1. The Contents of a Petition.
Unlike an appeal, a petition for an extraordinary writ does not start by filing a notice of appeal. It starts by filing a petition. The petition is like the initial brief. It contains all of the legal arguments. Florida Rule of Appellate Procedure 9.100 states what a petition must include:(a). The basis for invoking the jurisdiction of the court.
In this part of the petition, the party should explain to the court why it has the power to grant the requested writ. The party should include the citation to the appellate rule that grants this power.(b). The facts on which the petitioner relies.
The party should set out, as clearly and briefly as it can, the facts in the record that show the party is entitled to the writ it is asking the court to grant.(c). The nature of the relief sought.
In this section, the party must tell the court what it wants the court to do. For example, a petition for writ of mandamus might ask the appellate court to order the lower tribunal to hold a hearing, or overturn an order of the lower tribunal.(d). Legal argument in support of the petition and appropriate citations of authority.
In this part of the petition, the party must state its arguments and identify the cases, statutes, rules, or constitutional provisions that support the arguments.(e). The Appendix that Must Accompany the Petition.
If a party is asking the appellate court for an order directed to a lower tribunal, it must also provide the appellate court with an appendix. The appendix must be prepared as described in Florida Rule of Appellate Procedure 9.220. It should have an index along with a copy of the lower tribunal’s order that the party wants reviewed. The index should list, in order of the date they were filed below, the documents in the appendix and the pages where they appear. The appendix can also have copies of other parts of the record and other authorities. In the case of a petition for writ, the appendix needs to be separately bound and separated from the petition. It can either be completely separate, or it can be separated by a divider or tab.When writing the statement of facts, the party should refer to the pages in the appendix that support the facts. For example, if the statement of facts includes something that a witness testified to at a hearing, the party should give the page of the transcript in the appendix where that testimony appears. A party should not hold back information that hurts its position or material that the opposing party is likely to cite. To do so may expose that party to a sanction or penalty from the appellate court.
3. Page Length and Filing.
A petition for a writ cannot be longer than 50 pages. The requirements for the margins and fonts are the same as the requirements for an appellate brief. A certificate of compliance is also required. This tells the court that the party has complied with the requirements of the appellate rules. A certificate of service is also required. This shows that the party has served a copy of the petition on all opposing parties, and also sent a copy to the trial judge.The petition is filed directly in the appellate court. If a party files the petition in the wrong court, the court has the power to transfer it to the right court, not to dismiss it. A filing fee of generally $300 is required unless the party has been determined to be indigent. The party should call the appellate court clerk’s office to confirm that court’s filing fee.
4. Responding to Petitions.
If a party receives a petition for an extraordinary writ from the opposing party, it does not need to file a response. A response is only necessary if the appellate court issues an order requiring one. Because petitions for extraordinary writs are rarely granted, the appellate court will often deny the petition without a response from the other side. Sometimes the appellate court will issue an order to respond. In other cases, the court will issue an order to show cause. An order to show cause requires the respondent to serve a response explaining why the writ should not be granted. Neither a petition nor an order to show cause automatically stops the proceedings in the lower tribunal. The only exception relates to petitions for writs of prohibition. If the court issues an order to show cause after a petition for writ of prohibition, the lower tribunal cannot take further action unless the appellate court either says it can or decides the case.5. Time Limits.
There are important time limits to remember. A petition for writ of prohibition must be filed before the lower tribunal takes the action the petitioner wants to stop.There is a 30-day time limit for filing a petition for writ of certiorari. The time runs from the date the lower tribunal’s order was rendered. The 30-day time limit may apply even if the petition being filed is called something else. For example, let’s say that a party calls its petition a petition for writ of mandamus, and does not file it until after 30 days. If the appellate court decides that it is really a petition for writ of certiorari, it will be too late for the appellate court to review the action of the lower tribunal because the petition was filed more than 30 days after the rendition of the lower tribunal’s order. The appellate court will deny an untimely petition.
Another important part to remember is that filing a motion for rehearing of a non-final order in the lower tribunal does not extend, or “toll,” the time for filing the petition. If a party wants to file a petition for a writ of certiorari asking the appellate court to review a lower tribunal’s order, and the party moves for rehearing or reconsideration in the lower tribunal, the time for filing a petition still runs from the date of the original order. It does not run from the date of rehearing. The 30-day time limit for a petition for writ of certiorari cannot be extended.
