RULE 9.142. 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. The
petition must be served on the opposing party and on 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.