1. How to Begin Writing a Pro Se Brief.
Writing appellate briefs is addressed in greater detail in the Writing an Appellate Brief chapter in this handbook (Chapter 5). The following is a summary of key points for writing a pro se appellate brief when an Anders brief has been filed.First, the record on appeal from the trial court case must be read in its entirety, including all the legal documents that were filed, and the transcripts from the hearings and trial, if any. When writing the pro se brief, an appellant should not rely on mere memory of what happened in the trial court. The appellate court will only consider the documents, facts and evidence in the record on appeal. Notes taken while reading the record will assist in later citing the correct page numbers when referring to the record in the brief.
Second, decide what the issues are to be raised and argued in the brief by thinking about what occurred during the proceedings. An appellant may only raise issues that were properly preserved for appellate review by being first raised in the trial court. If trial counsel did not bring the issue up before the trial court, it can only be reviewed on appeal if it is a fundamental error. A fundamental error is an error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Because fundamental error is relatively rare, an appellant should consider issues raised by the trial attorney in a motion or an objection and which the trial court ruled against. For sentencing errors, Florida Rule of Appellate Procedure 9.140(e) requires that errors be raised in the trial court first, either by objection at sentencing or through a Florida Rule of Criminal Procedure 3.800(b) motion (which can be filed before or during the direct appeal, if necessary). Please refer to this handbook's chapter on postconviction motions (Chapter 13) for a more thorough discussion of how to raise a sentencing error in a Rule 3.800(b) motion.
Third, the appellant should consider whether the record contains all of the documents from the court file and transcripts needed to present the issues to be raised on appeal. Sometimes a hearing transcript, notice, or motion needed for the appeal will not be included in the record. If that occurs, then a party wanting to include the document may need to file a motion to supplement the record under Florida Rule of Appellate Procedure 9.200(f). The motion to supplement is discussed in more detail in the chapter on Pulling Together the Record on Appeal (Chapter 3). The motion briefly explains what court file document or transcript is missing and why it is needed. The appellate court will issue an order granting or denying the motion to supplement. If granted, the appellate court will generally allow 30 days to supplement the documents, but may allow more or less time if needed. The appellate court will send a copy of its order to the trial court clerk, who supplements the missing court documents. However, it remains the appellant’s responsibility to be sure the missing documents are supplemented within the allowed time. If the missing documents are not supplemented, that party must ask for an extension of time in the appellate court and contact the trial court clerk. If the missing document is a hearing transcript, the party must file a motion to transcribe in the trial court so that an order can be entered that directs the court reporter to transcribe the hearing.
Fourth, the appellant must do legal research to find case law and statutes that support his or her argument. The inmate law clerk can assist in doing the research in the law library, but cannot legally tell the appellant what he or she should argue on appeal. Sometimes the legal research will show that an issue that seemed unfair is not a strong one to raise. On the other hand, the legal research might show that there is an issue to raise that the appellant had not yet thought of. Research of the law is very important to any appellate brief.
Fifth, the appellant must determine the standard of review for each issue being raised on appeal. The cases will often explain which standard of review will apply to the type of error being alleged. There are many different standards of review. For example, if the trial court applied the wrong law, then the appellate court applies the “de novo” standard. Rulings on motions for judgment of acquittal are examples of issues of law that require de novo review. When the de novo standard is applied, the appellate court is not bound by what the trial court ruled and it considers the issue anew. In other instances, the trial court has discretion to make a ruling. The decisions to admit or exclude evidence are discretionary rulings. These issues will be reviewed under the “abuse of discretion” standard. To prove that the trial court abused its discretion, it must be shown that the ruling was arbitrary and that no reasonable judge would have made the same ruling.
Sixth, the appellant should make an outline of the argument section of his brief. That outline should list the issues the appellant intends to raise and the standards of review for each of those issues. The appellant should make notes about the facts that support the issues he plans to include in the brief. The appellant should make similar notes about the case law and statutes that support his argument. This outline will help organize the arguments and present it to the appellate court in a clear and concise manner when writing the brief.
2. Writing the Pro Se Brief
Statement of the Case and Facts: In filing an Anders brief, the appellate lawyer was first required to review the trial court record and refer to every legal point that might support an appeal. The Anders brief should contain a statement of the facts, so the pro se brief usually does not need to restate the same facts. Instead, the appellant should limit the statement of the facts to those that are needed to understand the issues raised in the pro se brief. For example, if the appellant believes the trial court incorrectly denied a motion to suppress evidence, the pro se brief should include facts about the motion to suppress, the hearing on the motion, and the court’s ruling.Summary of the Argument: The summary of the argument is located before the argument in the pro se brief. But it is often written last. It summarizes the argument and does not exceed five pages, although it is usually much shorter. See Fla. R. App. P. 9.210(b)(4). Once the argument is written, the pro se party should pick out the key ideas from the argument and use those key points as the summary of argument. (Or, if the summary of the argument is written first, it can be used as an outline for writing the issues in the argument section).
Argument: The pro se party should use the outline he made to organize the argument into sections for each issue. First, the pro se party should state the issue. The pro se party should then give the standard of review for that issue. Next, he or she should explain the general law that applies to that issue, citing cases and statutes that support the argument. It is not generally necessary to cite to a large number of cases that basically say the same thing, but the cases and statutes that most closely relate to the issues being raised in the specific appeal should be cited to communicate the legal basis of the appellant’s claim.
After explaining what law governs the court’s decision, the pro se appellant should identify the facts that show that a reversible error occurred. He or she should cite to the volume and page number in the record to direct the appellate court to the facts that support his case. Cases with facts similar to those involved in his appeal should be cited, to show how courts have applied the general law that the pro se appellant identified in the first part of the argument. After the pro se party explains how the facts in the case show that a legal error was made, the party then tells the appellate court what relief it should grant. For example, some mistakes require reversal and remand for a new trial, and others require reversal and dismissal or resentencing.
This same procedure should be repeated for each issue raised in the pro se brief.
Conclusion: At the end of the brief, the appellant should include one paragraph that tells the appellate court what relief or outcome the pro se appellant is asking for in the case. The relief may be different depending on whether the court reverses on one or more issues. For instance, the mistakes may require a new trial or a new sentencing hearing. Litigants often also request “whatever other relief the Court finds appropriate” or a similar broad request for relief.
Table of Contents: After the pro se party has finished writing his or her brief, each section of the brief is listed in the table of contents with the page numbers where each section begins. Each issue within the Argument section should also be listed with its beginning page number.
Table of Citations: All the cases cited in the brief are listed in alphabetical order. Then all statutes cited in the brief are listed in numerical order. If other authority is cited, such as books or articles, they are also listed. The page numbers where each authority is cited should be included next to each listing.
Certificate of Service and Certificate of Typeface Compliance: A certificate of service at the end of the pro se brief is included to show that a copy of the brief was mailed to the opposing attorney in the case. Examples of a certificate of service for pro se appellants are included in Florida Rule of Appellate Procedure 9.420(d). If the pro se brief is typed, it is typed in either Times New Roman 14-point font or Courier New 12-point font and must include a certificate saying the brief is typed in one of those fonts at the end of the brief. The fonts and other requirements for typed briefs are listed in Florida Rule of Appellate Procedure 9.210(a). If the brief is handwritten, it is not necessary to include a certificate of typeface compliance. Page Limit: The pro se brief cannot exceed fifty pages without permission from the appellate court, which is rarely granted. Fla. R. App. P. 9.210(a)(5).
