§3.E.02 | CORRECTING OR MODIFYING APPELLATE DECISIONS - CLARIFICATION
Rehearing and clarification are different remedies. A motion for rehearing may be appropriate in a case in which the appellate court clearly stated its opinion, yet apparently missed a key point, while a motion for clarification may be called for in a case in which the appellate court failed to explain its decision adequately, but evidently did not overlook or misunderstand any of the controlling points.
Although the rules do not prohibit the filing of a motion for clarification when the appellate court has decided the case without an opinion, the moving party has a more difficult task in presenting the motion in this situation. The need for clarification implies that there is something about an opinion that requires further explanation. Asking the court to clarify a per curiam decision summarily affirming a case is tantamount to asking the court to write an opinion in the case.
A request for rehearing and a request for clarification may be made together in a single motion styled as a motion for rehearing or clarification. The practice of filing both motions may be advantageous if clarification of a district court decision would resolve an ambiguity about what should occur on remand or if clarification would provide a possible basis for supreme court review.
Rule 9.330(b) provides that a party may file only one motion for rehearing or clarification.144 Thus, an appellate decision is subject to only one request for clarification, whether the motion for clarification is made on its own or as a part of a motion for rehearing. However, the rule does permit the filing of both a motion for clarification and a motion for certification.145 Clarification and certification are remedies that may be pursued separately or in conjunction with each other.
If the district court’s decision conflicts with decisions of other district courts, although not expressly so, it may be a good strategy to file a motion for clarification as a preliminary step in an overall plan to seek discretionary review in the Supreme Court. If there is a conflict that was not dealt with directly in the opinion, the district court may expressly acknowledge the conflict in the opinion on clarification. The danger in this strategy, however, is that the court may attempt to distinguish the conflicting cases in the process of clarifying its decision. That would make it more difficult to obtain discretionary review in the Supreme Court.
Footnotes
144. Fla. R. App. P. 9.330(b).
145. Id. Rule 9.330(b) provides that
“[a] party shall not file more than [one] motion for rehearing or for clarification of decision and [one] motion for certification with respect to a particular decision.”
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