the service of the answer brief. In any appeal or cross-appeal,
if more than 1 initial or answer brief is authorized, the responsive
brief must be served within 20 days after the last initial brief or
within 7 days after the last answer brief was served. If the last
authorized initial or answer brief is not served, the responsive brief
must be served within 20 days after the last authorized initial brief
or within 7 days after the last authorized answer brief could have
been timely served.
(C) Anders Briefs. Within the time required for
service of the initial brief, counsel may file a brief stating that an
appeal would be frivolous. Within 7 days of serving the brief,
counsel must file a notice with the court certifying that counsel has
forwarded a copy of the record and a copy of the transcript(s) of the
proceedings to the appellant or that counsel is unable to forward a
copy of the record and the transcript(s) of the proceedings after
making diligent efforts. The court will independently review the
record to discover any arguable issues apparent on the face of the
record. On the discovery of an arguable issue, the court will order
briefing on the issues identified by the court.
(4) Motions for Extensions of Time. An extension of time
will be granted only for extraordinary circumstances. The motion
must state that the appeal is from an order under The Florida
Mental Health Act/Baker Act and must set out the extraordinary
circumstances that necessitate an extension, the amount of time
requested, and the effect an extension will have on the progress of
the case.
(5) Oral Argument. A request for oral argument must be
in a separate document served by a party not later than the time
when the first brief of that party is due.
(6) Rehearing; Rehearing En Banc; Clarification;
Certification; Issuance of Written Opinion. Motions for rehearing,
rehearing en banc, clarification, certification, and issuance of a
written opinion must be in accordance with rules 9.330 and 9.331,
except that no response to these motions is permitted unless
ordered by the court.
(7) The Mandate. The clerk of the district court of
appeal must issue such mandate or process as may be directed by
the court as soon as practicable.
(f) Expedited Review. The court must give priority to
appeals under this rule.
RULE 9.150 cases. DISCRETIONARY PROCEEDINGS TO REVIEW
CERTIFIED QUESTIONS FROM FEDERAL
COURTS
(a) Applicability. On either its own motion or that of a
party, the Supreme Court of the United States or a United States
court of appeals may certify 1 or more questions of law to the
Supreme Court of Florida if the answer is determinative of the
cause and there is no controlling precedent of the Supreme Court of
Florida.
(b) Certificate. The question(s) may be certified in an
opinion by the federal court or by a separate certificate, but the
federal court should provide the style of the case, a statement of the
facts showing the nature of the cause and the circumstances out of
which the questions of law arise, and the questions of law to be
answered. The certificate shall be certified to the Supreme Court of
Florida by the clerk of the federal court.
(c) Record. The Supreme Court of Florida, in its discretion,
may require copies of all or any portion of the record before the
federal court to be filed if the record may be necessary to the
determination of the cause.
(d) Briefs. If the Supreme Court of Florida, in its discretion,
requires briefing, it will issue an order establishing the order and
schedule of briefs.
(e) Costs. The taxation of costs for these proceedings is a
matter for the federal court and is not governed by these rules.
Committee Notes
1977 Amendment. This rule retains the substance of former
rule 4.61. Except for simplification of language, the only change
from the former rule is that answer and reply briefs are governed by
the same time schedule as other cases. It is contemplated that the
federal courts will continue the current practice of directing the
parties to present a stipulated statement of the facts.
1980 Amendment. This rule is identical to former rule 9.510.
It has been renumbered to reflect the addition to the Florida
Constitution of article V, section 3(b)(6), which permits
discretionary supreme court review of certified questions from the
federal courts. Answer briefs and reply briefs will continue to be
governed by the same time schedule as in other cases.
RULE 9.160 cases. DISCRETIONARY PROCEEDINGS TO REVIEW
DECISIONS OF COUNTY COURTS
(a) Applicability. This rule applies to those proceedings that
invoke the discretionary jurisdiction of the district courts of appeal
to review county court orders described in rule 9.030(b)(4).
(b) Commencement. Any appeal of a final order certified by
the county court to involve a question that may have statewide
application, and that is of great public importance or will affect the
uniform administration of justice, must be taken to the district
court of appeal. Jurisdiction of the district court of appeal under
this rule must be invoked by filing a notice and the order containing
certification with the clerk of the lower tribunal. The time for filing
the appeal will be the same as if the appeal were being taken to the
circuit court.
(c) Notice. The notice must be in substantially the form
prescribed by rule 9.900(a), except that such notice should refer to
the fact of certification. A conformed copy of the order or orders
designated in the notice of appeal must be attached to the notice
together with any order entered on a timely motion postponing
rendition of the order or orders appealed. The notice must be
accompanied by any required filing fee except as provided in rule
9.430 for proceedings by indigents.
(d) Method of Certification. The certification may be made
in the order subject to appeal or in any order disposing of a motion
that has postponed rendition as defined in rule 9.020(h). The
certification must include:
(1) findings of fact and conclusions of law; and
(2) a concise statement of the issue or issues that may
have statewide application, and that are of great public importance
or will affect the uniform administration of justice.
(e) Discretion.
(1) Any party may suggest that an order be certified as
involving a question that may have statewide application, and that
is of great public importance or will affect the uniform
administration of justice. However, the decision to certify will be
within the absolute discretion of the county court and may be made
by the county court on its own motion.
(2) The district court of appeal, in its absolute
discretion, will by order accept or reject jurisdiction. Until the entry
of such order, temporary jurisdiction will be in the district court of
appeal.
(f) Scope of Review.
(1) If the district court of appeal accepts the appeal, it
will decide all issues that would have been subject to appeal if the
appeal had been taken to the circuit court.
(2) If the district court of appeal declines to accept the
appeal, it must transfer the case together with the filing fee to the
circuit court that has appellate jurisdiction.
(g) Record. The record must be prepared and transmitted in
accord with rule 9.110(e).
(h) Briefs. The form of the briefs and the briefing schedule
will be in accord with rules 9.110(f), 9.210, and 9.220.
(i) Cross-Appeal. Cross-appeals will be permitted according
to the applicable rules only in those cases in which a cross-appeal
would have been authorized if the appeal had been taken to circuit
court.
(j) Applicability of Other Rules. All other matters
pertaining to the appeal will be governed by the rules that would be
applicable if the appeal had been taken to circuit court.
Committee Notes
1984 Amendment. This rule was added to implement the
amendments to sections 26.012 and 924.08 and the adoption of
section 34.195 by the 1984 Legislature. Section 34.195 authorizes
only the certification of final judgments, but section 924.08
authorizes the certification of non-final orders in criminal cases.
Therefore, this rule does not provide for appeals from non-final
orders in civil cases. Under the rationale of State v. Smith, 260 So.
2d 489 (Fla. 1972), the authority to provide for appeals from non-
final orders may rest in the supreme court rather than in the
legislature. However, in keeping with the spirit of the legislation, the
rule was drafted to permit certification of those non-final orders in
criminal cases that would otherwise be appealable to the circuit
court.
Sections 26.012 and 924.08 authorize only the certification of
orders deemed to be of great public importance. However, section
34.195 refers to the certification of questions in final judgments if
the question may have statewide application and is of great public
importance or affects the uniform administration of justice. The
committee concluded that any order certified to be of great public
importance might have statewide application and that any order
that would affect the uniform administration of justice would also
be of great public importance. Therefore, the additional statutory
language was deemed to be surplusage, and the rule refers only to
the requirement of certifying the order to be of great public
importance.
The district court of appeal may, in its discretion, decline to
accept the appeal, in which event it shall be transferred to the
appropriate circuit court for disposition in the ordinary manner.
Except as stated in the rule, the procedure shall be the same as
would be followed if the appeal were being taken to circuit court.
The rule does not authorize review of certified orders by common
law certiorari.
It is recommended that in those cases involving issues of great
public importance, parties should file suggestions for certification
before the entry of the order from which the appeal may be taken.
However, parties are not precluded from suggesting certification
following the entry of the order except that such suggestion, by
itself, will not postpone rendition as defined in rule 9.020(h).
1992 Amendment. Subdivision (c) was amended to require
that the appellant, except in criminal cases, attach to its notice of
appeal a conformed copy of any orders designated in the notice of
appeal, along with any orders on motions that postponed the
rendition of orders appealed.
2020 Note. Section 924.08, referred to in these Committee
Notes under the 1984 Amendment, was repealed, effective January
1, 2021.
2023 Amendment. The language in section 34.017(1), Florida
Statutes (1984), referred to as section 34.195, Florida Statutes, in
the 1984 Committee Note and characterized as surplusage, was
retained by the 2020 Legislature when it amended section 34.017,
Florida Statutes (2020), and repealed sections 26.012(1)(c) and
924.08, Florida Statutes. The present amendment conforms the
language of the rule to the existing statutory language.
RULE 9.170 cases. APPEAL PROCEEDINGS IN PROBATE AND
GUARDIANSHIP CASES
(a) Applicability. Appeal proceedings in probate and
guardianship cases will be as in civil cases, except as modified by
this rule.
(b) Appealable Orders. Except for proceedings under rule
9.100 and rule 9.130(a), appeals of orders rendered in probate and
guardianship cases will be limited to orders that finally determine a
right or obligation of an interested person as defined in the Florida
Probate Code. Orders that finally determine a right or obligation
include, but are not limited to, orders that:
(1) determine a petition or motion to revoke letters of
administration or letters of guardianship;
(2) determine a petition or motion to revoke probate of
a will;
(3) determine a petition for probate of a lost or
destroyed will;
(4) grant or deny a petition for administration under
section 733.2123, Florida Statutes;
(5) grant heirship, succession, entitlement, or
determine the persons to whom distribution should be made;
(6) remove or refuse to remove a fiduciary;
(7) refuse to appoint a personal representative or
guardian;
(8) determine a petition or motion to determine
incapacity or to remove rights of an alleged incapacitated person or
ward;
(9) determine a motion or petition to restore capacity or
rights of a ward;
(10) determine a petition to approve the settlement of
minors’ claims;
(11) determine apportionment or contribution of estate
taxes;
(12) determine an estate’s interest in any property;
(13) determine exempt property, family allowance, or the
homestead status of real property;
(14) authorize or confirm a sale of real or personal
property by a personal representative;
(15) make distributions to any beneficiary;
(16) determine amount and order contribution in
satisfaction of elective share;
(17) determine a motion or petition for enlargement of
time to file a claim against an estate;
(18) determine a motion or petition to strike an objection
to a claim against an estate;
(19) determine a motion or petition to extend the time to
file an objection to a claim against an estate;
(20) determine a motion or petition to enlarge the time to
file an independent action on a claim filed against an estate;
(21) settle an account of a personal representative,
guardian, or other fiduciary;
(22) discharge a fiduciary or the fiduciary’s surety;
(23) grant an award of attorneys’ fees or costs;
(24) deny entitlement to attorneys’ fees or costs; or
(25) approve a settlement agreement on any of the
matters listed above in (b)(1)–(b)(24) or authorizing a compromise
under section 733.708, Florida Statutes.
(c) Record; Alternative Appendix. An appeal under this
rule may proceed on a record prepared by the clerk of the lower
tribunal or on appendices to the briefs, as elected by the parties
within the time frames set forth in rule 9.200(a)(2) for designating
the record. The clerk of the lower tribunal must prepare a record on
appeal in accordance with rule 9.200 unless the appellant directs
that no record should be prepared; a copy of such direction must be
served on the court when it is served on the clerk of the lower
tribunal. Any other party may direct the clerk to prepare a record in
accordance with rule 9.200; a copy of such direction must be served
on the court when it is served on the clerk of the lower tribunal. If
no record is prepared under this rule, the appeal must proceed
using appendices under rule 9.220.
(d) Briefs. The appellant’s initial brief, accompanied by an
appendix as prescribed by rule 9.220 (if applicable), must be served
within 70 days of filing the notice of appeal. Additional briefs must
be served as prescribed by rule 9.210.
(e) Scope of Review. The court may review any ruling or
matter related to the order on appeal occurring before the filing of
the notice of appeal, except any order that was appealable under
this rule. Multiple orders that are separately appealable under rule
9.170(b) may be reviewed by a single notice if the notice is timely
filed as to each such order.
RULE 9.180 cases. APPEAL PROCEEDINGS TO REVIEW WORKERS’
COMPENSATION CASES
(a) Applicability. Appellate review of proceedings in workers’
compensation cases will be as in civil cases except as specifically
modified in this rule.
(b) Jurisdiction.
(1) Appeal. The First District Court of Appeal (the court)
must review by appeal any final order, as well as any nonfinal order
of a lower tribunal that adjudicates:
(A) jurisdiction;
(B) venue; or
(C) compensability, provided that the order
expressly finds an injury occurred within the scope and course of
employment and that 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.
(2) Waiver of Review; Abbreviated Final Orders. Unless
a request for findings of fact and conclusions of law is timely filed,
review by appeal of an abbreviated final order will 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.
(3) Commencement. Jurisdiction of the court under this
rule must be invoked by filing a notice of appeal with the clerk of
the lower tribunal within 30 days of the date the lower tribunal
sends to the parties the order to be reviewed either by mail or by
electronic means approved by the deputy chief judge, which date
will be the date of rendition.
(4) Notice of Appeal. The notice must be substantially in
the form prescribed by rule 9.900(a) or (c), and must contain a brief
summary of the type of benefits affected, including a statement
setting forth the time periods involved which must be substantially
in the following form:
I hereby certify that this appeal affects only the following periods
and classifications of benefits and medical treatment:
1. Compensation for .....(TTD, TPD, wage loss,
impairment benefits, PTD, funeral benefits, or death benefits).....
from .....(date)..... to .....(date)......
2. Medical benefits.
3. Rehabilitation.
4. Reimbursement from the SDTF for benefits paid
from .....(date)..... to .....(date)......
5. Contribution for benefits paid from .....(date)..... to
.....(date)......
(c) Jurisdiction of Lower Tribunal.
(1) Substantive Issues. The lower tribunal retains
jurisdiction to decide the issues that have not been adjudicated and
are not the subject of pending appellate review.
(2) Settlement. At any time before the record on appeal
is transmitted to the court, the lower tribunal will have the
authority to approve settlements or correct clerical errors in the
order appealed.
(3) Relinquishment of Jurisdiction by Court to Consider
Settlement. If, after the record on appeal is transmitted, settlement
is reached, the parties must file a joint motion stating that a
settlement has been reached and requesting relinquishment of
jurisdiction to the lower tribunal for any necessary approval of the
settlement. The court may relinquish jurisdiction for a specified
period for entry of an appropriate order. In the event the Division of
Workers’ Compensation has advanced the costs of preparing the
record on appeal or the filing fee, a copy of the joint motion must be
furnished to the Division of Workers’ Compensation by the
appellant.
(A) Notice. On or before the date specified in the
order relinquishing jurisdiction, the parties must file a joint notice
of disposition of the settlement with a conformed copy of any order
entered on the settlement.
(B) Costs. Any order approving a settlement must
provide where appropriate for the assessment and recovery of
appellate costs, including any costs incurred by the Division of
Workers’ Compensation for insolvent appellants.
(d) Benefits Affected. Benefits specifically referenced in the
notice of appeal may be withheld as provided by law pending the
outcome of the appeal. Otherwise, benefits awarded must be paid
as required by law.
(1) Abandonment. If the appellant or cross-appellant
fails to argue entitlement to benefits set forth in the notice of appeal
in the appellant’s or cross-appellant’s initial brief, the challenge to
such benefits will be deemed abandoned. If there is a dispute as to
whether a challenge to certain benefits has been abandoned, the
court upon motion will make that determination.
(2) Payments of Benefits When Challenged Benefits Are
Abandoned. When benefits challenged on appeal have been
abandoned under subdivision (d)(1) above, benefits no longer
affected by the appeal are payable within 30 days of the service of
the brief together with interest as required under section 440.20,
Florida Statutes, from the date of the order of the lower tribunal
making the award.
(3) Payment of Benefits After Appeal. If benefits are
ordered paid by the court on completion of the appeal, they must be
paid, together with interest as required under section 440.20,
Florida Statutes, within 30 days after the court’s mandate. If the
order of the court is appealed to the supreme court, benefits
determined due by the court may be stayed in accordance with rule
9.310. Benefits ordered paid by the supreme court must be paid
within 30 days of the court’s mandate.
(e) Intervention by Division of Workers’ Compensation.
(1) District Court of Appeal. Within 30 days of the date
of filing a notice or petition invoking the jurisdiction of the court the
Division of Workers’ Compensation may intervene by filing a notice
of intervention as a party appellant/petitioner or
appellee/respondent with the court and take positions on any
relevant matters.
(2) Supreme Court of Florida. If review of an order of the
court is sought in the supreme court, the Division of Workers’
Compensation may intervene in accordance with these rules. The
clerk of the supreme court must provide a copy of the pertinent
documents to the Division of Workers’ Compensation.
(3) Division of Workers’ Compensation Not a Party Until
Notice to Intervene Is Filed. Until the notice of intervention is filed,
the Division of Workers’ Compensation will not be considered a
party.
(f) Record Contents; Final Orders.
(1) Transcript; Order; Other Documents. The record
must contain the claim(s) or petition(s) for benefits, notice(s) of
denial, pretrial stipulation, pretrial order, trial memoranda,
depositions or exhibits admitted into evidence, any motion for
rehearing and response, order on motion for rehearing, transcripts
of any hearings before the lower tribunal, and the order appealed.
The parties may designate other items for inclusion in or omission
from the record in accordance with rule 9.200.
(2) Proffered Evidence. Evidence proffered but not
introduced into evidence at the hearing will not be considered
unless its admissibility is an issue on appeal and the question is
properly designated for inclusion in the record by a party.
(3) Certification; Transmission. The lower tribunal must
certify and transmit the record to the court as prescribed by these
rules.
(4) Stipulated Record. The parties may stipulate to the
contents of the record. In such a case the record will consist of the
stipulated statement and the order appealed which the lower
tribunal must certify as the record on appeal.
(5) Costs.
(A) Notice of Estimated Costs. Within 5 days after
the contents of the record have been determined under these rules,
the lower tribunal must notify the appellant of the estimated cost of
preparing the record. The lower tribunal also must notify the
Division of Workers’ Compensation of the estimated record costs if
the appellant files a verified petition to be relieved of costs and a
sworn financial affidavit.
(B) Deposit of Estimated Costs. Within 15 days
after the notice of estimated costs is served, the appellant must
deposit a sum of money equal to the estimated costs with the lower
tribunal.
(C) Failure to Deposit Costs. If the appellant fails
to deposit the estimated costs within the time prescribed, the lower
tribunal must notify the court, which may dismiss the appeal.
(D) State Agencies; Waiver of Costs. Any self-
insured state agency or branch of state government, including the
Division of Workers’ Compensation and the Special Disability Trust
Fund, need not deposit the estimated costs.
(E) Costs. If additional costs are incurred in
correcting, amending, or supplementing the record, the lower
tribunal must assess such costs against the appropriate party. If
the Division of Workers’ Compensation is obligated to pay the costs
of the appeal due to the appellant’s indigency, it must be given
notice of any proceeding to assess additional costs. Within 15 days
after the entry of the order assessing costs, the assessed party must
deposit the sums so ordered with the lower tribunal. The lower
tribunal must promptly notify the court if costs are not deposited as
required.
(6) Transcript(s) of Proceedings.
(A) Selection of Court Reporter by Lower Tribunal.
The deputy chief judge of compensation claims will select a court
reporter or a transcriptionist to transcribe any hearing(s). The
deputy chief judge who makes the selection must give the parties
notice of the selection.
(B) Objection to Court Reporter or Transcriptionist
Selected. Any party may object to the court reporter or
transcriptionist selected by filing written objections with the judge
who made the selection within 15 days after service of notice of the
selection. Within 5 days after filing the objection, the judge must
hold a hearing on the issue. In such a case, the time limits
mandated by these rules will be appropriately extended.
(C) Certification of Transcript by Court Reporter or
Transcriptionist. The court reporter or transcriptionist selected by
the deputy chief judge of compensation claims must certify and
deliver an electronic version of the transcript(s) to the clerk of the
office of the judges of compensation claims. The transcript(s) must
be delivered in sufficient time for the clerk of the office of the judges
of compensation claims to incorporate transcript(s) in the record.
The court reporter or transcriptionist must promptly notify all
parties in writing when the transcript(s) is delivered to the clerk of
the office of the judges of compensation claims.
(7) Preparation; Certification; Transmission of the
Record. The deputy chief judge of compensation claims must
designate the person to prepare the record. The clerk of the office of
the judges of compensation claims must supervise the preparation
of the record. The record must be transmitted to the lower tribunal
in sufficient time for the lower tribunal to review the record and
transmit it to the court. The lower tribunal must review the original
record, certify that it was prepared in accordance with these rules,
and within 60 days of the notice of appeal being filed transmit the
record to the court. The lower tribunal must provide Portable
Document Format (“PDF”) file of the record to all counsel of record
and all unrepresented parties.
(8) Extensions. For good cause, the lower tribunal may
extend by no more than 30 days the time for filing the record with
the court. Any further extension of time may be granted by the
court.
(9) Applicability of Rule 9.200. Rules 9.200(a)(3), (c), (d),
and (f) apply to preparation of the record in appeals under this rule.
(g) Relief From Filing Fee and Cost; Indigency.
(1) Indigency Defined. Indigency for the purpose of this
rule is synonymous with insolvency as defined by section 440.02,
Florida Statutes.
(2) Filing Fee.
(A) Authority. An appellant may be relieved of
paying filing fees by filing a verified petition or motion of indigency
under section 57.081(1), Florida Statutes, with the lower tribunal.
(B) Time. The verified petition or motion of
indigency must be filed with the lower tribunal together with the
notice of appeal.
(C) Verified Petition; Contents. The verified
petition or motion must contain a statement by the appellant to be
relieved of paying filing fees due to indigency and the appellant’s
inability to pay the charges. The petition must request that the
lower tribunal enter an order or certificate of indigency. One of the
following must also be filed in support of the verified petition or
motion:
(i) If the appellant is unrepresented by
counsel, a financial affidavit; or
(ii) If the appellant is represented by counsel,
counsel must certify that counsel has investigated:
a. the appellant’s financial condition
and finds the appellant indigent; and
b. the nature of appellant’s position
and believes it to be meritorious as a matter of law.
Counsel must also certify that counsel has not been paid or
promised payment of a fee or other remuneration for such legal
services except for the amount, if any, ultimately approved by the
lower tribunal to be paid by the employer/carrier if such
entitlement is determined by the court.
(D) Service. The appellant must serve a copy of the
verified petition or motion of indigency, including the appellant’s
financial affidavit or counsel’s certificate, whichever is applicable,
on all interested parties and the clerk of the court.
(E) Order or Certificate of Indigency. The lower
tribunal must review the verified petition or motion for indigency
and supporting documents without a hearing, and if the lower
tribunal finds compliance with section 57.081(1), Florida Statutes,
may issue a certificate of indigency or enter an order granting said
relief, at which time the appellant may proceed without further
application to the court and without payment of any filing fees. If
the lower tribunal enters an order denying relief, the appellant must
deposit the filing fee with the lower tribunal within 15 days from the
date of the order unless timely review is sought by motion filed with
the court.
(3) Costs of Preparation of Record.
(A) Authority. An appellant may be relieved in
whole or in part from the costs of the preparation of the record on
appeal by filing with the lower tribunal a verified petition to be
relieved of costs and a copy of the designation of the record on
appeal. The verified petition to be relieved of costs must contain a
sworn financial affidavit as described in subdivision (g)(3)(D).
(B) Time. The verified petition to be relieved of
costs must be filed within 15 days after service of the notice of
estimated costs. A verified petition filed before the date of service of
the notice of estimated costs will be deemed not timely.
(C) Verified Petition; Contents. The verified
petition must contain a request by the appellant to be relieved of
costs due to insolvency. The petition also must include a statement
by the appellant’s attorney or the appellant, if not represented by an
attorney, that the appeal was filed in good faith and the court
reasonably could find reversible error in the record and must state
with particularity the specific legal and factual grounds for that
opinion.
(D) Sworn Financial Affidavit; Contents. With the
verified petition to be relieved of costs, the appellant must file a
sworn financial affidavit listing income and assets, including
marital income and assets, and expenses and liabilities.
(E) Verified Petition and Sworn Financial Affidavit;
Service. The appellant must serve a copy of the verified petition to
be relieved of costs, including the sworn financial affidavit, on all
interested parties, including the Division of Workers’ Compensation,
the office of general counsel of the Department of Financial
Services, and the clerk of the court.
(F) Hearing on Petition to Be Relieved of Costs.
After giving 15 days’ notice to the Division of Workers’
Compensation and all parties, the lower tribunal must promptly
hold a hearing and rule on the merits of the petition to be relieved
of costs. However, if no objection to the petition is filed by the
division or a party within 20 days after the petition is served, the
lower tribunal may enter an order on the merits of the petition
without a hearing.
(G) Extension of Appeal Deadlines. If the petition
to be relieved of the entire cost of the preparation of the record on
appeal is granted, the 60-day period allowed under these rules for
the preparation of the record will begin to run from the date of the
order granting the petition. If the petition to be relieved of the cost
of the record is denied or only granted in part, the petitioner must
deposit the estimated costs with the lower tribunal, or file a motion
requesting a determination of indigency, within 15 days from the
date the order denying the petition is entered. The 60-day period
allowed under these rules for the preparation of the record will
begin from the date the estimated cost is deposited with the lower
tribunal. If the petition to be relieved of the cost of the record is
withdrawn before ruling, then the petitioner must deposit the
estimated costs with the lower tribunal at the time the petition is
withdrawn and the 60-day period for preparation of the record will
begin to run from the date the petition is withdrawn.
(H) Payment of Cost for Preparation of Record by
Administration Trust Fund. If the petition to be relieved of costs is
granted, the lower tribunal may order the Workers’ Compensation
Administration Trust Fund to pay the cost of the preparation of the
record on appeal pending the final disposition of the appeal. The
lower tribunal must provide a copy of such order to all interested
parties, including the division, general counsel of the Department of
Financial Services, and the clerk of the court.
(I) Reimbursement of Administration Trust Fund
If Appeal Is Successful. If the Administration Trust Fund has paid
the costs of the preparation of the record and the appellant prevails
at the conclusion of the appeal, the appellee must reimburse the
fund the costs paid within 30 days of the mandate issued by the
court or supreme court under these rules.
(h) Briefs and Motions Directed to Briefs.
(1) Briefs; Final Order Appeals. Within 30 days after the
lower tribunal certifies the record to the court, the appellant must
serve the initial brief. Additional briefs must be served as prescribed
by rule 9.210.
(2) Briefs; Nonfinal Appeals. The appellant’s initial brief,
accompanied by an appendix as prescribed by rule 9.220, must be
served within 15 days of filing the notice. Additional briefs must be
served as prescribed by rule 9.210.
(3) Motions to Strike. Motions to strike a brief or
portions of a brief will not be entertained by the court. However, a
party, in its own brief, may call to the court’s attention a breach of
these rules. If no further responsive brief is authorized,
noncompliance may be brought to the court’s attention by filing a
suggestion of noncompliance. Statements in briefs not supported by
the record will be disregarded and may constitute cause for
imposition of sanctions.
(i) Attorneys’ Fees and Appellate Costs.
(1) Costs. Appellate costs must be taxed as provided by
law. Taxable costs will include those items listed in rule 9.400 and
costs for a transcript included in an appendix as part of an appeal
of a nonfinal order.
(2) Attorneys’ Fees. A motion for attorneys’ fees must
be served in accordance with rule 9.400(b).
(3) Entitlement and Amount of Fees and Costs. If the
court determines that an appellate fee is due, the lower tribunal will
have jurisdiction to conduct hearings and consider evidence
regarding the amount of the attorneys’ fee and costs due at any
time after the mandate, if applicable, or the final order or opinion
disposing of the case is issued, whichever is later.
(4) Review. Review will be in accordance with rule
9.400(c).
Committee Notes
1996 Adoption. Rule 9.180 is intended to supersede rules
4.160, 4.161, 4.165, 4.166, 4.170, 4.180, 4.190, 4.220, 4.225,
4.230, 4.240, 4.250, 4.260, 4.265, 4.270, and 4.280 of the Rules of
Workers’ Compensation Procedure. In consolidating those rules into
one rule and incorporating them into the Rules of Appellate
Procedure, duplicative rules have been eliminated. The change was
not intended to change the general nature of workers’ compensation
appeals. It is contemplated there still may be multiple “final orders.”
See 1980 Committee Note, Fla. R. Work. Comp. P. 4.160.
The orders listed in rules 9.180(b)(1)(A), (B), and (C) are the
only nonfinal orders appealable before entry of a final order in
workers’ compensation cases.
Rule 9.180(b)(2) now limits the place for filing the notice of
appeal to the lower tribunal that entered the order and not any
judge of compensation claims as the former rule provided.
Rule 9.180(f)(6)(E) provides that the lower tribunal shall
provide a copy of the record to all counsel of record and all
unrepresented parties. It is contemplated that the lower tribunal
can accomplish that in whatever manner the lower tribunal deems
most convenient for itself, such as, having copies available that
counsel or the parties may pick up.
2011 Amendments. Subdivision (b)(4) was amended to
provide for the use of form 9.900(c) in appeal of non-final orders.
Subdivisions (f)(6) and (f)(7) were amended to conform to
section 440.29(2), Florida Statutes, providing that the deputy chief
judge, not the lower tribunal, is authorized to designate the manner
in which hearings are recorded and arrange for the preparation of
records on appeal. Moreover, it provides statewide uniformity and
consistency in the preparation of records on appeal by
incorporating electronic and other technological means to promote
efficiency and cost reduction. Currently the electronic version of the
transcript is the Portable Document Format (PDF).
RULE 9.190 cases. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
(a) Applicability. Judicial review of administrative action
will be as in civil cases except as specifically modified by this rule.
(b) Commencement.
(1) An appeal from final agency action as defined in the
Administrative Procedure Act, chapter 120, Florida Statutes,
including immediate final orders entered under section
120.569(2)(n), Florida Statutes, or other administrative action for
which judicial review is provided by general law must be
commenced in accordance with rule 9.110(c).
(2) Review of nonfinal agency action under the
Administrative Procedure Act, including nonfinal action by an
administrative law judge, and agency orders entered under section
120.60(6), Florida Statutes, must be commenced by filing a petition
for review in accordance with rules 9.100(b) and (c).
(3) Review of quasi-judicial decisions of any
administrative body, agency, board, or commission not subject to
the Administrative Procedure Act must be commenced by filing a
petition for certiorari in accordance with rules 9.100(b) and (c),
unless judicial review by appeal is provided by general law.
(c) The Record.
(1) Generally. As further described in this rule, the
record must include only materials furnished to and reviewed by
the lower tribunal in advance of the administrative action to be
reviewed by the court.
(2) Review of Final Action Under the Administrative
Procedure Act.
(A) Proceedings Involving Disputed Issues of
Material Fact. In an appeal from any proceeding under sections
120.569 and 120.57(1), Florida Statutes, the record will consist of
all notices, pleadings, motions, and intermediate rulings; evidence
admitted; those matters officially recognized; proffers of proof and
objections and rulings thereon; proposed findings and exceptions;
any decision, opinion, order, or report by the presiding officer; all
staff memoranda or data submitted to the presiding officer during
the hearing or before its disposition, after notice of submission to all
parties, except communications by advisory staff as permitted
under section 120.66(1), Florida Statutes, if such communications
are public records; all matters placed on the record after an ex
parte communication; and the official transcript.
(B) Proceedings Not Involving Disputed Issues of
Material Fact. In an appeal from any proceeding under sections
120.569 and 120.57(2), Florida Statutes, the record will consist of
the notice and summary of grounds; evidence received; all written
statements submitted; any decisions overruling objections; all
matters placed on the record after an ex parte communication; the
official transcript; and any decision, opinion, order, or report by the
presiding officer.
(C) Declaratory Statements. In an appeal from any
proceeding under section 120.565, Florida Statutes, the record will
consist of the petition seeking a declaratory statement and any
pleadings filed with the agency; all notices relating to the petition
published in the Florida Administrative Register; the declaratory
statement issued by the agency or the agency’s denial of the
petition; and all matters listed in subdivision (c)(2)(A) or (c)(2)(B) of
this rule, whichever is appropriate, if a hearing is held on the
declaratory statement petition.
(D) Summary Hearings. In an appeal from any
proceeding under section 120.574, Florida Statutes, the record will
consist of all notices, pleadings, motions, and intermediate rulings;
evidence received; a statement of matters officially recognized;
proffers of proof and objections and rulings thereon; matters placed
on the record after an ex parte communication; the written decision
of the administrative law judge presiding at the final hearing; and
the official transcript of the final hearing.
(E) Challenges to Rules.
(i) In an appeal from any proceeding
conducted under section 120.56, Florida Statutes, the record will
consist of all notices, pleadings, motions, and intermediate rulings;
evidence admitted; those matters officially recognized; proffers of
proof and objections and rulings thereon; proposed findings and
exceptions; any decision, opinion, order, or report by the presiding
officer; all staff memoranda or data submitted to the presiding
officer during the hearing or before its disposition, after notice of
submission to all parties, except communications by advisory staff
as permitted under section 120.66(1), Florida Statutes, if such
communications are public records; all matters placed on the
record after an ex parte communication; and the official transcript.
(ii) In an appeal from a rule adoption under
sections 120.54 or 120.68(9), Florida Statutes, in which the sole
issue presented by the petition is the constitutionality of a rule and
there are no disputed issues of fact, the record will consist only of
those documents from the rulemaking record compiled by the
agency that materially address the constitutional issue. The
agency’s rulemaking record consists of all notices given for the
proposed rule; any statement of estimated regulatory costs for the
rule; a written summary of hearings on the proposed rule; the
written comments and responses to written comments as required
by sections 120.54 and 120.541, Florida Statutes; all notices and
findings made under section 120.54(4), Florida Statutes; all
materials filed by the agency with the Administrative Procedures
Committee under section 120.54(3), Florida Statutes; all materials
filed with the Department of State under section 120.54(3), Florida
Statutes; and all written inquiries from standing committees of the
legislature concerning the rule.
(F) Immediate Final Orders. In an appeal from an
immediate final order entered under section 120.569(2)(n), Florida
Statutes, the record must be compiled in an appendix pursuant to
rule 9.220 and served with the briefs.
(3) Review of Nonfinal Action Pursuant to the
Administrative Procedure Act. The provisions of rules 9.100 and
9.220 govern the record in proceedings seeking review of nonfinal
administrative action.
(4) Review of Administrative Action Not Subject to the
Administrative Procedure Act. In proceedings seeking review of
administrative action not governed by the Administrative Procedure
Act, the clerk of the lower tribunal is not be required to prepare a
record or record index. The petitioner or the appellant must submit
an appendix in accordance with rule 9.220. Supplemental
appendices may be submitted by any party. Appendices must not
contain any matter not made part of the record in the lower
tribunal.
(5) Videotaped Testimony. In any circumstance in
which hearing testimony is preserved through the use of videotape
rather than through an official transcript, the testimony from the
videotape must be transcribed and the transcript must be made a
part of the record before the record is transmitted to the court.
(6) Modified Record. The contents of the record may be
modified as provided in rule 9.200(a)(3).
(d) Attorneys’ Fees.
(1) Attorneys’ Fees. A motion for attorneys’ fees must
be served under rule 9.400(b).
(2) Disputes As To Amount. If the court decides to
award attorneys’ fees, the court may either remand the matter to
the lower tribunal or to the administrative law judge for
determination of the amount, or refer the matter to a special
magistrate.
(3) Review. Review of orders entered by the lower
tribunal or the administrative law judge will be conducted under
9.400(c). Objections to reports of special magistrates must be filed
with the court within 30 days after the special magistrate’s report is
filed with the court.
(e) Stays Pending Review.
(1) Effect of Initiating Review. The filing of a notice of
administrative appeal or a petition seeking review of administrative
action will not operate as a stay, except that such filing will give rise
to an automatic stay under rule 9.310(b)(2) or chapter 120, Florida
Statutes, or when timely review is sought of an award by an
administrative law judge on a claim for birth-related neurological
injuries.
(2) Application for Stay Under the Administrative
Procedure Act.
(A) A party seeking to stay administrative action
may file a motion either with the lower tribunal or, for good cause
shown, with the court in which the notice or petition has been filed.
The filing of the motion will not operate as a stay. The lower
tribunal or court may grant a stay on appropriate terms. Review of
orders entered by lower tribunals will be by the court on motion.
(B) When an agency has ordered emergency
suspension, restriction, or limitations of a license under section
120.60(6), Florida Statutes, or issued an immediate final order
under section 120.569(2)(n), Florida Statutes, the affected party
may file with the reviewing court a motion for stay on an expedited
basis. The court may issue an order to show cause and, after
considering the agency’s response, if timely filed, grant a stay on
appropriate terms.
(C) When an agency has suspended or revoked a
license other than on an emergency basis, a licensee may file with
the court a motion for stay on an expedited basis. The agency may
file a response within 10 days of the filing of the motion, or within a
shorter time period set by the court. Unless the agency files a timely
response demonstrating that a stay would constitute a probable
danger to the health, safety, or welfare of the state, the court must
grant the motion and issue a stay.
(D) When an order suspending or revoking a
license has been stayed under subdivision (e)(2)(C), an agency may
apply to the court for dissolution or modification of the stay on
grounds that subsequently acquired information demonstrates that
failure to dissolve or modify the stay would constitute a probable
danger to the public health, safety, or welfare of the state.
(3) Application for Stay or Supersedeas of Other
Administrative Action. A party seeking to stay administrative action,
not governed by the Administrative Procedure Act, must file a
motion in the lower tribunal, which has continuing jurisdiction, in
its discretion, to grant, modify, or deny such relief. A stay pending
review may be conditioned on the posting of a good and sufficient
bond, other conditions, or both. Review of orders entered by lower
tribunals will be by the court on motion.
(4) Duration. A stay entered by a lower tribunal or a
court will remain in effect during the pendency of all review
proceedings in Florida courts until a mandate issues, unless
otherwise modified or vacated.
Committee Notes
1996 Amendment. Appeals which fall within the exception
included in subdivision (b)(3) are commenced in accordance with
subdivision (b)(1). Therefore, administrative action by appeal in a
circuit court, if prescribed by general law, is commenced pursuant
to subdivision (b)(1). Unless review of administrative action in
circuit court is prescribed by general law to be by appeal, review in
circuit court is by petition for an extraordinary writ commenced
pursuant to subdivision (b)(3). See Board of County Commissioners
v. Snyder, 627 So. 2d 469 (Fla. 1993); Grace v. Town of Palm Beach,
656 So. 2d 945 (Fla. 4th DCA 1995). Subdivision (b)(3) supersedes
all local government charters, ordinances, rules and regulations
which purport to provide a method of review in conflict herewith.
Subdivision (c) was adopted to identify more clearly what
constitutes the record in appeals from administrative proceedings.
Several sections of the Florida Administrative Procedure Act, as
revised in 1996, specifically state what shall constitute the record in
certain types of proceedings, and this rule incorporates that
statutory language. The rule makes clear that the record shall
include only materials that were furnished to and reviewed by the
lower tribunal in advance of the administrative action to be
reviewed. The intent of this statement is to avoid the inclusion of
extraneous materials in the record that were never reviewed by the
lower tribunal.
Subdivision (c)(2)(A) is based on provisions of section
120.57(1)(f), Florida Statutes. This subdivision of the rule governs
the record from proceedings conducted pursuant to section 120.56
and sections 120.569 and 120.57(1), Florida Statutes. This is
because section 120.56(1)(e), Florida Statutes, states that hearings
under section 120.56, Florida Statutes, shall be conducted in the
same manner as provided by sections 120.569 and 120.57, Florida
Statutes.
Subdivision (c)(2)(B) lists the provisions of section 120.57(2)(b),
Florida Statutes. Subdivision (c)(2)(B)(vii), which refers to “any
decision, opinion, order, or report by the presiding officer,” was
added by the committee to the list of statutory requirements.
Subdivision (c)(2)(C) addresses the record on appeal from
declaratory statement requests pursuant to section 120.565, while
subdivision (c)(2)(D) lists the provisions of section 120.574(2)(d),
Florida Statutes. Subdivision (c)(2)(E) of the rule addresses
proceedings governed by sections 120.54 and 120.68(9), Florida
Statutes. The definition of the rulemaking record tracks language in
section 120.54(8), Florida Statutes.
Subdivision (c)(3) makes clear that rules 9.100 and 9.220
govern the record in proceedings seeking review of non-final
administrative action, while subdivision (c)(4) governs the record in
administrative proceedings not subject to the Administrative
Procedure Act.
Subdivision (c)(5) states that if videotape is used to preserve
hearing testimony, the videotape shall be transcribed before the
record is transmitted to the court.
Subdivision (d) was adopted to conform to the 1996 revisions
to the Administrative Procedure Act. Recoupment of costs is still
governed by rule 9.400.
2000 Amendment. Subdivision (e) was added to address
stays pending judicial review of administrative action. Ordinarily,
application for a stay must first be made to the lower tribunal, but
some agencies have collegial heads who meet only occasionally. If a
party can show good cause for applying initially to the court for a
stay, it may do so. When an appeal has been taken from a license
suspension or revocation under the Administrative Procedure Act,
good cause for not applying first to the lower tribunal is presumed.
Subdivision (e)(2)(B) deals with stays of orders which suspend
licenses on an emergency basis. Before entering an emergency
suspension order, the agency must make a finding that immediate
suspension is necessary to protect the public health, safety, or
welfare. § 120.60(6), Fla. Stat. (1999). In effect, the agency makes a
finding that would be sufficient to defeat issuance of the “stay as a
matter of right” contemplated by section 120.68(3), Florida
Statutes. The agency’s finding is subject to judicial review, however,
on application for a stay under subdivision (e)(2)(B).
Absent an emergency suspension order, the court grants a
stay as of right in Administrative Procedure Act license suspension
and revocation cases unless the licensing agency makes a timely
showing that a stay “would constitute a probable danger to the
health, safety, or welfare of the state.” § 120.68(3), Fla. Stat. (1999).
The court can shorten the 10 day period specified in subdivision
(e)(2)(c). If the court stays a nonemergency suspension or
revocation, the licensing agency can move to modify or dissolve the
stay on the basis of material information that comes to light after
the stay is issued.
Nothing in subdivision (e) precludes licensing agencies from
making suspension or revocation orders effective 30 days after
entry, granting stays pending judicial review, or taking other steps
to implement section 120.68(3), Florida Statutes.
2004 Amendment. Subdivision (e)(2)(C) was amended to
clarify that the ten days (or shorter period set by the court) within
which the agency has to respond runs from the filing of the motion
for stay. See Ludwig v. Dept. of Health, 778 So. 2d 531 (Fla. 1st
DCA 2001).
2011 Amendment. Subdivisions (b)(1) and (b)(2) were
amended to clarify the procedures for seeking judicial review of
immediate final orders and emergency orders suspending,
restricting, or limiting a license. Subdivision (c)(2)(F) was added and
subdivision (c)(2) was amended to clarify the record for purposes of
judicial review of immediate final orders.
RULE 9.200 cases. THE RECORD
(a) Contents.
(1) Except as otherwise designated by the parties, the
record must consist of all documents filed in the lower tribunal, all
exhibits that are not physical evidence, and any transcript(s) of
proceedings filed in the lower tribunal, except summonses,
praecipes, subpoenas, returns, notices of hearing or of taking
deposition, depositions, and other discovery. In criminal cases,
when any exhibit, including physical evidence, is to be included in
the record, the clerk of the lower tribunal must not, unless ordered
by the court, transmit the original and, if capable of reproduction,
must transmit a copy, including but not limited to copies of any
tapes, CDs, DVDs, or similar electronically recorded evidence. The
record must also include a progress docket.
(2) Within 10 days of filing the notice of appeal, an
appellant may direct the clerk of the lower tribunal to include or
exclude other documents or exhibits filed in the lower tribunal. The
directions must be substantially in the form prescribed by rule
9.900(g). If the clerk of the lower tribunal is directed to transmit
less than the entire record or a transcript of trial with less than all
of the testimony, the appellant must serve with such direction a
statement of the judicial acts to be reviewed. Within 20 days of
filing the notice, an appellee may direct the clerk of the lower
tribunal to include additional documents and exhibits.
(3) The parties may prepare a stipulated statement
showing how the issues to be presented arose and were decided in
the lower tribunal, attaching a copy of the order to be reviewed and
as much of the record in the lower tribunal as is necessary to a
determination of the issues to be presented. The parties must
advise the clerk of the lower tribunal of their intention to rely on a
stipulated statement in lieu of the record as early in advance of
filing as possible. The stipulated statement must be filed by the
parties and transmitted to the court by the clerk of the lower
tribunal within the time prescribed for transmittal of the record.
(b) Transcript(s) of Proceedings.
(1) Designation to Court Reporter. Within 10 days of
filing the notice of appeal, the appellant must designate those
portions of the proceedings not on file deemed necessary for
transcription and inclusion in the record and must serve the
designation on the approved court reporter, civil court reporter, or
approved transcriptionist. Within 20 days of filing the notice of
appeal, an appellee may designate additional portions of the
proceedings and must serve the designation on the approved court
reporter, civil court reporter, or approved transcriptionist. Copies of
designations must be served on the approved court reporter, civil
court reporter, or approved transcriptionist. Costs of the
transcript(s) so designated will be borne initially by the designating
party, subject to appropriate taxation of costs as prescribed by rule
9.400. At the time of the designation, unless other satisfactory
arrangements have been made, the designating party must make a
deposit of 1/2 of the estimated transcript costs, and must pay the
full balance of the fee on delivery of the completed transcript(s).
(2) Court Reporter’s Acknowledgment. On service of a
designation, the approved court reporter, civil court reporter, or
approved transcriptionist must acknowledge at the foot of the
designation the fact that it has been received and the date on which
the approved court reporter, civil court reporter, or approved
transcriptionist expects to have the transcript(s) completed and
must serve the so-endorsed designation on the parties and file it
with the clerk of the lower tribunal within 5 days of service. If the
transcript(s) cannot be completed within 30 days of service of the
designation, the approved court reporter, civil court reporter, or
approved transcriptionist must request such additional time as is
reasonably necessary and must state the reasons therefor. If the
approved court reporter, civil court reporter, or approved
transcriptionist requests an extension of time, the court must allow
the parties 5 days in which to object or agree. The court must
approve the request or take other appropriate action and must
notify the reporter and the parties of the due date of the
transcript(s).
(3) Time for Service of Transcript. Within 30 days of
service of a designation, or within the additional time provided for
under subdivision (b)(2) of this rule, the approved court reporter,
civil court reporter, or approved transcriptionist must transcribe
and file with the clerk of the lower tribunal the designated
proceedings and must serve copies as requested in the designation.
If a designating party directs the approved court reporter, civil court
reporter, or approved transcriptionist to furnish the transcript(s) to
fewer than all parties, that designating party must serve a copy of
the designated transcript(s) on the parties within 10 days of receipt
from the approved court reporter, civil court reporter, or approved
transcriptionist.
(4) Organization of Transcript. The transcript of the trial
must be filed with the clerk of the lower tribunal separately from
the transcript(s) of any other designated proceedings. The transcript
of the trial must be followed by a master trial index containing the
names of the witnesses, a list of all exhibits offered and introduced
in evidence, and the pages where each may be found. The pages,
including the index pages, must be consecutively numbered,
beginning with page 1. The pages must not be condensed.
(5) Statement of Evidence or Proceedings. If no report of
the proceedings was made, or if the transcript is unavailable, a
party may prepare a statement of the evidence or proceedings from
the best available means, including the party’s recollection. The
statement must be served on all other parties, who may serve
objections or proposed amendments to it within 15 days of service.
Thereafter, the statement and any objections or proposed
amendments must be filed with the lower tribunal for settlement
and approval. As settled and approved, the statement must be
included by the clerk of the lower tribunal in the record.
(c) Cross-Appeals. Within 20 days of filing the notice of
appeal, a cross-appellant may direct that additional documents,
exhibits, or transcript(s) be included in the record. If less than the
entire record is designated, the cross-appellant must serve, with the
directions, a statement of the judicial acts to be reviewed. The
cross-appellee will have 15 days after such service to direct further
additions. The time for preparation and transmittal of the record
will be extended by 10 days.
(d) Preparation and Transmission of Electronic Record.
(1) The clerk of the lower tribunal must prepare the
record as follows:
(A) The clerk of the lower tribunal must assemble
the record on appeal and prepare a cover page and a complete index
to the record. The cover page must include the name of the lower
tribunal, the style and number of the case, and the caption
RECORD ON APPEAL in 48-point bold font. Consistent with Florida
Rule of General Practice and Judicial Administration 2.420(g)(8),
the index must indicate any confidential information in the record
and if the information was determined to be confidential in an
order, identify such order by date or docket number and record
page number. The clerk of the lower tribunal will not be required to
verify and will not charge for the incorporation of any transcript(s)
into the record. The transcript of the trial must be kept separate
from the remainder of the record on appeal and must not be
renumbered by the clerk of the lower tribunal. The progress docket
must be incorporated into the record immediately after the index.
(B) All pages of the record must be consecutively
numbered. Any transcripts other than the transcript of the trial
must continue the pagination of the record pages. Supplements
permitted after the clerk of the lower tribunal has transmitted the
record to the court must be submitted by the clerk of the lower
tribunal as separate Portable Document Format (“PDF”) files in
which pagination is consecutive from the original record and
continues through each supplement.
(C) The entire record, except for the transcript of
the trial, must be compiled into a single PDF file. The PDF file must
be:
(i) text searchable;
(ii) paginated so that the page numbers
displayed by the PDF reader exactly match the pagination of the
index; and
(iii) bookmarked, consistently with the index,
such that each bookmark states the date, name, and record page of
the filing and the bookmarks are viewable in a separate window.
(2) The transcript of the trial must be converted into a
second PDF file. The PDF file must be:
(A) text searchable; and
(B) paginated to exactly match the pagination of
the master trial index of the transcript of the trial filed under
subdivision (b)(4).
(3) The clerk of the lower tribunal must certify the
record, redact the PDF files of the record and the transcript of the
trial under Florida Rule of General Practice and Judicial
Administration 2.420(d), and transmit the redacted PDF files to the
court by the method described in subdivisions (d)(4) of this rule. By
request or standing agreement with the clerk of the lower tribunal,
counsel of record or a pro se party may obtain the record and the
transcript of the trial that are unredacted to the extent permitted
for access by the requestor. No formal motion will be required. The
clerk of the lower tribunal must certify the less redacted record and
transmit the PDF files to the court by the method described in
subdivision (d)(4) of this rule or file a notice of inability to complete
or transmit the record, specifying the reason.
(4) The clerk of the lower tribunal must transmit the
record and the transcript of the trial to the court by uploading the
PDF files:
(A) via the Florida Courts E-Filing Portal; or
(B) in accordance with the procedure established
by the appellate court’s administrative order governing
transmission of the record.
(5) The court must upload the electronic record to the
electronic filing (e-filing) system docket. Attorneys and those parties
who are registered users of the court’s e-filing system may
download the electronic record in their case(s).
(e) Duties of Appellant or Petitioner. The burden to ensure
that the record is prepared and transmitted in accordance with
these rules will be on the petitioner or the appellant. Any party may
enforce the provisions of this rule by motion.
(f) Correcting and Supplementing Record.
(1) If there is an error or omission in the record, the
parties by stipulation, the lower tribunal before the record is
transmitted, or the court may correct the record.
(2) If the court finds the record is incomplete, it must
direct a party to supply the omitted parts of the record. No
proceeding will be determined, because of an incomplete record,
until an opportunity to supplement the record has been given.
(3) If the court finds that the record is not in
compliance with the requirements of subdivision (d) of this rule, it
may direct the clerk of the lower tribunal to submit a compliant
record, which will replace the previously filed noncompliant record.
Committee Notes
1977 Amendment. This rule replaces former rule 3.6 and
represents a complete revision of the matters pertaining to the
record for an appellate proceeding. References in this rule to
“appellant” and “appellee” should be treated as equivalent to
“petitioner” and “respondent,” respectively. See Commentary, Fla. R.
App. P. 9.020. This rule is based in part on Federal Rule of
Appellate Procedure 10(b).
Subdivision (a)(1) establishes the content of the record unless
an appellant within 10 days of filing the notice directs the clerk to
exclude portions of the record or to include additional portions, or
the appellee within 20 days of the notice being filed directs
inclusion of additional portions. In lieu of a record, the parties may
prepare a stipulated statement, attaching a copy of the order that is
sought to be reviewed and essential portions of the record. If a
stipulated statement is prepared, the parties must advise the clerk
not to prepare the record. The stipulated statement is to be filed
and transmitted within the time prescribed for transmittal of the
record. If less than a full record is to be used, the initiating party
must serve a statement of the judicial acts to be reviewed so that
the opposing party may determine whether additional portions of
the record are required. Such a statement is not intended to be the
equivalent of assignments of error under former rule 3.5. Any
inadequacy in the statement may be cured by motion to supplement
the record under subdivision (f) of this rule.
Subdivision (a) interacts with subdivision (b) so that as soon
as the notice is filed the clerk of the lower tribunal will prepare and
transmit the complete record of the case as described by the rule.
To include in the record any of the items automatically omitted, a
party must designate the items desired. A transcript of the
proceedings in the lower tribunal will not be prepared or
transmitted unless already filed, or the parties designate the
portions of the transcript desired to be transmitted. Subdivision
(b)(2) imposes on the reporter an affirmative duty to prepare the
transcript of the proceedings as soon as designated. It is intended
that to complete the preparation of all official papers to be filed with
the court, the appellant need only file the notice, designate omitted
portions of the record that are desired, and designate the desired
portions of the transcript. It therefore will be unnecessary to file
directions with the clerk of the lower tribunal in most cases.
Subdivision (b)(1) replaces former rule 3.6(d)(2), and
specifically requires service of the designation on the court reporter.
This is intended to avoid delays that sometimes occur when a party
files the designation, but fails to notify the court reporter that a
transcript is needed. The rule also establishes the responsibility of
the designating party to initially bear the cost of the transcript.
Subdivision (b)(2) replaces former rule 3.6(e). This rule
provides for the form of the transcript, and imposes on the reporter
the affirmative duty of delivering copies of the transcript to the
ordering parties on request. Such a request may be included in the
designation. Under subdivision (e), however, the responsibility for
ensuring performance remains with the parties. The requirement
that pages be consecutively numbered is new and is deemed
necessary to assure continuity and ease of reference for the
convenience of the court. This requirement applies even if 2 or more
parties designate portions of the proceedings for transcription. It is
intended that the transcript portions transmitted to the court
constitute a single consecutively numbered document in 1 or more
volumes not exceeding 200 pages each. If there is more than 1 court
reporter, the clerk will renumber the pages of the transcript copies
so that they are sequential. The requirement of a complete index at
the beginning of each volume is new, and is necessary to
standardize the format and to guide those preparing transcripts.
Subdivision (b)(3) provides the procedures to be followed if no
transcript is available.
Subdivision (c) provides the procedures to be followed if there
is a cross-appeal or cross-petition.
Subdivision (d) sets forth the manner in which the clerk of the
lower tribunal is to prepare the record. The original record is to be
transmitted unless the parties stipulate or the lower court orders
the original be retained, except that under rule 9.140(d) (governing
criminal cases), the original is to be retained unless the court
orders otherwise.
Subdivision (e) places the burden of enforcement of this rule
on the appellant or petitioner, but any party may move for an order
requiring adherence to the rule.
Subdivision (f) replaces former rule 3.6(l). The new rule is
intended to ensure that appellate proceedings will be decided on
their merits and that no showing of good cause, negligence, or
accident is required before the lower tribunal or the court orders
the completion of the record. This rule is intended to ensure that
any portion of the record in the lower tribunal that is material to a
decision by the court will be available to the court. It is specifically
intended to avoid those situations that have occurred in the past
when an order has been affirmed because appellate counsel failed
to bring up the portions of the record necessary to determine
whether there was an error. See Pan American Metal Prods. Co. v.
Healy, 138 So. 2d 96 (Fla. 3d DCA 1962). The rule is not intended
to cure inadequacies in the record that result from the failure of a
party to make a proper record during the proceedings in the lower
tribunal. The purpose of the rule is to give the parties an
opportunity to have the appellate proceedings decided on the record
developed in the lower tribunal. This rule does not impose on the
lower tribunal or the court a duty to review on their own the
adequacy of the preparation of the record. A failure to supplement
the record after notice by the court may be held against the party at
fault.
Subdivision (g) requires that the record in civil cases be
returned to the lower tribunal after final disposition by the court
regardless of whether the original record or a copy was used. The
court may retain or return the record in criminal cases according to
its internal administration policies.
1980 Amendment. Subdivisions (b)(1) and (b)(2) were
amended to specify that the party designating portions of the
transcript for inclusion in the record on appeal shall pay for the
cost of transcription and shall pay for and furnish a copy of the
portions designated for all opposing parties. See rule 9.420(b) and
1980 committee note thereto relating to limitations of number of
copies.
1987 Amendment. Subdivision (b)(3) above is patterned after
Federal Rule of Appellate Procedure 11(b).
1992 Amendment. Subdivisions (b)(2), (d)(1)(A), and (d)(1)(B)
were amended to standardize the lower court clerk’s procedure with
respect to the placement and pagination of the transcript in the
record on appeal. This amendment places the duty of paginating the
transcript on the court reporter and requires the clerk to include
the transcript at the end of the record, without repagination.
1996 Amendment. Subdivision (a)(2) was added because
family law cases frequently have continuing activity at the lower
tribunal level during the pendency of appellate proceedings and
that continued activity may be hampered by the absence of orders
being enforced during the pendency of the appeal.
Subdivision (b)(2) was amended to change the wording in the
third sentence from “transcript of proceedings” to “transcript of the
trial” to be consistent with and to clarify the requirement in
subdivision (d)(1)(B) that it is only the transcript of trial that is not
to be renumbered by the clerk. Pursuant to subdivision (d)(1)(B), it
remains the duty of the clerk to consecutively number transcripts
other than the transcript of the trial. Subdivision (b)(2) retains the
requirement that the court reporter is to number each page of the
transcript of the trial consecutively, but it is the committee’s view
that if the consecutive pagination requirement is impracticable or
becomes a hardship for the court reporting entity, relief may be
sought from the court.
2006 Amendment. Subdivision (a)(2) is amended to apply to
juvenile dependency and termination of parental rights cases and
cases involving families and children in need of services. The
justification for retaining the original orders, reports, and
recommendations of magistrate or hearing officers, and judgments
within the file of the lower tribunal in family law cases applies with
equal force in juvenile dependency and termination of parental
rights cases, and cases involving families and children in need of
services.
2014 Amendment. The phrase “all exhibits that are not
physical evidence” in subdivision (a)(1) is intended to encompass all
exhibits that are capable of reproduction, including, but not limited
to, documents, photographs, tapes, CDs, DVDs, and similar
reproducible material. Exhibits that are physical evidence include
items that are not capable of reproduction, such as weapons,
clothes, biological material, or any physical item that cannot be
reproduced as a copy by the clerk’s office.
2015 Amendment. The amendments in In re Amendments to
Rule of Appellate Procedure 9.200, 164 So. 3d 668 (Fla. 2015), do
not modify the clerk’s obligation to transmit a separate copy of the
index to the parties, pursuant to rule 9.110(e).
RULE 9.210 cases. BRIEFS
(a) Generally. Unless otherwise ordered by the court, the
only briefs permitted to be filed by the parties in any 1 proceeding
are the initial brief, the answer brief, and a reply brief. A cross-reply
brief is permitted if a cross-appeal has been filed or if the
respondent identifies issues on cross-review in its brief on
jurisdiction in the supreme court. All briefs required by these rules
must be prepared as follows:
(1) The cover sheet of each brief must state the name of
the court, the style of the cause, including the case number if
assigned, the lower tribunal, the party on whose behalf the brief is
filed, the type of brief, and the name, address, and e-mail address of
the attorney filing the brief.
(2) Computer-generated briefs must not exceed the
word count limits of this subdivision. Handwritten or typewritten
briefs must not exceed the page limits of this subdivision. The word
count or page limits for briefs will be as follows:
(A) Briefs on jurisdiction must not exceed 2,500
words or 10 pages.
(B) Except as provided in subdivisions (a)(2)(C)
and (a)(2)(D) of this rule, the initial and answer briefs must not
exceed 13,000 words or 50 pages and the reply brief must not
exceed 4,000 words or 15 pages. If a cross-appeal is filed or the
respondent identifies issues on cross-review in its brief on
jurisdiction in the supreme court, the appellee or respondent’s
answer/cross-initial brief must not exceed 22,000 words or 85
pages, and the appellant or petitioner’s reply/cross-answer brief
must not exceed 13,000 words or 50 pages. Cross-reply briefs must
not exceed 4,000 words or 15 pages.
(C) In an appeal from a judgment of conviction
imposing a sentence of death or from an order ruling after an
evidentiary hearing on an initial postconviction motion filed under
Florida Rule of Criminal Procedure 3.851, the initial and answer
briefs must not exceed 25,000 words or 100 pages and the reply
brief must not exceed 10,000 words or 35 pages. If a cross-appeal is
filed, the appellee’s answer/cross-initial brief must not exceed
40,000 words or 150 pages and the appellant’s reply/cross-answer
brief must not exceed 25,000 words or 100 pages. Cross-reply briefs
must not exceed 10,000 words or 35 pages.
(D) In an appeal from an order summarily denying
an initial postconviction motion filed under Florida Rule of Criminal
Procedure 3.851, a ruling on a successive postconviction motion
filed under Florida Rule of Criminal Procedure 3.851, a finding that
a defendant is intellectually disabled as a bar to execution under
Florida Rule of Criminal Procedure 3.203, or a ruling on a motion
for postconviction DNA testing filed under Florida Rule of Criminal
Procedure 3.853, the initial and answer briefs must not exceed 75
pages. Reply briefs must not exceed 25 pages.
(E) The cover sheet, the tables of contents and
citations, the certificates of service and compliance, and the
signature block for the brief’s author are excluded from the word
count or page limits in subdivisions (a)(2)(A)–(a)(2)(D). For briefs on
jurisdiction, the statement of the issues also will be excluded from
word count or the page limits in subdivision (a)(2)(A). All pages not
excluded from the computation must be consecutively numbered.
The court may permit longer briefs.
(3) Unless otherwise ordered by the court, an attorney
representing more than 1 party in an appeal may file only 1 initial
or answer brief and 1 reply brief, if authorized, which will include
argument as to all of the parties represented by the attorney in that
appeal. A single party responding to more than 1 brief, or
represented by more than 1 attorney, is similarly bound.
(b) Contents of Initial Brief. The initial brief must contain
the following, in order:
(1) a table of contents listing the sections of the brief,
including headings and subheadings that identify the issues
presented for review, with references to the pages on which each
appears;
(2) a table of citations with cases listed alphabetically,
statutes and other authorities, and the pages of the brief on which
each citation appears;
(3) a statement of the case and of the facts, which must
include the nature of the case, the course of the proceedings, and
the disposition in the lower tribunal, with references to the
appropriate pages of the record or transcript;
(4) a summary of argument, suitably paragraphed,
condensing succinctly, accurately, and clearly the argument
actually made in the body of the brief, which should not be a mere
repetition of the headings under which the argument is arranged;
(5) argument with regard to each issue, with citation to
appropriate authorities, and including the applicable appellate
standard of review;
(6) a short conclusion setting forth the precise relief
sought;
(7) a certificate of service; and
(8) a certificate of compliance for computer-generated
briefs.
(c) Contents of Answer Brief. The answer brief must be
prepared in the same manner as the initial brief, provided that the
statement of the case and of the facts may be omitted, if the
corresponding section of the initial brief is deemed satisfactory. If a
cross-appeal has been filed or the respondent identifies issues on
cross-review in its brief on jurisdiction in the supreme court, the
answer brief must include the issues presented in the cross-appeal
or cross-review, and argument in support of those issues.
(d) Contents of Reply Brief. The reply brief must contain
argument in response and rebuttal to argument presented in the
answer brief. A table of contents, a table of citations, a certificate of
service, and, for computer-generated briefs, a certificate of
compliance must be included in the same manner as in the initial
brief.
(e) Contents of Cross-Reply Brief. The cross-reply brief is
limited to rebuttal of argument of the cross-appellee. A table of
contents, a table of citations, a certificate of service, and, for
computer-generated briefs, a certificate of compliance must be
included in the same manner as in the initial brief.
(f) Contents of Briefs on Jurisdiction. Briefs on
jurisdiction, filed under rule 9.120, must contain a statement of the
issues, a statement of the case and facts, the argument, the
conclusion, a table of contents, a table of citations, a certificate of
service, and, for computer-generated briefs, must also include a
certificate of compliance in the same manner as provided in
subdivisions (a) and (b) of this rule. In the statement of the issues,
petitioner must identify any issues independent of those on which
jurisdiction is invoked that petitioner intends to raise if the court
grants review. Respondent, in its statement of the issues, must
clearly identify any affirmative issues, independent of those on
which jurisdiction is invoked and independent of those raised by
petitioner in its statement of the issues, that respondent intends to
raise on cross-review if the court grants review.
(g) Times for Service of Briefs. The times for serving
jurisdiction and initial briefs are prescribed by rules 9.110, 9.120,
9.130, 9.140, and 9.148. Unless otherwise required, the answer
brief must be served within 30 days after service of the initial brief;
the reply brief, if any, must be served within 30 days after service of
the answer brief; and the cross-reply brief, if any, must be served
within 30 days thereafter. In any appeal or cross-appeal, if more
than 1 initial or answer brief is authorized, the responsive brief
must be served within 30 days after the last initial or answer brief
was served. If the last authorized initial or answer brief is not
served, the responsive brief must be served within 30 days after the
last authorized initial or answer brief could have been timely
served.
(h) Citations. Counsel are requested to use the uniform
citation system prescribed by rule 9.800.
Committee Notes
1977 Amendment. This rule essentially retains the substance
of former rule 3.7. Under subdivision (a) only 4 briefs on the merits
are permitted to be filed in any 1 proceeding: an initial brief by the
appellant or petitioner, an answer brief by the appellee or
respondent, a reply brief by the appellant or petitioner, and a cross-
reply brief by the appellee or respondent (if a cross-appeal or
petition has been filed). A limit of 50 pages has been placed on the
length of the initial and answer briefs, 15 pages for reply and cross-
reply briefs (unless a cross-appeal or petition has been filed), and
20 pages for jurisdictional briefs, exclusive of the table of contents
and citations of authorities. Although the court may by order permit
briefs longer than allowed by this rule, the advisory committee
contemplates that extensions in length will not be readily granted
by the courts under these rules. General experience has been that
even briefs within the limits of the rule are usually excessively long.
Subdivisions (b), (c), (d), and (e) set forth the format for briefs
and retain the substance of former rules 3.7(f), (g), and (h).
Particular note must be taken of the requirement that the
statement of the case and facts include reference to the record. The
abolition of assignments of error requires that counsel be vigilant in
specifying for the court the errors committed; that greater attention
be given the formulation of questions presented; and that counsel
comply with subdivision (b)(5) by setting forth the precise relief
sought. The table of contents will contain the statement of issues
presented. The pages of the brief on which argument on each issue
begins must be given. It is optional to have a second, separate
listing of the issues. Subdivision (c) affirmatively requires that no
statement of the facts of the case be made by an appellee or
respondent unless there is disagreement with the initial brief, and
then only to the extent of disagreement. It is unacceptable in an
answer brief to make a general statement that the facts in the initial
brief are accepted, except as rejected in the argument section of the
answer brief. Parties are encouraged to place every fact utilized in
the argument section of the brief in the statement of facts.
Subdivision (f) sets forth the times for service of briefs after
service of the initial brief. Times for service of the initial brief are
governed by the relevant rule.
Subdivision (g) authorizes the filing of notices of supplemental
authority at any time between the submission of briefs and
rendition of a decision. Argument in such a notice is absolutely
prohibited.
Subdivision (h) states the number of copies of each brief that
must be filed with the clerk of the court involved 1 copy for each
judge or justice in addition to the original for the permanent court
file. This rule is not intended to limit the power of the court to
require additional briefs at any time.
The style and form for the citation of authorities should
conform to the uniform citation system adopted by the Supreme
Court of Florida, which is reproduced in rule 9.800.
The advisory committee urges counsel to minimize references
in their briefs to the parties by such designations as “appellant,”
“appellee,” “petitioner,” and “respondent.” It promotes clarity to use
actual names or descriptive terms such as “the employee,” “the
taxpayer,” “the agency,” etc. See Fed. R. App. P. 28(d).
1980 Amendment. Jurisdictional briefs, now limited to 10
pages by subdivision (a), are to be filed only in the 4 situations
presented in rules 9.030(a)(2)(A)(i), (ii), (iii), and (iv).
A district court decision without opinion is not reviewable on
discretionary conflict jurisdiction. See Jenkins v. State, 385 So. 2d
1356 (Fla. 1980); Dodi Publishing Co. v. Editorial Am., S.A., 385 So.
2d 1369 (Fla. 1980). The discussion of jurisdictional brief
requirements in such cases that is contained in the 1977 revision of
the committee notes to rule 9.120 should be disregarded.
1984 Amendment. Subdivision (b)(4) is new; subdivision
(b)(5) has been renumbered from former (b)(4); subdivision (b)(6) has
been renumbered from former (b)(5). Subdivision (g) has been
amended.
The summary of argument required by (b)(4) is designed to
assist the court in studying briefs and preparing for argument; the
rule is similar to rules of the various United States courts of
appeals.
1992 Amendment. Subdivision (a)(2) was amended to bring
into uniformity the type size and spacing on all briefs filed under
these rules. Practice under the previous rule allowed briefs to be
filed with footnotes and quotations in different, usually smaller,
type sizes and spacing. Use of such smaller type allowed some
overly long briefs to circumvent the reasonable length requirements
established by subdivision (a)(5) of this rule. The small type size and
spacing of briefs allowed under the old rule also resulted in briefs
that were difficult to read. The amended rule requires that all
textual material wherever found in the brief will be printed in the
same size type with the same spacing.
Subdivision (g) was amended to provide that notices of
supplemental authority may call the court’s attention, not only to
decisions, rules, or statutes, but also to other authorities that have
been discovered since the last brief was served. The amendment
further provides that the notice may identify briefly the points on
appeal to which the supplemental authorities are pertinent. This
amendment continues to prohibit argument in such notices, but
should allow the court and opposing counsel to identify more
quickly those issues on appeal to which these notices are relevant.
1996 Amendment. Former subdivision (g) concerning notices
of supplemental authority was transferred to new rule 9.225.
2020 Amendment. Page limits for computer-generated briefs
were converted to word counts. Page limits are retained only for
briefs that are handwritten or typewritten.
Court Commentary
1987. The commission expressed the view that the existing
page limits for briefs, in cases other than those in the Supreme
Court of Florida, are tailored to the “extraordinary” case rather than
the “ordinary” case. In accordance with this view, the commission
proposed that the page limits of briefs in appellate courts other
than the supreme court be reduced. The appellate courts would,
however, be given discretion to expand the reduced page limits in
the “extraordinary” case.
2000. As to computer-generated briefs, strict font
requirements were imposed in subdivision (a)(2) for at least three
reasons:
First and foremost, appellate briefs are public records that the
people have a right to inspect. The clear policy of the Florida
Supreme Court is that advances in technology should benefit the
people whenever possible by lowering financial and physical
barriers to public record inspection. The Court’s eventual goal is to
make all public records widely and readily available, especially via
the Internet. Unlike paper documents, electronic documents on the
Internet will not display properly on all computers if they are set in
fonts that are unusual. In some instances, such electronic
documents may even be unreadable. Thus, the Court adopted the
policy that all computer-generated appellate briefs be filed in one of
two fonts—either Times New Roman 14-point or Courier New 12-
point—that are commonplace on computers with Internet
connections. This step will help ensure that the right to inspect
public records on the Internet will be genuinely available to the
largest number of people.
Second, Florida’s court system as a whole is working toward
the day when electronic filing of all court documents will be an
everyday reality. Though the technology involved in electronic filing
is changing rapidly, it is clear that the Internet is the single most
significant factor influencing the development of this technology.
Electronic filing must be compatible with Internet standards as they
evolve over time. It is imperative for the legal profession to become
accustomed to using electronic document formats that are most
consistent with the Internet.
Third, the proliferation of vast new varieties of fonts in recent
years poses a real threat that page-limitation rules can be
circumvented through computerized typesetting. The only way to
prevent this is to establish an enforceable rule on standards for font
use. The subject font requirements are most consistent with this
purpose and the other two purposes noted above.
Subdivision (a)(2) was also amended to require that
immediately after the certificate of service in computer-generated
briefs, counsel (or the party if unrepresented) shall sign a certificate
of compliance with the font standards set forth in this rule for
computer-generated briefs.
RULE 9.220 cases. APPENDIX
(a) Purpose. The purpose of an appendix is to permit the
parties to prepare and transmit copies of those portions of the
record deemed necessary to an understanding of the issues
presented. It may be served with any petition, brief, motion,
response, or reply but shall be served as otherwise required by
these rules. In any proceeding in which an appendix is required, if
the court finds that the appendix is incomplete, it shall direct a
party to supply the omitted parts of the appendix. No proceeding
shall be determined until an opportunity to supplement the
appendix has been given.
(b) Contents. The appendix shall contain a coversheet, an
index, a certificate of service, and a conformed copy of the opinion
or order to be reviewed and may contain any other portions of the
record and other authorities. Asterisks should be used to indicate
omissions in documents or testimony of witnesses. The cover sheet
shall state the name of the court, the style of the cause, including
the case number if assigned, the party on whose behalf the
appendix is filed, the petition, brief, motion, response, or reply for
which the appendix is served, and the name and address of the
attorney, or pro se party, filing the appendix.
(c) Electronic Format. The appendix shall be prepared and
filed electronically as a separate Portable Document Format (“PDF”)
file. The electronically filed appendix shall be filed as 1 document,
unless size limitations or technical requirements established by the
Florida Supreme Court Standards for Electronic Access to the
Courts require multiple parts. The appendix shall be properly
indexed and consecutively paginated, beginning with the cover
sheet as page 1. The PDF file(s) shall:
(1) be text searchable;
(2) be paginated so that the page numbers displayed by
the PDF reader exactly match the pagination of the index;
(3) be bookmarked, consistently with the index, such
that each bookmark states the date, name of the document which it
references, and directs to the first page of that document. All
bookmarks must be viewable in a separate window; and
(4) not contain condensed transcripts, unless
authorized by the court.
(d) Paper Format. When a paper appendix is authorized, it
shall be separated from the petition, brief, motion, response, or
reply that it accompanies. The appendix shall be consecutively
paginated, beginning with the cover sheet as page 1. In addition,
the following requirements shall apply:
(1) if the appendix includes documents filed before
January 1991 on paper measuring 8 1/2 by 14 inches, the
documents should be reduced in copying to 8 1/2 by 11 inches, if
practicable; and
(2) if reduction is impracticable, the appendix may
measure 8 1/2 by 14 inches, but must be separated from the 8 1/2
by 11-inch document(s) that it accompanies.
Committee Notes
1977 Adoption. This rule is new and has been adopted to
encourage the use of an appendix either as a separate document or
as a part of another matter. An appendix is optional, except under
rules 9.100, 9.110(i), 9.120, and 9.130. If a legal size (8 1/2 by 14
inches) appendix is used, counsel should make it a separate
document. The term “conformed copy” is used throughout these
rules to mean a true and accurate copy. In an appendix the formal
parts of a document may be omitted if not relevant.
1980 Amendment. The rule has been amended to reflect the
requirement that an appendix accompany a suggestion filed under
rule 9.125.
1992 Amendment. This amendment addresses the
transitional problem that arises if legal documents filed before
January 1991 must be included in an appendix filed after that date.
It encourages the reduction of 8 ½ by 14 inch papers to 8 ½ by 11
inches if practicable, and requires such documents to be bound
separately if reduction is impracticable.
RULE 9.225 cases. NOTICE OF SUPPLEMENTAL AUTHORITY
A party may file notices of supplemental authority with the
court before a decision has been rendered to call attention to
decisions, rules, statutes, or other authorities that are significant to
the issues raised and that have been discovered after service of the
party’s last brief in the cause. The notice shall not contain
argument, but may identify briefly the issues argued on appeal to
which the supplemental authorities are pertinent if the notice is
substantially in the form prescribed by rule 9.900(j). Copies of the
supplemental authorities shall be attached to the notice.
Committee Notes
1996 Adoption. Formerly rule 9.210(g) with the addition of
language that requires that supplemental authorities be significant
to the issues raised.
2011 Amendment. When filing a notice of supplemental
authority, attorneys and parties are encouraged to use pinpoint
citations to direct the court to specific pages or sections of any cited
supplemental authority.
RULE 9.300 cases. MOTIONS
(a) Contents of Motion; Response. Unless otherwise
prescribed by these rules, an application for an order or other relief
available under these rules shall be made by filing a motion
therefor. The motion shall state the grounds on which it is based,
the relief sought, argument in support thereof, and appropriate
citations of authority. A motion for an extension of time shall, and
other motions if appropriate may, contain a certificate that the
movant’s counsel has consulted opposing counsel and that the
movant’s counsel is authorized to represent that opposing counsel
either has no objection or will promptly file an objection. A motion
may be accompanied by an appendix, which may include affidavits
and other appropriate supporting documents not contained in the
record. With the exception of motions filed pursuant to rule
9.410(b), a party may serve 1 response to a motion within 15 days
of service of the motion. The court may shorten or extend the time
for response to a motion.
(b) Effect on Proceedings. Except as prescribed by
subdivision (d) of this rule, service of a motion shall toll the time
schedule of any proceeding in the court until disposition of the
motion. An order granting an extension of time for any act shall
automatically extend the time for all other acts that bear a time
relation to it. An order granting an extension of time for preparation
of the record, or the index to the record, or for filing of the
transcript of proceedings, shall extend automatically, for a like
period, the time for service of the next brief due in the proceedings.
A conformed copy of an order extending time shall be transmitted
forthwith to the clerk of the lower tribunal until the record has been
transmitted to the court.
(c) Emergency Relief; Notice. A party seeking emergency
relief shall, if practicable, give reasonable notice to all parties.
(d) Motions Not Tolling Time.
(1) Motions for post-trial release, rule 9.140(g).
(2) Motions for stay pending appeal, rule 9.310.
(3) Motions relating to oral argument, rule 9.320.
(4) Motions relating to joinder and substitution of
parties, rule 9.360.
(5) Motions relating to amicus curiae, rule 9.370.
(6) Motions relating to attorneys’ fees on appeal, rule
9.400.
(7) Motions relating to service, rule 9.420.
(8) Motions relating to admission or withdrawal of
attorneys, rule 9.440.
(9) Motions relating to sanctions, rule 9.410.
(10) Motions relating to expediting the appeal.
(11) Motions relating to appeal proceedings to review a
final order dismissing a petition for judicial waiver of parental notice
and consent or consent only to termination of pregnancy, rule
9.147.
(12) Motions for mediation filed more than 30 days after
the notice of appeal, rule 9.700(d).
Committee Notes
1977 Amendment. This rule replaces former rule 3.9.
Subdivision (a) is new, except to the extent it replaces former
rule 3.9(g), and is intended to outline matters required to be
included in motions. These provisions are necessary because it is
anticipated that oral argument will only rarely be permitted. Any
matters that formerly would have been included in a brief on a
motion should be included in the motion. Although affidavits and
other documents not appearing in the record may be included in
the appendix, it is to be emphasized that such materials are limited
to matter germane to the motion, and are not to include matters
related to the merits of the case. The advisory committee was of the
view that briefs on motions are cumbersome and unnecessary. The
advisory committee anticipates that the motion document will
become simple and unified, with unnecessary technical language
eliminated. Routine motions usually require only limited argument.
Provision is made for a response by the opposing party. No further
responses by either party are permitted, however, without an order
of the court entered on the court’s own motion or the motion of a
party. To ensure cooperation and communication between opposing
counsel, and conservation of judicial resources, a party moving for
an extension of time is required to certify that opposing counsel has
been consulted, and either has no objection or intends to serve an
objection promptly. The certificate may also be used for other
motions if appropriate. Only the motions listed in subdivision (d) do
not toll the time for performance of the next act. Subdivision (d)(9)
codifies current practice in the supreme court, where motions do
not toll time unless the court approves a specific request, for good
cause shown, to toll time for the performance of the next act. Very
few motions filed in that court warrant a delay in further procedural
steps to be taken in a case.
The advisory committee considered and rejected as unwise a
proposal to allow at least 15 days to perform the next act after a
motion tolling time was disposed.
Subdivision (b) replaces former rule 3.9(f).
Subdivision (c) is new and has been included at the request of
members of the judiciary. It is intended to require that counsel
make a reasonable effort to give actual notice to opposing counsel
when emergency relief is sought from a court.
Specific reference to motions to quash or dismiss appeals
contained in former rules 3.9(b) and (c) has been eliminated as
unnecessary. It is not intended that such motions be abolished.
Courts have the inherent power to quash frivolous appeals, and
subdivision (a) guarantees to any party the right to file a motion.
Although no special time limitations are placed on such motions,
delay in presenting any motion may influence the relief granted or
sanctions imposed under rule 9.410.
As was the case under former rule 3.8, a motion may be filed
in either the lower tribunal or the court, in accordance with rule
9.600.
1980 Amendment. Subdivision (b) was amended to require
the clerk of either court to notify the other clerk when an extension
of time has been granted, up to the time that the record on appeal
has been transmitted to the court, so that the clerk of the lower
tribunal will be able to properly compute the time for transmitting
the record on appeal, and that both courts may properly compute
the time for performing subsequent acts.
1992 Amendment. Subdivision (b) was amended to clarify an
uncertainty over time deadlines. The existing rule provided that an
extension of time for performing an act automatically extended for a
comparable period any other act that had a time relation thereto.
The briefing schedule, however, is related by time only to the filing
of the notice of appeal. Accordingly, this amendment provides that
orders extending the time for preparation of the record, the index to
the record, or a transcript, automatically extends for the same
period the time for service of the initial brief. Subdivision (b) also
was amended to correlate with rule 9.600(a), which provides that
only an appellate court may grant an extension of time.
RULE 9.310 cases. STAY PENDING REVIEW
(a) Application in Lower Tribunal. Except as provided by
general law and in subdivision (b) of this rule, a party seeking to
stay a final or nonfinal order pending review first must file a motion
in the lower tribunal, which has continuing jurisdiction, in its
discretion, to grant, modify, or deny such relief. A stay pending
review may be conditioned on the posting of a good and sufficient
bond, other conditions, or both.
(b) Exceptions.
(1) Money Judgments. If the order is a judgment solely
for the payment of money, a party may obtain an automatic stay of
execution pending review, without the necessity of a motion or
order, by posting a good and sufficient bond equal to the principal
amount of the judgment plus twice the statutory rate of interest on
judgments on the total amount on which the party has an
obligation to pay interest. Multiple parties having common liability
may file a single bond satisfying the above criteria.
(2) Public Bodies; Public Officers. The timely filing of a
notice will automatically operate as a stay pending review, except in
criminal cases, in administrative actions under the Administrative
Procedure Act, or as otherwise provided by chapter 120, Florida
Statutes, when the state, any public officer in an official capacity,
board, commission, or other public body seeks review; provided that
an automatic stay will exist for 48 hours after the filing of the notice
of appeal for public records and public meeting cases. On motion,
the lower tribunal or the court may extend a stay, impose any
lawful conditions, or vacate the stay.
(c) Bond.
(1) Defined. A good and sufficient bond is a bond with a
principal and a surety company authorized to do business in the
State of Florida, or cash deposited in the clerk of the lower
tribunal’s office. The lower tribunal will have continuing jurisdiction
to determine the actual sufficiency of any such bond.
(2) Conditions. The conditions of a bond must include a
condition to pay or comply with the order in full, including costs;
interest; fees; and damages for delay, use, detention, and
depreciation of property, if the review is dismissed or order affirmed;
and may include such other conditions as may be required by the
lower tribunal.
(d) Judgment Against a Surety. A surety on a bond
conditioning a stay submits to the jurisdiction of the lower tribunal
and the court. The liability of the surety on such bond may be
enforced by the lower tribunal or the court, after motion and notice,
without the necessity of an independent action.
(e) Duration. A stay entered by a lower tribunal will remain
in effect during the pendency of all review proceedings in Florida
courts until a mandate issues, or unless otherwise modified or
vacated.
(f) Review. A party may seek review of a lower tribunal’s
order entered under this rule by filing a motion in the court. The
motion must be filed as a separate document.
Committee Notes
1977 Amendment. This rule replaces former rules 5.1
through 5.12. It implements the Administrative Procedure Act,
section 120.68(3), Florida Statutes (Supp. 1976).
Subdivision (a) provides for obtaining a stay pending review by
filing a motion in the lower tribunal, and clarifies the authority of
the lower tribunal to increase or decrease the bond or deal with
other conditions of the stay, even though the case is pending before
the court. Exceptions are provided in subdivision (b). The rule
preserves any statutory right to a stay. The court has plenary power
to alter any requirements imposed by the lower tribunal. A party
desiring exercise of the court’s power may seek review by motion
under subdivision (f) of this rule.
Subdivision (b)(1) replaces former rule 5.7. It establishes a
fixed formula for determining the amount of the bond if there is a
judgment solely for money. This formula shall be automatically
accepted by the clerk. If an insurance company is a party to an
action with its insured, and the judgment exceeds the insurance
company’s limits of liability, the rule permits the insurance
company to supersede by posting a bond in the amount of its limits
of liability, plus 15 percent. For the insured co-defendant to obtain
a stay, bond must be posted for the portion of the judgment entered
against the insured co-defendant plus 15 percent. The 15 percent
figure was chosen as a reasonable estimate of 2 years’ interest and
costs, it being very likely that the stay would remain in effect for
over 1 year.
Subdivision (b)(2) replaces former rule 5.12. It provides for an
automatic stay without bond as soon as a notice invoking
jurisdiction is filed by the state or any other public body, other than
in criminal cases, which are covered by rule 9.140(c)(3), but the
lower tribunal may vacate the stay or require a bond. This rule
supersedes Lewis v. Career Service Commission, 332 So. 2d 371
(Fla. 1st DCA 1976).
Subdivision (c) retains the substance of former rule 5.6, and
states the mandatory conditions of the bond.
Subdivision (d) retains the substance of former rule 5.11, with
an additional provision for entry of judgment by the court so that if
the lower tribunal is an agency, resort to an independent action is
unnecessary.
Subdivision (e) is new and is intended to permit a stay for
which a single bond premium has been paid to remain effective
during all review proceedings. The stay is vacated by issuance of
mandate or an order vacating it. There are no automatic stays of
mandate under these rules, except for the state or a public body
under subdivision (b)(2) of this rule, or if a stay as of right is
guaranteed by statute. See, e.g., § 120.68(3), Fla. Stat. (Supp.
1976). This rule interacts with rule 9.340, however, so that a party
has 15 days between rendition of the court’s decision and issuance
of mandate (unless issuance of mandate is expedited) to move for a
stay of mandate pending review. If such motion is granted, any stay
and bond previously in effect continues, except to the extent of any
modifications, by operation of this rule. If circumstances arise
requiring alteration of the terms of the stay, the party asserting the
need for such change should apply by motion for the appropriate
order.
Subdivision (f) provides for review of orders regarding stays
pending appeal by motion in the court.
Although the normal and preferred procedure is for the parties
to seek the stay in the lower court, this rule is not intended to limit
the constitutional power of the court to issue stay orders after its
jurisdiction has been invoked. It is intended that if review of the
decision of a Florida court is sought in the United States Supreme
Court, a party may move for a stay of mandate, but subdivision (e)
does not apply in such cases.
1984 Amendment. Because of recent increases in the
statutory rate of interest on judgments, subdivision (b)(1) was
amended to provide that 2 years’ interest on the judgment, rather
than 15 percent of the judgment, be posted in addition to the
principal amount of the judgment. In addition, the subdivision was
amended to cure a deficiency in the prior rule revealed by
Proprietors Insurance Co. v. Valsecchi, 385 So. 2d 749 (Fla. 3d DCA
1980). As under the former rule, if a party has an obligation to pay
interest only on the judgment, the bond required for that party shall
be equal to the principal amount of the judgment plus 2 years’
interest on it. In some cases, however, an insurer may be liable
under its policy to pay interest on the entire amount of the
judgment against its insured, notwithstanding that the judgment
against it may be limited to a lesser amount by its policy limits. See
Highway Casualty Co. v. Johnston, 104 So. 2d 734 (Fla. 1958). In
that situation, the amended rule requires the insurance company to
supersede the limited judgment against it by posting a bond in the
amount of the judgment plus 2 years’ interest on the judgment
against its insured, so that the bond will more closely approximate
the insurer’s actual liability to the plaintiff at the end of the
duration of the stay. If such a bond is posted by an insurer, the
insured may obtain a stay by posting a bond in the amount of the
judgment against it in excess of that superseded by the insurer. The
extent of coverage and obligation to pay interest may, in certain
cases, require an evidentiary determination by the court.
1992 Amendment. Subdivision (c)(1) was amended to
eliminate the ability of a party posting a bond to do so through the
use of 2 personal sureties. The committee was of the opinion that a
meaningful supersedeas could be obtained only through the use of
either a surety company or the posting of cash. The committee also
felt, however, that it was appropriate to note that the lower tribunal
retained continuing jurisdiction over the actual sufficiency of any
such bond.
RULE 9.315 cases. SUMMARY DISPOSITION
(a) Summary Affirmance. After service of the initial brief in
appeals under rule 9.110, 9.130, or 9.140, or after service of the
answer brief if a cross-appeal has been filed, the court may
summarily affirm the order to be reviewed if the court finds that no
preliminary basis for reversal has been demonstrated.
(b) Summary Reversal. After service of the answer brief in
appeals under rule 9.110, 9.130, or 9.140, or after service of the
reply brief if a cross-appeal has been filed, the court may summarily
reverse the order to be reviewed if the court finds that no
meritorious basis exists for affirmance and the order otherwise is
subject to reversal.
(c) Motions Not Permitted. This rule may be invoked only
on the court’s own motion. A party may not request summary
disposition.
Court Commentary
1987. This rule contemplates a screening process by the
appellate courts. More time will be spent early in the case to save
more time later. The rule is fair in that appellant has an
opportunity to file a full brief. The thought behind this proposal is
to allow expeditious disposition of nonmeritorious appeals or
obviously meritorious appeals.
RULE 9.320 cases. ORAL ARGUMENT
(a) Requests. Oral argument may be permitted in any
proceeding. A request for oral argument must be in a separate
document served by a party:
(1) in appeals, not later than 15 days after the last brief
is due to be served;
(2) in proceedings commenced by the filing of a
petition, not later than 15 days after the reply is due to be served;
(3) in proceedings governed by rule 9.146, in
accordance with rule 9.146(g)(5); and
(4) in proceedings governed by rule 9.120, not later
than the date the party’s brief on jurisdiction is due to be served.
(b) Duration. Unless otherwise ordered by the court, each
side will be allowed 20 minutes for oral argument.
(c) Motion. On its own motion or that of a party, the court
may require, limit, expand, or dispense with oral argument.
(d) Requests to the Supreme Court of Florida. A request
for oral argument to the supreme court must include a brief
statement regarding why oral argument would enhance the
supreme court’s consideration of the issues to be raised. A party
may file a response to the request within 5 days of the filing of the
request. No reply will be permitted.
(e) Use of Communication Technology.
(1) Definition. As used in this subdivision, the term
“communication technology” has the same meaning provided in
Florida Rule of General Practice and Judicial Administration
2.530(a).
(2) Request to Participate by Communication Technology.
A request may be made by a party for 1 or more of the parties to
participate in oral argument through the use of communication
technology. Such request must be included in the request for oral
argument under subdivision (a). The request must state the reason
for requesting participation by communication technology.
(3) Court Order. The court, in the exercise of its
discretion, may grant or deny the request of a party under
subdivision (e)(2) or may, on its own motion, order participation in
oral argument through the use of communication technology.
(4) Public Availability. If communication technology is
used for participation in an oral argument, the proceeding must be
recorded and made publicly available through a live broadcast and
by posting the recording to the court’s website as soon as
practicable after the proceeding.
(5) Technological Malfunction. If a technological
malfunction occurs during an oral argument for which
communication technology is used, the court may recess the
proceeding to address the malfunction, expand the time for oral
argument, reschedule oral argument, or dispense with oral
argument.
Committee Notes
1977 Amendment. This rule replaces former rule 3.10. As
under the former rules, there is no right to oral argument. It is
contemplated that oral argument will be granted only if the court
believes its consideration of the issues raised will be enhanced. The
time ordinarily allowable to each party has been reduced from 30
minutes to 20 minutes to conform with the prevailing practice in
the courts. If oral argument is permitted, the order of the court will
state the time and place.
RULE 9.330 cases. REHEARING; CLARIFICATION; CERTIFICATION;
WRITTEN OPINION
(a) Time for Filing; Contents; Response.
(1) Time for Filing. A motion for rehearing, clarification,
certification, or issuance of a written opinion may be filed within 15
days of an order or decision of the court or within such other time
set by the court.
(2) Contents.
(A) Motion for Rehearing. A motion for rehearing
shall state with particularity the points of law or fact that, in the
opinion of the movant, the court has overlooked or misapprehended
in its order or decision. The motion shall not present issues not
previously raised in the proceeding.
(B) Motion for Clarification. A motion for
clarification shall state with particularity the points of law or fact in
the court’s order or decision that, in the opinion of the movant, are
in need of clarification.
(C) Motion for Certification. A motion for
certification shall set forth the case(s) that expressly and directly
conflicts with the order or decision or set forth the issue or question
to be certified as one of great public importance.
(D) Motion for Written Opinion. A motion for
written opinion shall set forth the reasons that the party believes
that a written opinion would provide:
(i) a legitimate basis for supreme court
review;
(ii) an explanation for an apparent deviation
from prior precedent; or
(iii) guidance to the parties or lower tribunal
when:
a. the issue decided is also present in
other cases pending before the court or another district court of
appeal;
b. the issue decided is expected to
recur in future cases;
c. there are conflicting decisions on
the issue from lower tribunals;
d. the issue decided is one of first
impression; or
e. the issue arises in a case in which
the court has exclusive subject matter jurisdiction.
(3) Response. A response may be served within 15 days
of service of the motion.
(b) Limitation. A party shall not file more than 1 motion for
rehearing, clarification, certification, or written opinion with respect
to a particular order or decision of the court. All motions filed under
this rule with respect to a particular order or decision must be
combined in a single document.
(c) Exception; Bond Validation Proceedings. A motion for
rehearing or for clarification of an order or decision in proceedings
for the validation of bonds or certificates of indebtedness as
provided by rule 9.030(a)(1)(B)(ii) may be filed within 10 days of an
order or decision or within such other time set by the court. A
response may be served within 10 days of service of the motion. The
mandate shall issue forthwith if a timely motion has not been filed.
A timely motion shall receive immediate consideration by the court
and, if denied, the mandate shall issue forthwith.
(d) Exception; Review of District Court of Appeal
Decisions. No motion for rehearing or clarification may be filed in
the supreme court addressing:
(1) the dismissal of an appeal that attempts to invoke
the court’s mandatory jurisdiction under rule 9.030(a)(1)(A)(ii) when
the appeal seeks to review a decision of a district court of appeal
without opinion;
(2) the grant or denial of a request for the court to
exercise its discretion to review a decision described in rule
9.030(a)(2)(A); or
(3) the dismissal of a petition for an extraordinary writ
described in rule 9.030(a)(3) when such writ is used to seek review
of a district court of appeal decision without opinion.
(e) Application. This rule applies only to appellate orders or
decisions that adjudicate, resolve, or otherwise dispose of an
appeal, original proceeding, or motion for appellate attorneys’ fees.
The rule is not meant to limit the court’s inherent authority to
reconsider nonfinal appellate orders and decisions.
Committee Notes
1977 Amendment. This rule replaces former rule 3.14.
Rehearing now must be sought by motion, not by petition. The
motion must be filed within 15 days of rendition and a response
may be served within 10 days of service of the motion. Only 1
motion will be accepted by the clerk. Re-argument of the issues
involved in the case is prohibited.
Subdivision (c) provides expedited procedures for issuing a
mandate in bond validation cases, in lieu of those prescribed by
rule 9.340.
Subdivision (d) makes clear that motions for rehearing or for
clarification are not permitted as to any decision of the supreme
court granting or denying discretionary review under rule 9.120.
2000 Amendment. The amendment has a dual purpose. By
omitting the sentence “The motion shall not re-argue the merits of
the court’s order,” the amendment is intended to clarify the
permissible scope of motions for rehearing and clarification.
Nevertheless, the essential purpose of a motion for rehearing
remains the same. It should be utilized to bring to the attention of
the court points of law or fact that it has overlooked or
misapprehended in its decision, not to express mere disagreement
with its resolution of the issues on appeal. The amendment also
codifies the decisional law’s prohibition against issues in post-
decision motions that have not previously been raised in the
proceeding.
2002 Amendment. The addition of the language at the end of
subdivision (a) allows a party to request the court to issue a written
opinion that would allow review to the supreme court, if the initial
decision is issued without opinion. This language is not intended to
restrict the ability of parties to seek rehearing or clarification of
such decisions on other grounds.
2008 Amendment. Subdivision (d) has been amended to
reflect the holding in Jackson v. State, 926 So. 2d 1262 (Fla. 2006).
2018 Amendment. This rule has been amended to broaden
the grounds upon which a party may permissibly seek a written
opinion following the issuance of a per curiam affirmance.
Subdivision (a)(2)(D)(iii)e. is intended to address situations in which
a specific district court of appeal has exclusive subject matter
jurisdiction over a type of case by operation of law, such as the First
District Court of Appeal regarding workers’ compensation matters.
RULE 9.331 cases. DETERMINATION OF CAUSES IN A DISTRICT
COURT OF APPEAL EN BANC
(a) En Banc Proceedings; Generally. A majority of the
participating judges of a district court of appeal may order that a
proceeding pending before the court be determined en banc. If a
majority of the participating judges order that a proceeding will be
determined en banc, the district court of appeal shall promptly
notify the parties that the proceeding will be determined en banc. A
district court of appeal en banc shall consist of the judges in
regular active service on the court. En banc hearings and
rehearings shall not be ordered unless the case or issue is of
exceptional importance or unless necessary to maintain uniformity
in the court’s decisions. The en banc decision shall be by a majority
of the active judges actually participating and voting on the case. In
the event of a tie vote, the panel decision of the district court of
appeal shall stand as the decision of the court. If there is no panel
decision, a tie vote will affirm the trial court decision.
(b) En Banc Proceedings by Divisions. If a district court of
appeal chooses to sit in subject-matter divisions as approved by the
supreme court, en banc determinations shall be limited to those
regular active judges within the division to which the case is
assigned, unless the chief judge determines that the case involves
matters of general application and that en banc determination
should be made by all regular active judges. However, in the
absence of such determination by the chief judge, the full court may
determine by an affirmative vote of three-fifths of the active judges
that the case involves matters that should be heard and decided by
the full court, in which event en banc determination on the merits
of the case shall be made by an affirmative vote of a majority of the
regular active judges participating.
(c) Hearings En Banc. A hearing en banc may be ordered
only by a district court of appeal on its own motion. A party may
not request an en banc hearing. A motion seeking the hearing shall
be stricken.
(d) Rehearings En Banc.
(1) Generally. A rehearing en banc may be ordered by a
district court of appeal on its own motion or on motion of a party.
Within the time prescribed by rule 9.330, a party may move for an
en banc rehearing solely on the grounds that the case or issue is of
exceptional importance or that such consideration is necessary to
maintain uniformity in the court’s decisions. A motion based on any
other ground shall be stricken. A response may be served within 15
days of service of the motion. A vote will not be taken on the motion
unless requested by a judge on the panel that heard the proceeding,
or by any judge in regular active service on the court. Judges who
did not sit on the panel are under no obligation to consider the
motion unless a vote is requested.
(2) Required Statement for Rehearing En Banc. A
rehearing en banc is an extraordinary proceeding. In every case the
duty of counsel is discharged without filing a motion for rehearing
en banc unless 1 of the grounds set forth in (d)(1) is clearly met. If
filed by an attorney, the motion shall contain either or both of the
following statements:
I express a belief, based on a reasoned and studied
professional judgment, that the case or issue is of exceptional
importance.
Or
I express a belief, based on a reasoned and studied
professional judgment, that the panel decision is contrary to
the following decision(s) of this court and that a consideration
by the full court is necessary to maintain uniformity of
decisions in this court (citing specifically the case or cases).
(3) Disposition of Motion for Rehearing En Banc. A
motion for rehearing en banc shall be disposed of by order. If
rehearing en banc is granted, the court may limit the issues to be
reheard, require the filing of additional briefs, require additional
argument, or any combination of those options.
Committee Notes
1982 Amendment. This rule is patterned in part after the en
banc rule of the United States Court of Appeals for the Fifth and
Eleventh Circuits. The rule is an essential part of the philosophy of
our present appellate structure because the supreme court no
longer has jurisdiction to review intra-district conflict. The new
appellate structural scheme requires the district courts of appeal to
resolve conflict within their respective districts through the en banc
process. By so doing, this should result in a clear statement of the
law applicable to that particular district.
Subdivision (a) provides that a majority vote of the active and
participating members of the district court is necessary to set a
case for hearing en banc or rehearing en banc. The issues on the
merits will be decided by a simple majority of the judges actually
participating in the en banc process, without regard to recusals or a
judge’s absence for illness. All judges in regular active service, not
excluded for cause, will constitute the en banc panel. Counsel are
reminded that en banc proceedings are extraordinary and will be
ordered only in the enumerated circumstances. The ground,
maintenance of uniformity in the court’s decisions, is the equivalent
of decisional conflict as developed by supreme court precedent in
the exercise of its conflict jurisdiction. The district courts are free,
however, to develop their own concept of decisional uniformity. The
effect of an en banc tie vote is self-explanatory, but such a vote does
suggest that the matter is one that should be certified to the
supreme court for resolution.
Subdivision (b) provides that hearings en banc may not be
sought by the litigants; such hearings may be ordered only by the
district court sua sponte.
Subdivision (c)(1) governs rehearings en banc. A litigant may
apply for an en banc rehearing only on the ground that intra-
district conflict of decisions exists, and then only in conjunction
with a timely filed motion for rehearing under rule 9.330. The en
banc rule does not allow for a separate motion for an en banc
rehearing nor does it require the district court to enter a separate
order on such request. Once a timely motion for rehearing en banc
is filed in conjunction with a traditional petition for rehearing, the 3
judges on the initial panel must consider the motion. A vote of the
entire court may be initiated by any single judge on the panel. Any
other judge on the court may also trigger a vote by the entire court.
Nonpanel judges are not required to review petitions for rehearing
en banc until a vote is requested by another judge, although all
petitions for rehearing en banc should be circulated to nonpanel
judges. The court may on its own motion order a rehearing en banc.
Subdivision (c)(2) requires a signed statement of counsel
certifying a bona fide belief that an en banc hearing is necessary to
ensure decisional harmony within the district.
Subdivision (c)(3) is intended to prevent baseless motions for
en banc rehearings from absorbing excessive judicial time and
labor. The district courts will not enter orders denying motions for
en banc rehearings. If a rehearing en banc is granted, the court
may order briefs from the parties and set the case for oral
argument.
1992 Amendment. Subdivision (c)(3) was amended to correct
a linguistic error found in the original subdivision.
Court Commentary
1994 Amendment. The intent of this amendment is to
authorize courts sitting in subject-matter divisions to have cases
that are assigned to a division decided en banc by that division
without participation by the regular active judges assigned to
another division. The presumption is that en banc consideration
will usually be limited to the division in which the case is pending.
However, recognizing that in exceptional instances it may be
preferable for the matter under review to be considered by the whole
court, the case can be brought before all regular active judges by
the chief judge or by an affirmative vote of three-fifths of the regular
active judges on the whole court. Once the matter is before the
whole court en banc, a vote on the merits will be by a majority of
the regular active judges as now provided in rule 9.331.
RULE 9.340 cases. MANDATE
(a) Issuance and Recall of Mandate. Unless otherwise
ordered by the court or provided by these rules, the clerk of the
court must issue such mandate or process as may be directed by
the court after expiration of 15 days from the date of an order or
decision. A copy thereof, or notice of its issuance, must be served
on all parties. The court may direct the clerk of the court to recall
the mandate, but not more than 120 days after its issuance.
(b) Extension of Time for Issuance of Mandate. Unless
otherwise provided by these rules, if a timely motion for rehearing,
clarification, certification, or issuance of a written opinion has been
filed, the time for issuance of the mandate or other process will be
extended until 15 days after rendition of the order denying the
motion, or, if granted, until 15 days after the cause has been fully
determined.
(c) Entry of Money Judgment. If a judgment of reversal is
entered that requires the entry of a money judgment on a verdict,
the mandate will be deemed to require such money judgment to be
entered as of the date of the verdict.
Committee Notes
1977 Amendment. This rule replaces former rule 3.15. The
power of the court to expedite as well as delay issuance of the
mandate, with or without motion, has been made express. That part
of former rule 3.15(a) regarding money judgments has been
eliminated as unnecessary. It is not intended to change the
substantive law there stated. The 15-day delay in issuance of
mandate is necessary to allow a stay to remain in effect for
purposes of rule 9.310(e). This automatic delay is inapplicable to
bond validation proceedings, which are governed by rule 9.330(c).
1984 Amendment. Subdivision (c) was added. It is a
repromulgation of former rule 3.15(a), which was deleted in 1977 as
being unnecessary. Experience proved it to be necessary.
RULE 9.350 cases. DISMISSAL OF CAUSES
(a) Dismissal of Causes When Settled. When any cause
pending in the court is settled before a decision on the merits, the
parties shall immediately notify the court by filing a signed
stipulation for dismissal.
(b) Voluntary Dismissal. A proceeding of an appellant or a
petitioner may be dismissed before a decision on the merits by filing
a notice of dismissal with the clerk of the court without affecting the
proceedings filed by joinder or cross-appeal.
(c) Order of Dismissal. When a party files a stipulation for
dismissal or notice of dismissal under subdivision (a) or (b) of this
rule, the cause may be dismissed only by court order. The court
shall not enter an order of dismissal of an appeal until 15 days after
service of the notice of appeal or until 15 days after the time
prescribed by rule 9.110(b), whichever is later. In a proceeding
commenced under rule 9.120, the court shall not enter an order of
dismissal until 15 days after the serving of the notice to invoke
discretionary jurisdiction or until 15 days after the time prescribed
by rule 9.120(b), whichever is later.
(d) Clerk’s Duty. When a proceeding is dismissed under this
rule, the clerk of the court shall notify the clerk of the lower
tribunal.
(e) Automatic Stay. The filing of a stipulation for dismissal
or notice of dismissal automatically stays that portion of the
proceedings for which a dismissal is being sought, pending further
order of the court.
Committee Notes
1977 Amendment. Subdivision (a) retains the substance of
former rule 3.13(a). On the filing of a stipulation of dismissal, the
clerk of the court will dismiss the case as to the parties signing the
stipulation.
Subdivision (b) is intended to allow an appellant to dismiss the
appeal but a timely perfected cross-appeal would continue. A
voluntary dismissal would not be effective until after the time for
joinder in appeal or cross-appeal. This limitation was created so
that an opposing party desiring to have adverse rulings reviewed by
a cross-appeal cannot be trapped by a voluntary dismissal by the
appellant after the appeal time has run, but before an appellee has
filed the notice of joinder or cross-appeal.
Subdivision (c) retains the substance of former rule 3.13(c).
2014 Amendment. The addition of subdivision (d) clarifies
that the filing of a stipulation or notice of dismissal does not itself
dismiss the cause, while now providing for an automatic stay once a
stipulation or notice is filed. The amendment is intended to limit
any further litigation regarding matters that are settled or may be
voluntarily dismissed, until the court determines whether to
recognize the dismissal.
RULE 9.360 cases. PARTIES
(a) Joinder for Realignment as Appellant or Petitioner.
An appellee or respondent who desires to realign as an appellant or
petitioner must serve a notice of joinder no later than the latest of
the following:
(1) within 15 days of service of a timely filed notice of
appeal or petition;
(2) within the time prescribed for filing a notice of
appeal; or
(3) within the time prescribed in rule 9.100(c).
The notice of joinder must be filed in the appellate court either
before service or immediately thereafter. The body of the notice
must set forth the proposed new caption. The notice must be
accompanied by any required filing fee except as provided in rule
9.430 for proceedings by indigents. On filing the notice and
payment of the fee, the clerk of the court will change the caption to
reflect the realignment of the parties in the notice.
(b) Attorneys; Representatives; Guardians Ad Litem.
Attorneys, representatives, and guardians ad litem in the lower
tribunal will retain their status in the court unless others are duly
appointed or substituted; however, for limited representation
proceedings under rule 9.440 or Florida Family Law Rule of
Procedure 12.040, representation terminates on the filing of a
notice of completion titled “Termination of Limited Appearance”
pursuant to rule 9.440 or rule 12.040(c).
(c) Substitution of Parties.
(1) If substitution of a party is necessary for any
reason, the court may so order on its own motion or that of a party.
(2) Public officers as parties in their official capacities
may be described by their official titles rather than by name. Their
successors in office will be automatically substituted as parties.
(3) If a party dies while a proceeding is pending and
that party’s rights survive, the court may order the substitution of
the proper party on its own motion or that of any interested person.
(4) If a person entitled to file a notice of appeal dies
before filing and that person’s rights survive, the notice may be filed
by the personal representative, the person’s attorney, or, if none, by
any interested person. Following filing, the proper party will be
substituted.
Committee Notes
1977 Amendment. This rule is intended as a simplification of
the former rules with no substantial change in practice.
Subdivision (a) is a simplification of the provisions of former
rule 3.11(b), with modifications recognizing the elimination of
assignments of error.
Subdivision (b) retains the substance of former rule 3.11(d).
Subdivision (c)(1) substantially simplifies the procedure for
substituting parties. This change is in keeping with the overall
concept of this revision that these rules should identify material
events that may or should occur in appellate proceedings and
specify in general terms how that event should be brought to the
attention of the court and how the parties should proceed. The
manner in which these events shall be resolved is left to the courts,
the parties, the substantive law, and the circumstances of the
particular case.
Subdivision (c)(2) is new and is intended to avoid the necessity
of motions for substitution if the person holding a public office is
changed during the course of proceedings. It should be noted that
the style of the case does not necessarily change.
Subdivision (c)(4) is new, and is intended to simplify the
procedure and avoid confusion if a party dies before an appellate
proceeding is instituted. Substitutions in such cases are to be made
according to subdivision (c)(1).
2018 Amendment. The title of subdivision (a) was amended to
clarify that the joinder permitted by this rule is only for the purpose
of realigning existing parties to the appeal. The required notice
pursuant to subdivision (a) retains the original terminology and
continues to be referred to as a “notice of joinder” consistent with
the existing statutory scheme to collect a fee for filing such a notice.
Subdivision (a) was also amended to remove the prior directions for
filing the notice “in the same manner as the petition or notice of
appeal,” so that a notice of realignment is now properly filed in the
court.
RULE 9.370 cases. AMICUS CURIAE
(a) When Permitted. An amicus curiae may file a brief only
by leave of court. A motion for leave to file must state the movant’s
interest, the particular issue to be addressed, how the movant can
assist the court in the disposition of the case, and whether all
parties consent to the filing of the amicus brief.
(b) Contents and Form. An amicus brief must comply with
rule 9.210(b) but shall omit a statement of the case and facts and
may not exceed 5,000 words if computer-generated or 20 pages if
handwritten or typewritten. The cover must identify the party or
parties supported. An amicus brief must include a concise
statement of the identity of the amicus curiae and its interest in the
case.
(c) Time for Service. An amicus curiae must serve its brief
no later than 10 days after the first brief, petition, or response of
the party being supported is filed. An amicus curiae that does not
support either party must serve its brief no later than 10 days after
the initial brief or petition is filed. A court may grant leave for later
service, specifying the time within which an opposing party may
respond. The service of an amicus brief does not alter or extend the
briefing deadlines for the parties. An amicus curiae may not file a
reply brief. Leave of court is required to serve an amicus brief in
support of or opposition to a motion for rehearing, rehearing en
banc, or for certification to the supreme court.
(d) Notice of Intent to File Amicus Brief in the Supreme
Court of Florida. When a party has invoked the discretionary
jurisdiction of the supreme court, an amicus curiae may file a
notice with the court indicating its intent to seek leave to file an
amicus brief on the merits should the court accept jurisdiction. The
notice shall state briefly why the case is of interest to the amicus
curiae, but shall not contain argument. The body of the notice shall
not exceed 250 words if computer-generated or 1 page if
handwritten or typewritten.
Committee Notes
1977 Amendment. This rule replaces former rule 3.7(k) and
expands the circumstances in which amicus curiae briefs may be
filed to recognize the power of the court to request amicus curiae
briefs.
2008 Amendment. Subdivision (d) was added to establish a
procedure for an amicus curiae to expeditiously inform the supreme
court of its intent to seek leave to file an amicus brief on the merits
should the court accept jurisdiction. This rule imposes no
obligation on the supreme court to delay its determination of
jurisdiction. Thus, an amicus curiae should file its notice as soon
as possible after the filing of the notice to invoke discretionary
jurisdiction of the supreme court. The filing of a notice under
subdivision (d) is optional and shall not relieve an amicus curiae
from compliance with the provisions of subdivision (a) of this rule if
the court accepts jurisdiction.
RULE 9.380 cases. NOTICE OF RELATED CASE OR ISSUE
A party is permitted to file a notice of related case or issue
informing the court of a pending, related case arising out of the
same proceeding in the lower tribunal or involving a similar issue of
law. The notice shall only include information identifying the related
case. The notice shall not contain argument and shall be in
substantially the format prescribed by rule 9.900(k).
RULE 9.400 cases. COSTS AND ATTORNEYS’ FEES
(a) Costs. Costs will be taxed in favor of the prevailing party
unless the court orders otherwise. Taxable costs include:
(1) fees for filing and service of process;
(2) charges for preparation of the record and any
hearing or trial transcripts necessary to determine the proceeding;
(3) bond premiums; and
(4) other costs permitted by law.
Costs will be taxed by the lower tribunal on a motion served no later
than 45 days after rendition of the court’s order. If an order is
entered either staying the issuance of or recalling a mandate, the
lower tribunal is prohibited from taking any further action on costs
pending the issuance of a mandate or further order of the court.
(b) Attorneys’ Fees. With the exception of motions filed
under rule 9.410(b), a motion for attorneys’ fees must state the
grounds on which recovery is sought and must be served not later
than:
(1) in appeals, the time for service of the reply brief;
(2) in original proceedings, the time for service of the
petitioner’s reply to the response to the petition;
(3) in discretionary review proceedings commenced
under rule 9.030(a)(2)(A), the time for serving the respondent’s brief
on jurisdiction, or if jurisdiction is accepted, the time for serving the
reply brief; or
(4) in proceedings in which the court renders an order
of dismissal before the otherwise applicable deadline for filing a
motion for attorneys’ fees has expired, not later than 7 days after
rendition of the order of dismissal.
The assessment of attorneys’ fees may be remanded to the lower
tribunal. If attorneys’ fees are assessed by the court, the lower
tribunal may enforce payment.
(c) Review. Review of orders rendered by the lower tribunal
under this rule will be by motion filed in the court within 30 days of
rendition.
Committee Notes
1977 Amendment. Subdivision (a) replaces former rules
3.16(a) and (b). It specifies allowable cost items according to the
current practice. Item (3) is not intended to apply to bail bond
premiums. Item (4) is intended to permit future flexibility. This rule
provides that the prevailing party must move for costs in the lower
tribunal within 30 days after issuance of the mandate.
Subdivision (b) retains the substance of former rule 3.16(e).
The motion for attorneys’ fees must contain a statement of the legal
basis for recovery. The elimination of the reference in the former
rule to attorneys’ fees “allowable by law” is not intended to give a
right to assessment of attorneys’ fees unless otherwise permitted by
substantive law.
Subdivision (c) replaces former rules 3.16(c) and (d). It
changes from 20 days to 30 days the time for filing a motion to
review an assessment of costs or attorneys’ fees by a lower tribunal
acting under order of the court.
2018 Amendment. Subdivision (b) is amended to specify the
time limit for serving a motion for attorneys’ fees in a discretionary
review proceeding in the Supreme Court of Florida. Absent a
statement to the contrary in the motion, any timely motion for
attorneys’ fees, whether served before or after the acceptance of
jurisdiction, will function to request attorneys’ fees incurred in both
the jurisdiction and merits phases of the proceeding. As a result,
generally only 1 motion per party per proceeding is contemplated.
RULE 9.410 cases. SANCTIONS
(a) Court’s Motion. After 10 days’ notice, on its own motion,
the court may impose sanctions for any violation of these rules, or
for the filing of any proceeding, motion, brief, or other document
that is frivolous or in bad faith. Such sanctions may include
reprimand, contempt, striking of briefs or pleadings, dismissal of
proceedings, costs, attorneys’ fees, or other sanctions.
(b) Motion by a Party.
(1) Applicability. Any contrary requirements in these
rules notwithstanding, the following procedures apply to a party
seeking an award of attorneys’ fees as a sanction against another
party or its counsel pursuant to general law.
(2) Proof of Service. A motion seeking attorneys’ fees as
a sanction shall include an initial certificate of service, pursuant to
rule 9.420(d) and subdivision (b)(3) of this rule, and a certificate of
filing, pursuant to subdivision (b)(4) of this rule.
(3) Initial Service. A motion for attorneys’ fees as a
sanction must initially be served only on the party against whom
sanctions are sought. Initial service shall be made in conformity
with the requirements of Florida Rule of General Practice and
Judicial Administration 2.516. That motion shall be served no later
than the time for serving any permitted response to a challenged
document or, if no response is permitted as of right, within 20 days
after a challenged document is served or a challenged claim,
defense, contention, allegation, or denial is made at oral argument.
A certificate of service that complies with rule 9.420(d) and that
reflects service pursuant to this subdivision shall accompany the
motion and shall be taken as prima facie proof of the date of service
pursuant to this subdivision. A certificate of filing pursuant to
subdivision (b)(4) of this rule shall also accompany the motion, but
should remain undated and unsigned at the time of the initial
service pursuant to this subdivision.
(4) Filing and Final Service. If the challenged document,
claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected within 21 days after initial service of the
motion under subdivision (b)(3), the movant may file the motion for
attorneys’ fees as a sanction with the court (A) no later than the
time for service of the reply brief, if applicable, or (B) no later than
45 days after initial service of the motion, whichever is later.
The movant shall serve upon all parties the motion filed with
the court. A certificate of filing that complies in substance with the
form below, and which shall be dated and signed at the time of final
service pursuant to this subdivision, shall be taken as prima facie
proof of such final service.
I certify that on . . . . .(date). . . . . , a copy of this previously
served motion has been furnished to .....(court)..... by .....hand
delivery/mail/other delivery source..... and has been furnished to
.....(name or names)..... by .....hand delivery/mail/other delivery
source......
(5) Response. A party against whom sanctions are
sought may serve 1 response to the motion within 15 days of the
final service of the motion. The court may shorten or extend the
time for response to the motion.
Committee Notes
1977 Amendment. This rule replaces former rule 3.17. This
rule specifies the penalties or sanctions that generally are imposed,
but does not limit the sanctions available to the court. The only
change in substance is that this rule provides for 10 days notice to
the offending party before imposition of sanctions.
2010 Amendment. Subdivision (b) is adopted to make rule
9.410 consistent with section 57.105, Florida Statutes (2009).
RULE 9.420 cases. FILING; SERVICE; COMPUTATION OF TIME
(a) Filing.
(1) Generally. Filing may be accomplished in conformity
with the requirements of Florida Rule of General Practice and
Judicial Administration 2.525.
(2) Inmate Filing. The filing date of a document filed by
a pro se inmate confined in an institution will be presumed to be
the date it is stamped for filing by the clerk of the court, except as
follows:
(A) the document will be presumed to be filed on
the date the inmate places it in the hands of an institutional official
for mailing if the institution has a system designed for legal mail,
the inmate uses that system, and the institution’s system records
that date; or
(B) the document will be presumed to be filed on
the date reflected on a certificate of service contained in the
document if the certificate is in substantially the form prescribed by
subdivision (d)(1) of this rule and either:
(i) the institution does not have a system
designed for legal mail; or
(ii) the inmate used the institution’s system
designed for legal mail, if any, but the institution’s system does not
provide for a way to record the date the inmate places the document
in the hands of an institutional official for mailing.
(b) Service.
(1) By a Party or Amicus Curiae. All documents must be
filed either before service or immediately thereafter. A copy of all
documents filed under these rules must, before filing or
immediately thereafter, be served on each of the parties. The lower
tribunal, before the record is transmitted, or the court, on motion,
may limit the number of copies to be served.
(2) By the Clerk of the Court. A copy of all orders and
decisions must be transmitted, in the manner set forth for service
in rule 9.420(c), by the clerk of the court to all parties at the time of
entry of the order or decision, without first requiring payment of
any costs for the copies of those orders and decisions. Before the
court’s entry of an order or decision, the court may require that the
parties furnish the court with stamped, addressed envelopes for
transmission of the order or decision.
(c) Method of Service. Service of every document filed in a
proceeding governed by these rules (including any briefs, motions,
notices, responses, petitions, and appendices) must be made in
conformity with the requirements of Florida Rule of General Practice
and Judicial Administration 2.516(b). Service of any document
required to be served but not filed contemporaneously must be
made in conformity with the requirements of Florida Rule of
General Practice and Judicial Administration 2.516, unless a court
orders, a statute specifies, or a supreme court administrative order
specifies a different means of service.
(d) Proof of Service. A certificate of service by an attorney
that complies in substance with the requirements of Florida Rule of
General Practice and Judicial Administration 2.516(f) and a
certificate of service by a pro se party that complies in substance
with the appropriate form below will be taken as prima facie proof of
service in compliance with these rules. The certificate must specify
the party each attorney represents.
(1) By Pro Se Inmate:
I certify that I placed this document in the hands of .....(here insert
name of institution official)..... for mailing to .....(here insert name
or names and addresses used for service)..... on .....(date)......
…..(name)…..
…..(address)…..
…..(prison identification
number)…..
(2) By Other Pro Se Litigants:
I certify that a copy hereof has been furnished to .....(here insert
name or names and addresses used for service)..... by .....(e-mail)
(delivery) (mail)..... on .....(date)......
…..(name)…..
…..(address)…..
…..(phone number)…..
(e) Computation. Computation of time is governed by
Florida Rule of General Practice and Judicial Administration 2.514.
Committee Notes
1977 Amendment. Subdivision (a) replaces former rule 3.4(a).
The last sentence of former rule 3.4(a) was eliminated as
superfluous. The filing of papers with a judge or justice is permitted
at the discretion of the judge or justice. The advisory committee
recommends that the ability to file with a judge or justice be
exercised only if necessary, and that care be taken not to discuss in
any manner the merits of the document being filed. See Fla. Code
Prof. Resp., DR 7-110(B) (now R. Regulating Fla. Bar 4-3.5(b)); Fla.
Code Jud. Conduct, Canon 3(A)(4).
Subdivision (b) replaces and simplifies former rules 3.4(b)(5)
and 3.6(i)(3). The substance of the last sentence of former rule
3.4(b)(5) is preserved. It should be noted that except for the notices
or petitions that invoke jurisdiction, these rules generally provide
for service by a certain time rather than filing. Under this provision
filing must be done before service or immediately thereafter.
Emphasis has been placed on service so as to eliminate the
hardship on parties caused by tardy service under the former rules
and to eliminate the burden placed on the courts by motions for
extension of time resulting from such tardy service. It is anticipated
that tardy filing will occur less frequently under these rules than
tardy service under the former rules because the parties are
unlikely to act in a manner that would irritate the court. The
manner for service and proof thereof is provided in subdivision (c).
Subdivision (d) replaces former rule 3.4(b)(3) and provides that
if a party or clerk is required or permitted to do an act within a
prescribed time after service, 5 days (instead of 3 days under the
former rule) shall be added to the time if service is by mail.
Subdivision (e) replaces former rule 3.18 with no substantial
change. “Holiday” is defined to include any day the clerk’s office is
closed whether or not done by order of the court. The holidays
specifically listed have been included, even though many courts do
not recognize them as holidays, to not place a burden on
practitioners to check whether an individual court plans to observe
a particular holiday.
1980 Amendment. Subdivision (b) was amended to provide
that either the lower tribunal or the court may limit the number of
copies to be served. The rule contemplates that the number of
copies may be limited on any showing of good cause, for example,
that the number of copies involved is onerous or that the appeal
involves questions with which some parties have no interest in the
outcome or are so remotely involved as not to justify furnishing a
complete record to them at appellant’s initial cost. The availability
of the original record at the clerk’s office of the lower tribunal until
due at the appellate court is a factor to be considered.
2014 Amendment. Subdivision (a)(2) has been completely
rewritten to conform this rule to Thompson v. State, 761 So. 2d 324
(Fla. 2000), and the federal mailbox rule adopted in Haag v. State,
591 So. 2d 614 (Fla. 1992). The amendment clarifies that an inmate
is required to use the institutional system designed for legal mail, if
there is one, in order to receive the benefits of the mailbox rule
embodied in this subdivision. If the institution’s legal mail system
records the date the document is provided to institutional officials
for mailing (e.g. Rule 33-210.102(8), Florida Administrative Code
(2010)), that date is presumed to be the date of filing. If the
institution’s legal mail system does not record the date the
document is provided to institutional officials—or if the institution
does not have a system for legal mail at all—the date of filing is
presumed to be the date reflected on the certificate of service
contained in the document, if the certificate of service is in
substantial conformity with subdivision (d)(1) of this rule. If the
inmate does not use the institution’s legal mail system when one
exists—or if the inmate does not include in the document a
certificate of service when the institution does not have a legal mail
system—the date the document is filed is presumed to be the date it
is stamped for filing by the clerk of the court.
Court Commentary
2000. Subdivision (a)(2) codifies the Florida Supreme Court’s
holding in Thompson v. State, 761 So. 2d 324 (Fla. 2000).
RULE 9.425 cases. CONSTITUTIONAL CHALLENGE TO STATE
STATUTE OR STATE CONSTITUTIONAL
PROVISION
In cases not involving criminal or collateral criminal
proceedings, a party that files a petition, brief, written motion, or
other document drawing into question the constitutionality of a
state statute or state constitutional provision, at the time the
document is filed in the case, shall:
(a) file a notice of constitutional question stating the
question and identifying the document that raises it; and
(b) serve the notice and a copy of the petition, brief, written
motion, or other document, in compliance with rule 9.420, on the
attorney general.
Service of the petition, brief, written motion, or other
document does not require joinder of the attorney general as a party
to the action. Notice under this rule is not required if the attorney
general is a party, or counsel to a party, to a proceeding under
these rules.
Committee Notes
2020 Adoption. The rule applies in cases not involving
criminal or collateral criminal proceedings and provides procedural
guidance on notifying the Florida Attorney General of constitutional
challenges to state statutes or provisions of the state constitution as
the Florida Attorney General has the discretion to participate and
be heard on matters affecting the constitutionality of a state law.
This rule is similar to Florida Rule of Civil Procedure 1.071. See
form 9.900(m).
RULE 9.430 cases. PROCEEDINGS BY INDIGENTS
(a) Appeals. A party who has the right to seek review by
appeal without payment of costs must, unless the court directs
otherwise, file a signed application for determination of indigent
status with the clerk of the lower tribunal, using an application
form approved by the supreme court for use by clerks of the lower
tribunal. The clerk of the lower tribunal’s reasons for denying the
application must be stated in writing and are reviewable by the
lower tribunal. Review of decisions by the lower tribunal will be by
motion filed in the court.
(b) Appeals and Discretionary Reviews in the Supreme
Court. The supreme court may, in its discretion, presume that any
party who has been declared indigent for purposes of proceedings
by the lower tribunal remains indigent, in the absence of evidence
to the contrary. Any party not previously declared indigent who
seeks review by appeal or discretionary review without the payment
of costs may, unless the supreme court directs otherwise, file with
the supreme court a motion to proceed in forma pauperis. If the
motion is granted, the party may proceed without further
application to the supreme court.
(c) Original Proceedings. A party who seeks review by an
original proceeding under rule 9.100 without the payment of costs
must, unless the court directs otherwise, file with the court a
motion to proceed in forma pauperis. If the motion is granted, the
party may proceed without further application to the court.
(d) Incarcerated Parties.
(1) Presumptions. In the absence of evidence to the
contrary, a court may, in its discretion, presume that:
(A) assertions in an application for determination
of indigent status filed by an incarcerated party under this rule are
true; and
(B) in cases involving criminal or collateral
criminal proceedings, an incarcerated party who has been declared
indigent for purposes of proceedings in the lower tribunal remains
indigent.
(2) Non-Criminal Proceedings. Except in cases involving
criminal or collateral proceedings, an application for determination
of indigent status filed under this rule by a person who has been
convicted of a crime and is incarcerated for that crime or who is
being held in custody pending extradition or sentencing must
contain substantially the same information as required by an
application form approved by the supreme court for use by clerks of
the lower tribunal. The determination of whether the case involves
an appeal from an original criminal or collateral proceeding depends
on the substance of the issues raised and not on the form or title of
the petition or complaint. In these non-criminal cases, the clerk of
the lower tribunal must, to the extent required by general law,
require the party to make a partial prepayment of court costs or
fees and to make continued partial payments until the full amount
is paid.
(e) Parties in Juvenile Dependency and Termination of
Parental Rights Cases; Presumption. In cases involving
dependency or termination of parental rights, a court may, in its
discretion, presume that any party who has been declared indigent
for purposes of proceedings by the lower tribunal remains indigent,
in the absence of evidence to the contrary.
Committee Notes
1977 Adoption. This rule governs the manner in which an
indigent may proceed with an appeal without payment of fees or
costs and without bond. Adverse rulings by the lower tribunal must
state in writing the reasons for denial. Provision is made for review
by motion. Such motion may be made without the filing of fees as
long as a notice has been filed, the filing of fees not being
jurisdictional. This rule is not intended to expand the rights of
indigents to proceed with an appeal without payment of fees or
costs. The existence of such rights is a matter governed by
substantive law.
2008 Amendment. Subdivision (b) was created to differentiate
the treatment of original proceedings from appeals under this rule.
Each subdivision was further amended to comply with statutory
amendments to section 27.52, Florida Statutes, the legislature’s
enactment of section 57.082, Florida Statutes, and the Florida
Supreme Court’s opinion in In re Approval of Application for
Determination of Indigent Status Forms for Use by Clerks, 910 So. 2d
194 (Fla. 2005).
RULE 9.440 cases. ATTORNEYS
(a) Foreign Attorneys. An attorney who is an active member
in good standing of the bar of another state may be permitted to
appear in a proceeding in compliance with Florida Rule of General
Practice and Judicial Administration 2.510.
(b) Limiting Appearance. An attorney of record for a party
in an appeal or original proceeding governed by these rules will be
the attorney of record throughout the same appeal or original
proceeding unless at the time of appearance the attorney files a
notice specifically limiting the attorney’s appearance only to a
particular matter or portion of the proceeding in which the attorney
appears.
(c) Scope of Representation. If an attorney appears for a
particular limited matter or portion of a proceeding, as provided by
this rule, that attorney will be deemed “of record” for only that
particular matter or portion of the proceeding. If the party
designates e-mail address(es) for service on and by that party, the
party’s e-mail address(es) must also be included. At the conclusion
of such matter or that portion of the proceeding, the attorney’s role
terminates without the necessity of leave of court on the attorney
filing a notice of completion of limited appearance. The notice of
termination of limited appearance must be substantially in the form
prescribed by rule 9.900(n) and must include the names and last
known addresses of the person(s) represented by the withdrawing
attorney.
(d) Withdrawal of Attorneys; Substitution of Attorneys.
(1) If an attorney complies with subdivisions (b) and (c)
of this rule, the attorney may withdraw without leave of court.
(2) If an attorney from the same firm, company, or
governmental agency has already appeared on behalf of the client or
is the proposed substitute counsel, withdrawal and substitution
may be completed by filing a notice under the Florida Rules of
General Practice and Judicial Administration. A copy of the notice
must be served on the client and adverse parties.
(3) All other attorneys must first seek leave of court to
withdraw. The attorney must file a motion for that purpose stating
the reasons for withdrawal and the client’s address. A copy of the
motion must be served on the client and adverse parties.
Committee Notes
1977 Amendment. This rule replaces former rule 2.3 with
unnecessary subdivisions deleted. The deletion of former rule 2.3(c)
was not intended to authorize the practice of law by research aides
or secretaries to any justice or judge or otherwise approve actions
inconsistent with the high standards of ethical conduct expected of
such persons.
Subdivision (a) permits foreign attorneys to appear on motion
filed and granted at any time. See Fla. Bar Integr. Rule By-Laws,
art. II, § 2. There is no requirement that the foreign attorney be
from a jurisdiction giving a reciprocal right to members of The
Florida Bar. This rule leaves disposition of motions to appear to the
discretion of the court.
Subdivision (b) is intended to protect the rights of parties and
attorneys, and the needs of the judicial system.
This rule does not affect the right of a party to employ
additional attorneys who, if members of The Florida Bar, may
appear at any time.
2002 Amendment. The amendments to subdivision (a) are
intended to make that subdivision consistent with Florida Rule of
Judicial Administration 2.061, which was adopted in 2001, and the
amendments to subdivision (b) are intended to make that
subdivision consistent with Florida Rule of Judicial Administration
2.060(i).
RULE 9.500 cases. ADVISORY OPINIONS TO GOVERNOR
(a) Filing. A request by the governor for an advisory opinion
from the justices of the supreme court on a question affecting
gubernatorial powers and duties shall be in writing. The request
shall be filed with the clerk of the supreme court.
(b) Procedure. As soon as practicable after the filing of the
request, the justices shall determine whether the request is within
the purview of article IV, section 1(c) of the Florida Constitution,
and proceed as follows:
(1) If 4 justices concur that the question is not within
the purview of article IV, section 1(c) of the Florida Constitution, the
governor shall be advised forthwith in writing and a copy shall be
filed in the clerk’s office.
(2) If the request is within the purview of article IV,
section 1(c) of the Florida Constitution, the court shall permit,
subject to its rules of procedure, interested persons to be heard on
the questions presented through briefs, oral argument, or both.
(3) The justices shall file their opinions in the clerk’s
office not earlier than 10 days from the filing and docketing of the
request, unless in their judgment the delay would cause public
injury. The governor shall be advised forthwith in writing.
Committee Notes
1977 Amendment. This rule simplifies former rule 2.1(h)
without material change.
RULE 9.510 cases. ADVISORY OPINIONS TO ATTORNEY GENERAL
(a) Filing. A request by the attorney general for an advisory
opinion from the justices of the supreme court concerning the
validity of an initiative petition for the amendment of the Florida
Constitution shall be in writing. The request shall be filed with the
clerk of the supreme court.
(b) Contents of Request. In addition to the language of the
proposed amendment, the request referenced in subdivision (a)
must contain the following information:
(1) the name and address of the sponsor of the
initiative petition;
(2) the name and address of the sponsor’s attorney, if
the sponsor is represented;
(3) a statement as to whether the sponsor has obtained
the requisite number of signatures on the initiative petition to have
the proposed amendment put on the ballot;
(4) if the sponsor has not obtained the requisite
number of signatures on the initiative petition to have the proposed
amendment put on the ballot, the current status of the signature-
collection process;
(5) the date of the election during which the sponsor is
planning to submit the proposed amendment to the voters;
(6) the last possible date that the ballot for the target
election can be printed in order to be ready for the election;
(7) a statement identifying the date by which the
Financial Impact Statement will be filed, if the Financial Impact
Statement is not filed concurrently with the request; and
(8) the names and complete mailing addresses of all of
the parties who are to be served.
(c) Procedure.
(1) The court shall permit, subject to its rules of
procedure, interested persons to be heard on the questions
presented through briefs, oral argument, or both.
(2) The justices shall render their opinions no later
than April 1 of the year in which the initiative is to be submitted to
the voters pursuant to article XI, section 5 of the Florida
Constitution.
Committee Notes
1980 Amendment. This rule has been replaced in its entirety
by new Rule 9.150.
[The original rule 9.510 was moved to 9.150 in 1980.]
RULE 9.600 cases. JURISDICTION OF LOWER TRIBUNAL PENDING
REVIEW
(a) Concurrent Jurisdiction. Only the court may grant an
extension of time for any act required by these rules. Before the
record is docketed, the lower tribunal shall have concurrent
jurisdiction with the court to render orders on any other procedural
matter relating to the cause, subject to the control of the court,
provided that clerical mistakes in judgments, decrees, or other
parts of the record arising from oversight or omission may be
corrected by the lower tribunal on its own initiative after notice or
on motion of any party before the record is docketed in the court,
and, thereafter with leave of the court.
(b) Further Proceedings. If the jurisdiction of the lower
tribunal has been divested by an appeal from a final order, the
court by order may permit the lower tribunal to proceed with
specifically stated matters during the pendency of the appeal.
(c) Family Law Matters. In family law matters:
(1) The lower tribunal shall retain jurisdiction to enter
and enforce orders awarding separate maintenance, child support,
alimony, attorneys’ fees and costs for services rendered in the lower
tribunal, temporary attorneys’ fees and costs reasonably necessary
to prosecute or defend an appeal, or other awards necessary to
protect the welfare and rights of any party pending appeal.
(2) The receipt, payment, or transfer of funds or
property under an order in a family law matter shall not prejudice
the rights of appeal of any party. The lower tribunal shall have the
jurisdiction to impose, modify, or dissolve conditions upon the
receipt or payment of such awards in order to protect the interests
of the parties during the appeal.
(3) Review of orders entered pursuant to this
subdivision shall be by motion filed in the court within 30 days of
rendition.
(d) Criminal Cases. The lower tribunal shall retain
jurisdiction to consider motions pursuant to Florida Rules of
Criminal Procedure 3.800(b)(2) and in conjunction with post-trial
release pursuant to rule 9.140(h).
Committee Notes
1977 Amendment. This rule governs the jurisdiction of the
lower tribunal during the pendency of review proceedings, except
for interlocutory appeals. If an interlocutory appeal is taken, the
lower tribunal’s jurisdiction is governed by rule 9.130(f).
Subdivision (b) replaces former rule 3.8(a). It allows for
continuation of various aspects of the proceeding in the lower
tribunal, as may be allowed by the court, without a formal remand
of the cause. This rule is intended to prevent unnecessary delays in
the resolution of disputes.
Subdivision (c) is derived from former rule 3.8(b). It provides
for jurisdiction in the lower tribunal to enter and enforce orders
awarding separate maintenance, child support, alimony, temporary
suit money, and attorneys’ fees. Such orders may be reviewed by
motion.
1980 Amendment. Subdivision (a) was amended to clarify the
appellate court’s paramount control over the lower tribunal in the
exercise of its concurrent jurisdiction over procedural matters. This
amendment would allow the appellate court to limit the number of
extensions of time granted by a lower tribunal, for example.
1994 Amendment. Subdivision (c) was amended to conform
to and implement section 61.16(1), Florida Statutes (1994 Supp.),
authorizing the lower tribunal to award temporary appellate
attorneys’ fees, suit money, and costs.
1996 Amendment. New rule 9.600(d) recognizes the
jurisdiction of the trial courts, while an appeal is pending, to rule
on motions for post-trial release, as authorized by rule 9.140(g), and
to decide motions pursuant to Florida Rule of Criminal Procedure
3.800(a), as authorized by case law such as Barber v. State, 590 So.
2d 527 (Fla. 2d DCA 1991).
RULE 9.700 cases. MEDIATION RULES
(a) Applicability. Rules 9.700 – 9.740 apply to all appellate
courts, including circuit courts exercising jurisdiction under rule
9.030(c), district courts of appeal, and the supreme court.
(b) Referral. The court, upon its own motion or upon motion
of a party, may refer a case to mediation at any time and may direct
that the mediation be conducted in person, through the use of
communication technology as that term is defined in Florida Rule of
General Practice and Judicial Administration 2.530, or by a
combination thereof. A motion from a party must contain a
certificate that the movant has consulted with opposing counsel or
unrepresented party and that the movant is authorized to represent
with respect to the mediation and, if applicable, with respect to the
movant’s request to use communication technology that opposing
counsel or unrepresented party:
(1) has no objection;
(2) objects and cites the specific reasons for objection;
or
(3) will promptly file an objection.
Absent direction in the court’s order of referral, mediation must be
conducted in person, unless the parties stipulate or the court, on
its own motion or on motion by a party, otherwise orders that the
proceedings be conducted by communication technology or by a
combination of communication technology and in-person
participation.
(c) Time Frames for Mediation. The first mediation
conference shall be commenced within 45 days of referral by the
court, unless the parties agree to postpone mediation until after the
period for filing briefs has expired. The mediation shall be
completed within 30 days of the first mediation conference. These
times may be modified by order of the court.
(d) Tolling of Times. Unless otherwise ordered, or upon
agreement of the parties to postpone mediation until after the
expiration of time for filing the appellate briefs, all times under
these rules for the processing of cases shall be tolled for the period
of time from the referral of a case to mediation until mediation ends
pursuant to section 44.404, Florida Statutes. The court, by
administrative order, may provide for additional tolling of deadlines.
A motion for mediation filed by a party within 30 days of the notice
of appeal shall toll all deadlines under these rules until the motion
is ruled upon by the court.
(e) Motion to Dispense with Mediation. A motion to
dispense with mediation may be served not later than 10 days after
the discovery of the facts that constitute the grounds for the
motion, if:
(1) the order violates rule 9.710; or
(2) other good cause is shown.
RULE 9.710 cases. ELIGIBILITY FOR MEDIATION
Any case filed may be referred to mediation at the discretion of
the court, but under no circumstances may the following categories
of actions be referred:
(a) criminal and post-conviction cases;
(b) habeas corpus and extraordinary writs;
(c) civil or criminal contempt;
(d) involuntary civil commitments of sexually violent
predators;
(e) collateral criminal cases; and
(f) other matters as may be specified by administrative
order.
RULE 9.720 cases. MEDIATION PROCEDURES
(a) Appearance. If a party to mediation is a public entity
required to conduct its business pursuant to chapter 286, Florida
Statutes, that party is deemed to appear at a mediation conference
by the presence of a representative with full authority to negotiate
on behalf of the entity and to recommend settlement to the
appropriate decision-making body of the entity. Otherwise, a party
is deemed to appear at a mediation conference by the presence of
the following persons:
(1) the party or its representative having full authority
to settle without further consultation;
(2) the party’s trial or appellate counsel of record, if
any. If a party has more than 1 counsel, the appearance of only 1
counsel is required; and
(3) a representative of the insurance carrier for any
insured party who is not such carrier’s outside counsel and who
has full authority to settle without further consultation.
As used in this subdivision, the term “presence” means physical
presence at the mediation conference or participation using
communication technology if authorized under rule 9.700(b).
(b) Sanctions. If a party fails to appear at a duly noticed
mediation conference without good cause, the court, upon motion of
a party or upon its own motion, may impose sanctions, including,
but not limited to, any or all of the following, against the party
failing to appear:
(1) an award of mediator and attorneys’ fees and other
costs or monetary sanctions;
(2) the striking of briefs;
(3) elimination of oral argument; or
(4) dismissal or summary affirmance.
(c) Scheduling and Adjournments. Consistent with the
time frames established in rule 9.700(c) and after consulting with
the parties, the mediator shall set the initial conference date. The
mediator may adjourn the mediation conference at any time and
may set times for reconvening the adjourned conference. The
mediator shall notify the parties in writing of the date, time, and
place of any mediation conference, except no further notification is
required for parties present at an adjourned mediation conference.
(d) Control of Procedures. The mediator shall at all times
be in control of the procedures to be followed in the mediation.
(e) Communication with Parties. The mediator may meet
and consult privately with any party or parties or their counsel.
Counsel shall be permitted to communicate privately with their
clients.
(f) Party Representative Having Full Authority to Settle.
Except as provided in subdivision (a) as to public entities, a “party
or its representative having full authority to settle” shall mean the
final decision maker with respect to all issues presented by the case
who has the legal capacity to execute a binding settlement
agreement on behalf of the party. Nothing herein shall be deemed to
require any party or party representative who appears at a
mediation conference in compliance with this rule to enter into a
settlement agreement.
(g) Certificate of Authority. Unless otherwise stipulated by
the parties, each party, 10 days prior to appearing at a mediation
conference, must file with the court and serve upon all parties a
written notice identifying the person or persons who will appear at
the mediation conference as a party representative or as an
insurance carrier representative, and confirming that those persons
have the authority required by this rule.
Committee Note
2014 Amendment. The amendment adding subdivisions (f)
and (g) is intended to make this rule consistent with the November
2011 amendments to Florida Rule of Civil Procedure 1.720.
RULE 9.730 cases. APPOINTMENT AND COMPENSATION OF THE
MEDIATOR
(a) Appointment by Agreement. Within 10 days of the
court order of referral, the parties may file a stipulation with the
court designating a mediator certified as an appellate mediator
pursuant to rule 10.100(f), Florida Rules for Certified and Court-
Appointed Mediators. Unless otherwise agreed to by the parties, the
mediator shall be licensed to practice law in any United States
jurisdiction.
(b) Appointment by Court. If the parties cannot agree upon
a mediator within 10 days of the order of referral, the appellant
shall notify the court immediately and the court shall appoint a
certified appellate mediator selected by such procedure as is
designated by administrative order. The court shall appoint a
certified appellate mediator who is licensed to practice law in any
United States jurisdiction, unless otherwise requested upon
agreement of the parties.
(c) Disqualification of Mediator. Any party may move to
enter an order disqualifying a mediator for good cause. Such a
motion to disqualify shall be filed within a reasonable time, not to
exceed 10 days after discovery of the facts constituting the grounds
for the motion, and shall be promptly presented to the court for an
immediate ruling. If the court rules that a mediator is disqualified
from a case, an order shall be entered setting forth the name of a
qualified replacement. The time for mediation shall be tolled during
any periods in which a motion to disqualify is pending.
(d) Substitute Mediator. If a mediator agreed upon by the
parties or appointed by the court cannot serve, a substitute
mediator may be agreed upon or appointed in the same manner as
the original mediator.
(e) Compensation of a Court-Selected Mediator. If the
court selects the mediator pursuant to subdivision (b), the mediator
shall be compensated at the hourly rate set by the court in the
referral order or applicable administrative order. Unless otherwise
agreed, the compensation of the mediator should be prorated
among the named parties.
Committee Notes
This rule is not intended to limit the parties from exercising
self-determination in the selection of any appropriate form of
alternative dispute resolution or to deny the right of the parties to
select a neutral. The rule does not prohibit parties from selecting an
otherwise qualified non-certified appellate mediator prior to the
court’s order of referral. Parties may pursue settlement with a non-
certified appellate mediator even within the ten-day period following
the referral. However, once parties agree on a certified appellate
mediator, or notify the court of their inability to do so, the parties
can satisfy the court’s referral to mediation pursuant to these rules
only by appearing at a mediation conducted by a supreme court
certified appellate mediator.
RULE 9.740 cases. COMPLETION OF MEDIATION
(a) No Agreement. If the parties do not reach an agreement
as a result of mediation, the mediator shall report, within 10 days,
the lack of an agreement to the court without comment or
recommendation.
(b) Agreement. If a partial or final agreement is reached, it
shall be reduced to writing and signed by the parties and their
counsel, if any. Signatures may be original, electronic, or facsimile
and may be in counterparts. Within 10 days thereafter, the
mediator shall file a report with the court on a form approved by the
court.
(c) Enforceability. The parties may not object to the
enforceability of an agreement on the ground that communication
technology was used for participation in the mediation conference if
such use was authorized under rule 9.700(b).
RULE 9.800 cases. UNIFORM CITATION SYSTEM
This rule applies to all legal documents, including court
opinions. Except for citations to case reporters, all citation forms
should be spelled out in full if used as an integral part of a sentence
either in the text or in footnotes. Abbreviated forms as shown in
this rule should be used if the citation is intended to stand alone
either in the text or in footnotes.
(a) Florida Supreme Court.
(1) 1887–present: Fenelon v. State, 594 So. 2d 292 (Fla.
1992).
(2) 1846–1886: Livingston v. L’Engle, 22 Fla. 427
(1886).
(3) For cases not published in Southern Reporter, cite to
Florida Law Weekly: Traylor v. State, 17 Fla. L. Weekly S42 (Fla.
Jan. 16, 1992). If not therein, cite to the slip opinion: Medina v.
State, No. SC00-280 (Fla. Mar. 14, 2002). With a slip opinion cite,
citations to Westlaw: Singh v. State, No. SC10-1544, 2014 WL
7463592 (Fla. Dec. 30, 2014), or LEXIS: Johnston v. State, No.
SC09-839, 2010 Fla. LEXIS 62 (Fla. Jan. 21, 2010), may also be
provided.
(b) Florida District Courts of Appeal.
(1) Buncayo v. Dribin, 533 So. 2d 935 (Fla. 3d DCA
1988); Sotolongo v. State, 530 So. 2d 514 (Fla. 2d DCA 1988).
(2) For cases not published in Southern Reporter, cite to
Florida Law Weekly: Myers v. State, 16 Fla. L. Weekly D1507 (Fla.
4th DCA June 5, 1991). If not therein, cite to the slip opinion:
Fleming v. State, No. 1D01-2734 (Fla. 1st DCA Mar. 6, 2002). With
a slip opinion cite, citations to Westlaw: Williams v. State, No.
2D14-2438, 2014 WL 3418358 (Fla. 2d DCA June 12, 2014), or
LEXIS: Minakan v. Husted, No. 4D09-4439, 2010 Fla. App. LEXIS
288 (Fla. 4th DCA Jan. 20, 2010), may also be provided.
(c) Florida Circuit Courts and County Courts.
(1) Circuit Court: State v. Ruoff, 17 Fla. L. Weekly
Supp. 619 (Fla. 17th Cir. Ct. Feb. 13, 2010)
(2) County Court: Gables Ins. Recovery v. Progressive
Am. Ins. Co., 22 Fla. L. Weekly Supp. 637 (Miami-Dade Cty. Ct. Oct.
8, 2014).
(3) For cases not published in Florida Law Weekly
Supplement, cite to Florida Supplement or Florida Supplement
Second: Whidden v. Francis, 27 Fla. Supp. 80 (Fla. 11th Cir. Ct.
1966). If not therein, cite to Florida Law Weekly: State v. Cahill, 16
Fla. L. Weekly C41 (Fla. 19th Cir. Ct. Mar. 5, 1991). If not therein,
cite to the slip opinion: Jones v. City of Ocoee, No. CVAI-93-18 (Fla.
9th Cir. Ct. Dec. 9, 1996). With a slip opinion cite, citations to
Westlaw: Berne v. State, No. 2006-CA-9772-O, 2009 WL 8626616
(Fla. 9th Cir. Ct. Oct. 26, 2009), or LEXIS: Alberti v. Gangell, No. 51-
2008-CA-0198-WS/H, 2014 Fla. Cir. LEXIS 55 (Fla. 6th Cir. Ct.
Apr. 16, 2014), may also be provided.
(d) Florida Administrative Agencies.
(1) For agency final orders: Dep’t of Health v.
Migicovsky, No. 2011-16915 (Fla. Bd. of Med. Dec. 17, 2012) (Final
Order No. DOH-12-2692-FOF-MQA).
(2) For decisions of the Division of Administrative
Hearings: Dep’t of Fin. Servs., Div. of Ins. Agent & Agency Servs. v.
Pearson, No. 13-4478PL (Fla. DOAH Oct. 15, 2014) (Recommended
Order).
(3) To cite a case’s subsequent history at the agency
and in the courts: Dep’t of Health v. Sabates, No. 10-9430PL (Fla.
DOAH June 23, 2011) (Recommended Order), adopted with reduced
penalty, No. 2009-06686 (Fla. Bd. of Med. Aug. 29, 2011) (Final
Order No. DOH-11-2101-FOF-MQA), aff’d in part and rev’d in part,
104 So. 3d 1227 (Fla. 4th DCA 2012).
(4) Decisions that are not available online may be cited
to an administrative law reporter as follows if published therein:
(A) Florida Administrative Law Reports: Dep’t of
Health v. Sabates, 34 F.A.L.R. 2378 (Fla. Bd. of Med. 2011);
(B) Florida Career Service Reporter: Arenas v. Dep’t
of Corr., 25 F.C.S.R. 309 (Fla. Pub. Emp. Rel. Comm’n 2010);
(C) Environmental and Land Use Administrative
Law Reporter: In re Riverview Pointe, Manatee Cty., 2013 E.R.
F.A.L.R. 50 at 2 (Fla. Dep’t of Envtl. Prot. 2012);
(D) Florida Department of Revenue Tax Reporter:
Technical Ass’t Advm’t 09A-049, 2009 Tax F.A.L.R. 431 (Fla. Dep’t
of Rev. 2009);
(E) Florida Public Employee Reporter: Delgado v.
Sch. Dist. of Broward Cty., 36 F.P.E.R. 207 (Fla. Pub. Emp. Rel.
Comm’n Gen. Counsel 2010);
(F) Florida Public Service Commission Reporter: In
re Nuclear Cost Recovery Clause, 2013 F.P.S.C. 10:149 (Fla. Pub.
Serv. Comm’n 2013);
(G) Florida Compensation Reports: Whitney v.
Mercy Hosp., 9 F.C.R. 373 (Fla. Indus. Rel. Comm’n 1976);
(H) Florida Division of Administrative Hearings
Reports: Fla. Real Estate Comm’n v. Warrington, 39 F.D.O.A.H. 747
(Fla. Real Estate Comm’n 1977);
(I) Florida Administrative Reporter: Cockrell v.
Comptroller, 12 F.A.R. 192 (Fla. Comptroller 1979).
(e) Florida Constitution. When citing a provision that has
been repealed, superseded, or amended, provide the year of
adoption of the provision or the version thereof being cited.
(1) Current Provision: Art. V, § 3(b)(3), Fla. Const.
(2) Historical provision: Art. V, § 3(b)(3), Fla. Const.
(1972).
(f) Florida Statutes.
(1) § 48.031, Fla. Stat. (2014).
(2) § 120.54, Fla. Stat. (Supp. 1998).
(g) Florida Statutes Annotated. When citing material other
than a section of Florida Statutes, provide page numbers.
(1) 7 Fla. Stat. Ann. § 95.11 (2017).
(2) 30 Fla. Stat. Ann. 69-70 (2004).
(h) Florida Administrative Code. When citing an
administrative rule that has been repealed, superseded, or
amended, provide the year of adoption of the provision or the
version thereof being cited.
(1) Fla. Admin. Code R. 62D-2.014.
(2) Fla. Admin. Code R. 62D-2.014 (2003).
(i) Florida Laws.
(1) After 1956: Ch. 74-177, § 5, Laws of Fla.
(2) Before 1957: Ch. 22000, Laws of Fla. (1943).
(j) Florida Rules. When citing a rule that has been
repealed, superseded, or amended, provide the year of adoption of
the rule or the version thereof being cited.
(1) Florida Rules of Civil Procedure: Fla. R. Civ. P.
1.180.
(2) Florida Rules of Civil Procedure for Involuntary
Commitment of Sexually Violent Predators: Fla. R. Civ. P.–S.V.P.
4.010.
(3) Florida Rules of General Practice and Judicial
Administration: Fla. R. Gen. Prac. & Jud. Admin. 2.110.
(4) Florida Rules of Criminal Procedure: Fla. R. Crim. P.
3.850.
(5) Florida Probate Rules: Fla. Prob. R. 5.120.
(6) Florida Rules of Traffic Court: Fla. R. Traf. Ct.
6.165.
(7) Florida Small Claims Rules: Fla. Sm. Cl. R. 7.070.
(8) Florida Rules of Juvenile Procedure: Fla. R. Juv. P.
8.070.
(9) Florida Rules of Appellate Procedure: Fla. R. App. P.
9.100.
(10) Florida Rules for Certified and Court-Appointed
Mediators: Fla. R. Med. 10.100.
(11) Florida Rules for Court-Appointed Arbitrators: Fla.
R. Arb. 11.010.
(12) Florida Family Law Rules of Procedure: Fla. Fam. L.
R. P. 12.010.
(13) Rules Regulating the Florida Bar: R. Regulating Fla.
Bar 4-1.10.
(14) Code of Judicial Conduct: Fla. Code Jud. Conduct,
Canon 4B.
(15) Florida Bar Foundation Bylaws: Fla. Bar Found.
Bylaws, art. 2.19(b).
(16) Florida Bar Foundation Charter: Fla. Bar Found.
Charter, art. III, § 3.4.
(17) Integration Rule of the Florida Bar: Fla. Bar Integr.
R., art. XI, §11.09 (1981).
(18) Florida Judicial Qualifications Commission Rules:
Fla. Jud. Qual. Comm’n R. 9.
(19) Florida Standard Jury Instructions, Civil: Fla. Std.
Jury Instr. (Civ.) 601.4.
(20) Florida Standard Jury Instructions, Contract and
Business: Fla. Std. Jury Instr. (Cont. & Bus.) 416.12.
(21) Florida Standard Jury Instructions, Criminal: Fla.
Std. Jury Instr. (Crim.) 3.7.
(22) Florida Standards for Imposing Lawyer Sanctions:
Fla. Stds. Imposing Law. Sancs. 9.32(a).
(23) Rules of the Supreme Court Relating to Admissions
to the Bar: Fla. Bar Admiss. R. 3-23.1.
(k) Florida Attorney General Opinions.
Op. Att’y Gen. Fla. 73-178 (1973).
(l) United States Supreme Court.
(1) Sansone v. United States, 380 U.S. 343 (1965).
(2) Cite to United States Reports, if published therein;
otherwise cite to Supreme Court Reporter. For cases not published in
these reporters, cite to Florida Law Weekly Federal: California v.
Hodari D., 13 Fla. L. Weekly Fed. S249 (U.S. Apr. 23, 1991). If not
therein, cite to the slip opinion: Upper Skagit Indian Tribe v.
Lundgren, No. 17-387 (U.S. May 21, 2018). With a slip opinion cite,
citations to Westlaw: Upper Skagit Indian Tribe v. Lundgren, No. 17-
387, 2018 WL 2292445 (U.S. May 21, 2018), or LEXIS: Upper Skagit
Indian Tribe v. Lundgren, No. 17-387, 2018 U.S. LEXIS 3085 (U.S.
May 21, 2018), may also be provided.
(m) Federal Courts of Appeals.
(1) Gulf Oil Corp. v. Bivins, 276 F.2d 753 (5th Cir.
1960).
(2) For cases not published in Federal Reporter, cite to
Florida Law Weekly Federal: Cunningham v. Zant, 13 Fla. L. Weekly
Fed. C591 (11th Cir. Mar. 27, 1991). If not therein, cite to Federal
Appendix: Evans v. McDonald, 313 F. App’x 256 (11th Cir. 2009). If
not therein, cite to the slip opinion: Airtran Airways, Inc. v. Elem,
No. 13-14912 (11th Cir. Sept. 23, 2014). With a slip opinion cite,
citations to Westlaw: Murphy v. Dulay, No. 13-14637, 2014 WL
5072710 (11th Cir. Oct. 10, 2014), or LEXIS: Murphy v. Dulay, No.
13-14637, 2014 U.S. App. LEXIS 19311 (11th Cir. Oct. 10, 2014),
may also be provided.
(n) Federal District Courts.
(1) Pugh v. Rainwater, 332 F. Supp. 1107 (S.D. Fla.
1971).
(2) For cases not published in the Federal Supplement,
cite to Florida Law Weekly Federal: Wasko v. Dugger, 13 Fla. L.
Weekly Fed. D183 (S.D. Fla. Apr. 2, 1991). If not therein, cite to the
slip opinion: Slay v. Hess, No. 5:14-cv-264 (N.D. Fla. Oct. 10, 2014).
With a slip opinion cite, citations to Westlaw: Taylor v. Bradshaw,
No. 11-80911-CIV, 2014 WL 5325291 (S.D. Fla. Oct. 7, 2014), or
LEXIS: Taylor v. Bradshaw, No. 11-80911-CIV, 2014 U.S. Dist.
LEXIS 148468 (S.D. Fla. Oct. 7, 2014), may also be provided.
(o) United States Constitution.
(1) Art. IV, § 2, cl. 2, U.S. Const.
(2) Amend. V, U.S. Const.
(p) Other Citations. For all other citations, use the form
prescribed by the latest edition of The Bluebook: A Uniform System
of Citation, The Harvard Law Review Association, Gannett House,
Cambridge, MA 02138. For citations not covered in this rule or in
The Bluebook, use the form prescribed by the latest edition of the
Florida Style Manual (available online) published by the Florida
State University Law Review, Tallahassee, FL 32306.
(q) Case Names. Underscore or italicize case names in text
and in footnotes.
Committee Notes
1977 Adoption. This rule is new and is included to
standardize appellate practice and ease the burdens on the courts.
It is the duty of each litigant and counsel to assist the judicial
system by use of these standard forms of citation. Use of these
citation forms, however, has not been made mandatory.
1992 Amendment. Rule 9.800 was updated to reflect changes
in the available reporters. Additionally, the citations to new rules
have been added and citations to rules no longer in use have been
deleted.
2011 Amendment. Subdivision (d)(3) was revised and
subdivisions (d)(4) and (d)(5) were added to reflect changes in how
agencies are publishing their decisions. Section 120.53(2)(a),
Florida Statutes, was revised in 2008 to allow agencies to
electronically transmit their decisions to the Division of
Administrative Hearings for posting on the Division’s website in lieu
of publishing them in an official reporter. Additionally,
recommended and final orders in cases heard by the Division are
available on the Division’s website, www.doah.state.fl.us. See §
120.57(1)(m), Fla. Stat. Final orders in cases not heard by the
Division or electronically submitted to the Division by an agency for
posting on the Division’s website or published in a reporter should
be available from the agency that issues the order.
RULE 9.900 cases. FORMS
(a) Notice of Appeal.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Defendant/Appellant, )
)
v. ) NOTICE OF APPEAL
)
,)
Plaintiff/Appellee. )
)
NOTICE IS GIVEN that , Defendant/Appellant, appeals to the
.....(name of court that has appellate jurisdiction)....., the order of this court
rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders
designated in the notice of appeal must be attached in accordance with rules
9.110(d), and 9.160(c).] The nature of the order is a final order .....(state nature
of the order)...... [If a motion postponing rendition is pending in the lower
tribunal, state the nature of the motion and the date it was filed.]
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(b) Notice of Cross-Appeal.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Defendant/Appellant/ )
Cross-Appellee, )
)
v. ) NOTICE OF CROSS-APPEAL
)
,)
Plaintiff/Appellee/ )
Cross-Appellant. )
)
NOTICE IS GIVEN that , Plaintiff/Cross-Appellant, appeals to
the .....(name of court that has appellate jurisdiction)....., the order of this court
rendered [see rule 9.020(h)] .....(date)...... The nature of the order is a final
order .....(state nature of the order)......
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(c) Notice of Appeal of Nonfinal Order.
(1) Notice of Appeal of Nonfinal Order.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Defendant/Appellant, )
)
v. ) NOTICE OF APPEAL OF A
) NONFINAL ORDER
,)
Plaintiff/Appellee. )
)
)
NOTICE IS GIVEN that , Defendant/Appellant, appeals to
the .....(name of court that has appellate jurisdiction)....., the order of this court
rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders
designated in the notice of appeal must be attached in accordance with rules
9.110(d), 9.130(c), and 9.160(c).] The nature of the order is a nonfinal order
.....(state nature of the order)......
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(2) Notice of Cross-Appeal of Nonfinal Order.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Defendant/Appellant/ )
Cross-Appellee, )
)
v. ) NOTICE OF CROSS-APPEAL OF A
) NONFINAL ORDER
,)
Plaintiff/Appellee/ )
Cross-Appellant. )
)
NOTICE IS GIVEN that , Plaintiff/Cross-Appellant, appeals
to the .....(name of court that has appellate jurisdiction)....., the order of this
court rendered [see rule 9.020(h)] .....(date)...... The nature of the order is a
nonfinal order .....(state nature of the order)......
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(d) Notice to Invoke Discretionary Jurisdiction of Supreme Court.
IN THE DISTRICT COURT OF
APPEAL OF FLORIDA,
DISTRICT
Case No.
,)
Defendant/Petitioner, )
)
v. ) NOTICE TO INVOKE
) DISCRETIONARY JURISDICTION
,)
Plaintiff/Respondent. )
)
)
NOTICE IS GIVEN that , Defendant/Petitioner, invokes the
discretionary jurisdiction of the supreme court to review the decision of this
court rendered [see rule 9.020(i)] .....(date)...... The decision .....(state why the
decision is within the supreme court’s jurisdiction)......1
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. . The choices are:
a. expressly declares valid a state statute.
b. expressly construes a provision of the state or federal constitution.
c. expressly affects a class of constitutional or state officers.
d. expressly and directly conflicts with a decision of another district court
of appeal or of the supreme court on the same question of law.
e. passes on a question certified to be of great public importance.
f. is certified to be in direct conflict with decisions of other district courts
of appeal.
See rule 9.030(a)(2)(A).
(e) Notice of Administrative Appeal.
IN THE .....(NAME OF AGENCY,
OFFICER, BOARD, COMMISSION,
OR BODY WHOSE ORDER IS TO BE
REVIEWED).....
Case No.
,)
Defendant*/Appellant, )
)
v. ) NOTICE OF ADMINISTRATIVE
) APPEAL
,)
Plaintiff*/Appellee. )
)
)
NOTICE IS GIVEN that , Appellant, appeals to the .....(name
of court that has appellate jurisdiction)....., the order of this .....(name of
agency, officer, board, commission, or body whose order is to be reviewed).....
rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders
designated in the notice of appeal must be attached in accordance with rules
9.110(d) and 9.130(c).] The nature of the order is .....(state nature of the
order)......
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
*or other appropriate designation.
(f) Notice of Appeal of an Order Dismissing a Petition for a
Judicial Waiver of Parental Notice and Consent or Consent Only to
Termination of Pregnancy and Advisory Notice to Minor.
IN THE CIRCUIT COURT FOR THE
JUDICIAL CIRCUIT
(NUMERICAL DESIGNATION OF
THE CIRCUIT) IN AND FOR
COUNTY, FLORIDA
Case No.
In re: Petition for a Judicial )
Waiver of Parental Notice and )
Consent or Consent Only to )
Termination of Pregnancy. )
) NOTICE OF APPEAL
)
(Your pseudonym or initials) )
)
Appellant. )
)
NOTICE IS GIVEN that .....(your pseudonym or initials)....., appeals to
the .....(District Court of Appeal with appellate jurisdiction)....., the order of this
court rendered .....(enter the date that the order was filed on the clerk of the
lower tribunal’s docket)..... [See rule 9.020(h)]. The nature of the order is a final
order dismissing a petition for a judicial waiver of parental notice and consent
or consent only to termination of pregnancy.
Signature:
(As signed on your petition for
judicial waiver if you are
representing yourself)
Date:
OR
Attorney for
(pseudonym or initials of appellant)
(address, e-mail address, and phone
number of attorney)
Florida Bar No.
ADVISORY NOTICE TO THE MINOR
YOU ARE NOTIFIED AS FOLLOWS:
1. You are entitled to appeal the order dismissing your petition for a
judicial waiver of parental notice and consent or consent only to termination of
pregnancy. You do not have to pay a filing fee for the appeal.
2. If you wish to appeal, you must file a notice of appeal with the
circuit court in which your case was heard. A form for the notice of appeal (Fla.
R. App. P. 9.900(f)) will be provided to you with the order dismissing your
petition. You must fill in every blank on the form with the information
requested. If you need assistance with the form, the clerk of the circuit court
will help you complete it.
3. You must file the notice of appeal with the clerk of the circuit court
where your case was heard. The notice of appeal must be filed within 30 days
of the date when the judge’s written order dismissing your petition was filed
with the clerk of the circuit court. If you do not file your notice of appeal within
this time period your appeal will not be heard.
4. The notice of appeal is the only document you need to file in
connection with your appeal. You may file a motion to seek permission to file a
brief in your case, or to request oral argument of your case. These motions or
any other motions or documents you file concerning your appeal, except the
notice of appeal, must be mailed or delivered to the appellate court for filing, or
electronically filed with the appellate court. The appellate court that will be
reviewing your case is:
The District Court of Appeal
(address of the District Court)
Telephone number:
(Note: The clerk of the circuit court will fill in the blanks above with the
appropriate court information).
5. You may request a lawyer to represent you in your appeal. You
must tell the judge who heard your petition for a judicial waiver of parental
notice and consent or consent only to termination of pregnancy that you wish
to have a lawyer appointed.
(g) Directions to Clerk of the Lower Tribunal.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Plaintiff/Appellant, )
)
v. ) DIRECTIONS TO CLERK
)
,)
Defendant/Appellee. )
)
)
Plaintiff/Appellant, , directs the clerk to
.....(include/exclude)..... the following items .....(in/from)..... the record
described in rule 9.200(a)(1):
ITEM DATE FILED
1.
[List of Desired Items]
2.
Note: This form is necessary only if a party does not wish to rely on the
record that will be automatically prepared by the clerk of the lower tribunal
under rule 9.200(a)(1).
(h) Designation to Approved Court Reporter, Civil Court Reporter,
or Approved Transcriptionist.
IN THE .....(NAME OF THE LOWER
TRIBUNAL WHOSE ORDER IS TO
BE REVIEWED).....
Case No.
,)
Plaintiff/Appellant, ) DESIGNATION TO APPROVED
) COURT REPORTER, CIVIL COURT
v. ) REPORTER, OR APPROVED
) TRANSCRIPTIONIST, AND
,) REPORTER’S OR APPROVED
Defendant/Appellee. ) TRANSCRIPTIONIST’S
) ACKNOWLEDGEMENT
)
I. DESIGNATION
Plaintiff/Appellant, , files this Designation to Approved
Court Reporter, Civil Court Reporter, or Approved Transcriptionist and directs
.....(name of approved court reporter, civil court reporter, or approved
transcriptionist)..... to transcribe the following portions of the trial proceedings
to be used in this appeal [for cases where a party is exempt from service by
electronic mail as set forth in the Florida Rules of General Practice and Judicial
Administration, state the following, and provide paper copies of the
transcript(s) in paper format]:
1. The entire trial proceedings recorded by the reporter on
.....(date)....., before the Honorable .....(judge)....., except
. [Indicate all other portions of reported proceedings.]
3. The approved court reporter, civil court reporter, or approved
transcriptionist is directed to file the original with the clerk of the lower
tribunal and to serve 1 copy on each of the following:
1.
2.
3.
I, counsel for appellant, certify that I have made satisfactory financial
arrangements with the approved court reporter, civil court reporter, or
approved transcriptionist for preparation of the transcript, and I have served a
designation on the approved court reporter, civil court reporter, or approved
transcriptionist.
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
II. APPROVED COURT REPORTER’S, CIVIL COURT REPORTER’S, OR
APPROVED TRANSCRIPTIONIST’S ACKNOWLEDGMENT
1. The foregoing designation was served on .....(date)....., and received
on .....(date)......
2. Satisfactory arrangements have ( ) have not ( ) been made for
payment of the transcript cost. These financial arrangements were completed
on .....(date)......
3. Number of trial or hearing days ____.
4. Estimated number of transcript pages ____.
5a. The transcript will be available within 30 days of service of the
foregoing designation and will be filed on or before .....(date)......
OR
5b. For the following reason(s) the approved court reporter, civil court
reporter, or approved transcriptionist requests an extension of time of ____
days for preparation of the transcript that will be filed on or before
.....(date)......
6. Completion and filing of this acknowledgment by the approved
court reporter, civil court reporter, or approved transcriptionist constitutes
submission to the jurisdiction of the court for all purposes in connection with
these appellate proceedings.
7. The undersigned approved court reporter, civil court reporter, or
approved transcriptionist certifies that the foregoing is true and correct and
that a copy has been furnished by mail ( ) hand delivery ( ) e-mail ( ) on
.....(date)....., to each of the parties or their counsel.
Approved Court Reporter, Civil
Court Reporter, or Approved
Transcriptionist
.....(address).....
Note: The foregoing approved court reporter’s, civil court reporter’s, or approved
transcriptionist’s acknowledgment to be placed “at the foot of” or attached to a
copy of the designation, must be properly completed, signed by the approved
court reporter, and filed with the clerk of the appellate court within 5 days of
service of the designation on the approved court reporter, civil court reporter,
or approved transcriptionist. A copy must be served on all parties or their
counsel, who will have 5 days to object to any requested extension of time. See
Fla. R. App. P. 9.200(b)(1), (b)(2), (b)(3), & (b)(4).
(i) Civil Supersedeas Bond.
…..(Title of Court)…..
Case No.
,)
Plaintiff, )
)
v. ) CIVIL SUPERSEDEAS BOND
)
,)
Defendant. )
)
We, _________________________ as Principal, and ____________________ as
Surety, are held and firmly bound unto ____________________ in the principal
sum of $_____, for the payment of which we bind ourselves, our heirs, personal
representatives, successors, and assigns, jointly and severally.
The condition of this obligation is: the above-named Principal has
entered an appeal to the .....(court)..... to review the .....(judgment or order).....
entered in the above case on .....(date)....., and filed in the records of said court
in book _____ at page_____.
NOW THEREFORE, if the Principal satisfies any money judgment
contained in the judgment in full, including, if allowed by law, costs, interest,
and attorneys’ fees, and damages for delay in the event said appeal is
dismissed or said judgment is affirmed, then this obligation will be null and
void; otherwise to remain in full force and effect.
Signed on .....(date)....., at .....(place).....
/s/
Principal
Signed on .....(date)....., at .....(place).....
/s/
Surety
(j) Notice of Supplemental Authority.
…..(Title of Court)…..
Case No.
,)
Appellant/Petitioner, )
)
v. ) NOTICE OF SUPPLEMENTAL
) AUTHORITY
,)
Appellee/Respondent. )
)
[Appellant/Petitioner] [Appellee/Respondent], _________________, submits
as supplemental authority the [decision/rule/statute/other authority] of
______________________, a copy of which is attached to this notice. The
supplemental authority is pertinent to the issue on appeal identified as
______________ and [discussed on pages ____________ of the ____________ brief]
[raised at oral argument].
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(k) Notice of Related Case.
…..(Title of Court)…..
Case No.
,)
Appellant/Petitioner, )
)
v. ) NOTICE OF RELATED
) CASE OR ISSUE
,)
Appellee/Respondent. )
)
)
NOTICE IS GIVEN of .....(case style and number)....., pending in
.....(name of court)....., which is related to this matter because .....(identify the
same facts from which both matters arise or the similar legal issue being
addressed in both matters)......
Attorney for …..(name of party)…..
…..(address, e-mail address, and
phone number)…..
Florida Bar No. ………...........
(l) Notice of Joinder.
…..(Title of Court)…..
Case No.
,)
Appellant/Petitioner, )
)
v. ) NOTICE OF JOINDER
)
,)
Appellee/Respondent. )
)
)
NOTICE IS GIVEN that , [appellee/respondent] elects to
realign as a(n) [appellant/petitioner] in this action, in accordance with rule
9.360(a). The proposed new caption is:
[insert proposed new caption here]
Attorney for …..(name of party)…..
…..(address, e-mail address, and
phone number)…..
Florida Bar No. ………...........
(m) Notice of Constitutional Question.
IN THE DISTRICT COURT OF
APPEAL OF FLORIDA,
DISTRICT
Case No.
,)
Appellant/Petitioner, )
)
v. ) NOTICE TO ATTORNEY GENERAL
)
,)
Appellee/Respondent. )
)
)
NOTICE IS GIVEN of compliance with Florida Rule of Appellate Procedure
9.425, with respect to the constitutional challenge brought under .....(Florida
statute or Florida Constitutional provision)......
The undersigned complied by serving the Attorney General for the State
of Florida with a copy of the pleading or motion challenging .....(Florida statute
or Florida Constitutional provision)....., by .....(e-mail) (mail) (delivery)..... on
.....(date)......
Attorney for .....(name of party).....
.....(address, e-mail address, and
phone number).....
Florida Bar No. ....................
(n) Notice of Termination of Limited Appearance.
…..(Title of Court)…..
Case No.
,)
Appellant/Petitioner, )
)
v. ) NOTICE OF TERMINATION OF
) LIMITED APPEARANCE
,)
Appellee/Respondent. )
)
)
NOTICE IS GIVEN that .....(attorney’s name)..... has completed the
particular matter or portion of the proceeding in which the attorney appeared
and now wishes to terminate the limited appearance. The client’s address is:
......(client’s address)...... The counsel’s contact information is: .....(name,
address, e-mail address, and telephone number)......
I certify that I will serve this motion on the client, counsel, and all
adverse parties.
Attorney for …..(name of party)…..
…..(address, e-mail address, and
phone number)…..
Florida Bar No. ………...........
Committee Notes
1980 Amendment. Forms 9.900(a) and (b) under the 1977
rules are modified, and additional forms are provided.
1992 Amendment. Forms 9.900(a), (c), and (e) were revised to
remind the practitioner that conformed copies of the order or orders
designated in the notice of appeal should be attached to the notice
of appeal as provided in rules 9.110(d), 9.130(c), and 9.160(c).
2020 Adoption. See rule 9.425. The form in subdivision (m) is
to be used when the Attorney General is not a named party to the
proceeding under these rules. See rule 9.420 for service
requirements.
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