RULE 9.310. 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.