RULE 9.040. 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.