Pro Se Handbook
Florida Bar

CHAPTER 0 | PREFACE

ITEM 0 | DISCLAIMER

PRO SE APPELLATE HANDBOOK© DISCLAIMER
CAUTION: READ THIS DISCLAIMER BEFORE PROCEEDING
THIS HANDBOOK IS NOT INTENDED TO BE A SUBSTITUTE FOR ADVICE BY AN EXPERIENCED APPELLATE LAWYER ON HOW TO HANDLE AN APPELLATE MATTER

The PRO SE APPELLATE HANDBOOK: REPRESENTING YOURSELF ON APPEAL©2007, Florida Appellate Practice Section, is prepared by individual members of The Florida Bar Appellate Practice Section as a public service. This “Pro Se” or “Self-Represented Litigant” Handbook is not a comprehensive appellate guide, and it does not answer all questions or guarantee success. It is also not intended to advise individuals in the unlicensed practice of law. It should not be cited to as authority. This Handbook is not to be used to provide legal advice to other people, nor would attorneys who are not experienced in appellate practice do well in relying on this Handbook. It is always a work in progress and is not all-inclusive. The most current version can be found at: http://www.flabarappellate.org.

This is a very basic guide to assist someone unable to hire an attorney to advance or defend an appellate matter. It is not a substitute for reading and understanding all of the Florida Rules of Appellate Procedure, which apply to all types of appeals and extraordinary writs. Nor is it a substitute for retaining an appellate attorney skilled in the law and knowledgeable in appellate practice. A PARTY TO AN APPELLATE CASE SHOULD HIRE AN ATTORNEY EDUCATED AND EXPERIENCED IN APPELLATE PRACTICE.

A pro se party must read and understand the Florida Rules of Appellate Procedure and any other Florida rules and statute that may apply. A pro se party may also do well to consult Florida Appellate Practice, published by The Florida Bar, and Florida Appellate Practice, by Philip Padovano, as well as other Florida appellate manuals for additional information on appeals and petitions.

ITEM 1 | CAUTION

CAUTION: THE DANGERS OF SELF-REPRESENTATION

“Self-Representation” or proceeding “pro se” means the party does not have a lawyer in a legal matter and is representing himself or herself, regardless of whether the self-representation is by choice or because the party cannot hire a lawyer. A pro se party should be aware of the following:

1. The appellate court is not going to give a pro se party (a party representing himself or herself) any special treatment or relax the rules simply because that party is pro se and is not a lawyer.

2. All parties and attorneys must follow the Rules of Judicial Administration and the Florida Rules of Appellate Procedure, as well as the specific appellate court's internal or “local” rules and procedures. A pro se party who has no formal legal training is just as responsible as an attorney for following all of the rules.

3. The Florida Rules of Appellate Procedure set forth the pleadings and documents that must be filed in an appeal, along with the deadlines (number of days) in which to file the pleadings or documents, such as the notice of appeal and the appellate briefs.

4. All parties must comply with filing deadlines. No party is allowed to file an appeal or brief late simply because that party is representing himself or herself and does not have any formal legal training. No party is allowed to ask for extensions of time and/or continuances of a court proceeding simply because that party is pro se.

5. The appellate court's review of a case is limited to the record on appeal made in the lower tribunal. For example, if a pleading, motion or other document was not filed in the lower tribunal before the appeal, or if a piece of evidence or an exhibit was not introduced into evidence in the lower tribunal, it cannot be argued or considered for the first time on appeal. This is because the document or evidence was not part of the record in the lower tribunal. The record on appeal is limited to the record that was made in the lower tribunal. Similarly, the appellate court usually cannot consider any argument that was not made in the lower tribunal.

6. The appellate court must follow the laws, rules, regulations, and court decisions that are controlling and factually on point. The appellate court cannot make any special exceptions for pro se parties.

7. If a lawyer represents the opposing party, the appellate court may order the pro se party to pay the opposing party's attorney's fees and costs if that party wins the appeal. In certain special cases, such as family law appeals, attorney’s fees may be awarded based on financial need without regard to who prevails.

8. If a lawyer represents the opposing party, a pro se party may have a hard time winning their case. A lawyer's legal training and knowledge may result in the opposing party winning the case through skillful use of procedural or technical requirements, or through skillful use of case law and legal argument.

9. The Rules Regulating The Florida Bar and the Florida Supreme Court forbid the “unlicensed practice of law.” That means a non-lawyer (or even a lawyer from another state or law student) cannot give legal advice or speak on behalf of anyone in court proceedings without a license to practice law in the State of Florida. In other words, a non-lawyer without a license to practice law in the State of Florida cannot give legal advice to anyone or attempt to act as another person’s lawyer, whether in written papers or in court appearances or otherwise. Both The Florida Bar and the Florida Supreme Court take the unlicensed practice of law very seriously. The Florida Bar investigates and prosecutes, and the Florida Supreme Court punishes (including a fine up to $2,500 or jail time up to five (5) months), any person found to have acted as a lawyer on behalf of another person without having a license to practice law in the State of Florida.

Before proceeding, a pro se party should contact their local bar association and/or The Florida Bar and ask whether they have or know of any "pro bono" programs that may help a pro se party obtain legal representation in an appeal without having to pay an appellate attorney. If there is no “pro bono” program in place in the area, hiring an appellate attorney may save the otherwise pro se party money in the long run.

By using The Florida Bar Appellate Practice Section Pro Se Appellate Handbook, the user agrees to indemnify and hold harmless The Florida Bar Appellate Practice Section and anyone involved in the preparation of the Pro Se Appellate Handbook.

CHAPTER I | INTRODUCTION

ITEM 1A | THE IMPORTANCE OF MEETING WITH AN APPELLATE ATTORNEY

A person who wants to appeal (the "appellant") or who must defend an appeal (the "appellee") is best protected by meeting with an attorney who knows and works in appellate law (an "appellate attorney"). If an appellate attorney is not available, this Handbook should be consulted immediately upon entry of an order that may be the subject of an appeal.

ITEM 1B | THE FINAL JUDGMENT RULE AND WHY IT IS IMPORTANT

A “final” judgment or order is a written order entered by a trial court (or “lower tribunal”) which ends the case and leaves nothing left to be done except to follow what the final judgment or order requires the parties to do. In contrast, a “non-final” order does not end the case and usually cannot be appealed right away. For example, if the trial court rules against a party on an issue or motion before trial or at trial, the party normally has to wait, and often cannot appeal, until the trial is over and the court has entered a final judgment. After that, the party normally has a right to bring an appeal to challenge the final judgment, and, in the appeal from the final judgment, the party usually can also challenge any ruling or non-final order entered before the final judgment. So, with some exceptions, appeals generally can only be brought from a final judgment. This is called the "final judgment rule." Final judgments are discussed here, as well as in Chapter 8 on the Appellate Process Concerning Final Appeals. Some of the exceptions to the final judgment rule are covered in other Chapters of this Handbook, such as Chapter 9 on Appeals from Non-Final Orders, and Chapter 10, Extraordinary Writs.

The final judgment rule is very important to an appellant because an appeal has deadlines and time limits that must be followed. For example, there is a time limit for filing an appeal, and a party who fails to file an appeal within that time limit may lose or “waive” the right to appeal. Thus, one of the important reasons to consult or retain an appellate attorney, if one is available, is to find out whether a specific order can be appealed, and, if so, whether the appeal has to be filed right away.

ITEM 1C | THE GENERAL PROCEDURES FOR AN APPEAL

An appeal is begun by filing a “notice of appeal” within the deadline required by the Florida Rules of Appellate Procedure. If this time limit is not followed, a person may not be able to appeal. The failure to timely file a notice of appeal is called "waiving” the right to an appeal. In Florida, the time limit for filing a notice of appeal from a final order or judgment generally starts to run when the lower tribunal enters or "renders" the final judgment or order ("rendition"). The appellant usually has 30 days from the date of “rendition” to file a notice of appeal. See Florida Rule of Appellate Procedure 9.110(a)&(b) (civil and final administrative law cases); Florida Rule of Appellate Procedure 9.140(b)(3) (criminal cases); see also Florida Rule of Appellate Procedure 9.020 (definitions); Florida Rule of Appellate Procedure 9.030 (jurisdiction of the courts).

The time limit for filing a notice of appeal is a “jurisdictional” deadline. This means that if the notice of appeal is not filed within the time limit, the appellate court usually will not have the power, or “jurisdiction,” to hear the appeal, and the appeal will be dismissed. The rest of the deadlines, such as the time limits for filing the briefs, are also important and should be followed, but many are not “jurisdictional.” This means the appellate court still has the power to hear the appeal, but it may decide to dismiss for a party’s failure to follow the rules and procedures for the appeal.

After filing a notice of appeal, the appellant then has 10 days to file what are called "directions to the clerk" and "designations to the court reporter." See Florida Rule of Appellate Procedure 9.200(a)-(b). The directions to the clerk are directions telling the lower tribunal clerk what the appellant wants to have included in the record on appeal. Putting together the record on appeal is discussed in detail in Chapter 3 of this Handbook.

The party opposing the appeal, the "appellee," generally has 10 days from the filing of the notice of appeal to file a "cross-appeal." A cross-appeal is filed if the appellee believes the lower tribunal made a mistake in not granting all of the relief the appellee wanted. See Florida Rule of Appellate Procedure 9.110(g) (civil and final administrative law cases); Florida Rule of Appellate Procedure 9.140(b)(4) (criminal cases). If a cross-appeal is filed, the parties are called, "appellant/cross-appellee" and "appellee/cross-appellant."

It is important to understand the difference between a notice of appeal and a notice of crossappeal. A notice of cross-appeal is only filed in cases where the appellee believes the lower tribunal made a mistake in not granting all of the relief the appellee wanted in the specific final judgment or final order being appealed. But, if the appellee believes there is another, separate final order or final judgment in the same case that was erroneous or did not grant all of the desired relief, then the appellee must file his or her own notice of appeal from that order, not a notice of cross-appeal. And, again, any notice of appeal must be filed within 30 days of the date of that final judgment or order.

Once the notice of appeal is filed, the lower tribunal clerk prepares the record on appeal and sends it to the appellate court. Fifty days after the notice of appeal is filed, the lower tribunal sends the appellate parties (the appellant and the appellee) an "index” to the record on appeal. The index to the record on appeal is a list of everything in the lower tribunal/court file, with page numbers, that the clerk of the lower tribunal will be sending to the appellate court. The record on appeal, which is discussed in more detail in Chapter 3, is made up of the documents — such as the pleadings, pre-trial motions, orders, discovery, and evidence (“exhibits”) — that were filed and made part of the “record” in the lower tribunal. It usually also has transcripts of the hearings that the lower tribunal judge held and transcripts of any trial, if the hearing or trial was “transcribed” (typed-out by a court reporter), and if one of the parties filed those transcripts with the lower tribunal. See Florida Rule of Appellate Procedure 9.200.

There are also time limits for filing appellate briefs. Appellate briefs are the written arguments of the appellant and the appellee that are presented to the appellate court. The arguments in an appellate brief must be limited to the matters contained in the appellate record. The appellant's initial brief is generally due 70 days after filing the notice of appeal. See Florida Rule of Appellate Procedure 9.110(f). The appellee’s answer brief is then due 20 days after the initial brief, and the appellant’s reply brief is due 20 days after the answer brief. See Florida Rule of Appellate Procedure 9.210(f). If the appellant needs more time to file a brief, the appellant usually may file a motion for an extension of time with the appellate court (usually for 30 or 60 days), so long as the motion for extension is filed before the deadline for the brief. Before filing a motion for an extension, the appellant is generally required to contact the opposing party to ask if the opposing party will agree or object to the motion for an extension. The motion for extension should, in addition to requesting the extension, also state whether the opposing party objects or agrees to the extension. The same general procedure for seeking extensions would also apply to the answer brief and the reply brief.

The appellate briefs are filed with the appellate court before oral argument. Oral argument is like a formal hearing before a trial judge. The main differences are that appellate oral arguments are usually heard by a “panel” of three judges and arguments are limited to those contained in the appellate briefs and supported by the appellate record—no new evidence or arguments can be made. The party seeking to present oral argument must file a "request for oral argument" in a separate document, generally not later than 10 days after the reply brief is due. See Florida Rule of Appellate Procedure 9.320. After the parties have filed their briefs, and if a request for oral argument was made, the appellate court will decide whether to grant oral argument. Appellate courts do not always grant a request for oral argument. If oral argument is not granted, the case will be decided based on the arguments in the appellate briefs, without holding an oral argument. If the appellate court grants a request for oral argument, the appellate court will send an order or notice of oral argument, which will state the date and time of the oral argument and how many minutes each side will have to argue their case.

It is important to remember that appellate courts do not take new evidence or consider new arguments. An appeal is based on what happened in the lower tribunal. Appellate courts decide whether the trial judge made mistakes or “errors” below, such as in admitting or excluding evidence. Appellate courts also generally do not consider arguments that were not made to the lower tribunal. If an argument or objection was not made to the lower tribunal (at a time when the lower tribunal could “fix” the reason for the objection), the appellate court usually will not consider the argument for the first time on appeal, unless the error was “fundamental,” meaning it usually must have destroyed the fairness of the whole case.

Litigants should also understand that there have been many changes in the appellate courts and rules over the years in Florida. These changes include limiting the number of pages allowed in appellate briefs to 50 pages for the appellant's initial brief, 50 pages for the appellee's answer brief, and 15 pages for the appellant's reply brief. See Florida Rule of Appellate Procedure 9.210. The appellate courts generally will not allow briefs that go over these page limits. Requests for an increase in the page limits can be made, but they are rarely granted. The time allowed to present any oral argument is very limited. Most appellate courts allow only a set number of minutes for oral arguments, usually 10 or 20 minutes per side. At oral argument, the parties must make their argument within the time allowed by the court.

An appellate court’s consideration of the issues and arguments raised in an appeal will be framed by what is called "the standard of review." The standard of review determines how much weight or deference the appellate court will give to, or how strictly it will question, the lower tribunal's rulings. The greater the deference, the harder it will be to convince the appellate court to find the lower tribunal's decision was a mistake. Appellate courts give great deference to a lower tribunal's findings of fact. This is because the trial judge or jury, and not the appellate court, had the best opportunity to observe the witnesses and determine, first hand, how truthful the witnesses appeared to be. Appellate courts will normally not find the lower tribunal's findings of fact to be a mistake unless the appellate courts decide the findings of fact are not supported by "competent, substantial evidence" or are "clearly erroneous."

Appellate courts also give a lot of deference to issues below that involve both law and facts, such as rulings about what evidence will or will not be allowed during trial. As to those kinds of matters, a lower tribunal has discretion, and appellate courts generally will not find such rulings to be mistaken unless an "abuse of discretion" is shown, meaning no reasonable judge would have made the same decision under the law and facts.

Finally, appellate courts review pure legal issues with the least amount of deference to the lower tribunal. This is called the "de novo" standard of review. Under this standard, appellate courts decide for themselves what the law says and what the decision of law should be. The reason so little deference is given when reviewing a pure legal issue is because appellate courts are in just as good a position to decide the law as lower tribunals.

ITEM 1D | CONCLUSION

Given the complex requirements and procedures for an appeal, it is important for an appellant to carefully consider whether to go ahead with an appeal without the help of an appellate lawyer. By hiring an experienced, qualified appellate lawyer who understands the law and rules of procedure, a party may increase their odds of winning and may save money in the long run. If the appellant cannot locate an experienced appellate lawyer, then the appellant should read this Handbook cover to cover, as well as other appellate books, as soon as the appellant gets an order that the appellant wants to appeal. In that way, the appellant has important information to decide whether the appellant can even appeal, whether the appellant must appeal right away, and, if so, the time by which the appellant must act and the procedures for doing so.

Finally, it must be remembered that the law and rules of procedure change frequently. A self-represented or “pro se” litigant is responsible for following the current laws and rules of procedure. Thus, a pro se litigant should review the most current laws and rules in addition to this Handbook, as some laws or rules may have changed. As just one example, the rules in the area of serving (sending) documents to other parties by e-mail and filing documents electronically with the court are still developing and changing, especially as to pro se litigants. Currently, service by e-mail is available for pro se parties if certain procedures and requirements are followed. See Florida Rules of Judicial Administration 2.514(b) and 2.516(b). In addition, most courts now allow (but do not require) electronic filing by pro se parties. See Florida Rule of Judicial Administration 2.525(c)-(d). The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk’s office of the particular court to find out if electronic filing is allowed, and, if so, the requirements for electronic filing and service by e-mail. See also Florida Rules of Judicial Administration 2.516 and 2.525(c)-(d).

Unless e-mail service or electronic filing is allowed, service or filing of a document must generally be done by mail or personal delivery (to the other party for service, and to the court for filing). So, in addition to consulting the most up-to-date version of the rules of procedure (available on The Florida Bar’s website at http://www.floridabar.org/tfb/TFBLegalRes.nsf/) and other laws, a pro se litigant should also consult the website or clerk’s office of the specific court to find out if electronic filing with the court and/or service of documents to other parties by e-mail may be allowed, and to find out if the court may have additional requirements specific to that court.

CHAPTER II | ATTORNEY’S FEES

ITEM 2A | IS A PRO SE LITIGANT ENTITLED TO ATTORNEY’S FEES ON APPEAL?

The short answer is no. A pro se litigant, meaning a party who is not an attorney and who is representing himself or herself, is not entitled to attorney’s fees for his or her own time spent appealing a case. In contrast, a party represented by an attorney may be able to seek attorney’s fees on appeal if there is a basis for awarding such fees. This means a pro se litigant may be responsible for the opposing party’s appellate attorney’s fees.

ITEM 2B | CAN A PRO SE LITIGANT BE RESPONSIBLE FOR THE OPPOSING PARTY’S ATTORNEY’S FEES?

Yes. A pro se litigant may be responsible or “liable” on appeal for the opposing party’s attorney’s fees, if the opposing party is represented by an attorney (or is an attorney). For the opposing party to seek attorney’s fees in an appeal, there has to be a basis for awarding such fees in a statute and/or in a contract between the parties. Also, a party usually has to win, or “prevail,” in the appeal before he or she will be entitled to an award of appellate attorney’s fees. One exception is in family law cases, where, in some cases, appellate attorney’s fees may be awarded based on the parties’ relative financial need and ability to pay. See Section 61.16, Florida Statutes.

If there is a basis in a statute or a contract for awarding attorney’s fees in the lower tribunal, that same statute or contract usually can also be a basis for an award of appellate attorney’s fees. See Section 59.46, Florida Statutes. In the case of Dade County v. Pena, 664 So. 2d 959 (Fla. 1995), the court explained: “In the absence of an expressed contrary intent, any provision of a statute or of a contract . . . providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.”

Just a few examples of some Florida Statutes that provide for an award of attorney’s fees include:

1. Section 57.105(1), Florida Statutes (regarding attorney’s fees to prevailing party for an opposing party’s frivolous claims or defenses which had no basis in law or fact);

2. Section 61.16, Florida Statutes (regarding attorney’s fees based on relative financial need in family law matters);

3. Section 78.20, Florida Statutes (regarding attorney’s fees to prevailing defendant in a replevin action);

4. Section 83.49(3)(c), Florida Statutes (regarding attorney’s fees to prevailing party in residential landlord-tenant dispute over security deposit);

5. Sections 120.69(7) and 120.595, Florida Statutes (regarding attorney’s fees to prevailing party in some circumstances in certain administrative law cases);

6. Section 448.08, Florida Statutes (regarding attorney’s fees to prevailing party in an employee's action for lost wages).

To seek an award of attorney’s fees for an appeal, the party’s attorney would file a motion for attorney’s fees in the appellate court in accordance with Florida Rule of Appellate Procedure 9.400(b). Generally, a motion for attorney’s fees in an appeal has to be filed no later than the time for service of the reply brief, or in original proceedings, the time for service of the petitioner’s reply to the response to the petition. The motion is required to state the legal basis for seeking attorney’s fees (i.e., a basis in a statute and/or contract).

ITEM 2C | WHO IS ENTITLED TO OR RESPONSIBLE FOR COURT COSTS ON APPEAL?

The party who prevails in an appeal, including a pro se litigant, is entitled to seek an award of court costs. Thus, a pro se litigant may be entitled to court costs if he or she prevails in the appeal. But if the pro se litigant does not prevail, he or she will likely be responsible to pay the opposing party’s court costs.

It is important to understand that court costs are different from attorney’s fees, and different rules apply to costs. Costs include things like filing fees and the cost of the transcript or appellate record. More specifically, Florida Rule of Appellate Procedure 9.400(a) provides that the party who prevails in the appeal is entitled to recover certain costs incurred in the appeal, including: costs for filing and for service of process, charges for the lower tribunal clerk’s preparation of the record, any necessary hearing or trial transcripts, bond premiums, and other costs that the law permits.

ITEM 2D | HOW ARE COSTS INCURRED ON APPEAL RECOVERED?

A motion for appellate court costs is filed in the lower tribunal. To recover costs incurred on appeal, the prevailing party should file a motion for costs in the lower tribunal no later than 45 days after rendition of the appellate court’s order or decision in the case. If the motion is not filed within this deadline, the right to seek costs will be lost. See Florida Rule of Appellate Procedure Rule 9.400(a).

In contrast, a motion for attorney’s fees is filed in the appellate court. Then, if the appellate court awards attorney’s fees, the party entitled to the fees generally has to file a motion in the trial court to determine the amount of the fees. Unlike with appellate costs, there is no set deadline in the rules for filing a motion to determine the amount of attorney’s fees in the trial court after the appellate court awards entitlement to fees. But such a motion should probably still be filed within the same amount of time as a costs motion (i.e., within 45 days of the appellate court’s decision).

CHAPTER III | RECORD

ITEM 3A | OVERVIEW OF THE RECORD ON APPEAL

An appeal is decided based solely on the documents, evidence, arguments and proceedings that occurred in the lower tribunal. In general, the “record on appeal” or “appellate record” is a collection of the documents, pleadings, motions, evidence, and hearing or trial transcripts that were filed in the lower tribunal or trial court. The appellate court reviews the appellate record, i.e., the record of what happened in the trial court, in order to review whether the decision reached by the lower tribunal or trial court was correct or incorrect. Throughout this chapter, "lower tribunal" means the lower court, agency, or division that originally decided the case, through a trial or other proceeding. When the lower tribunal is a court, it is often called the trial court.

Most of the information an appellate party needs to know about the contents, timing, and requirements for the record on appeal can be found in Florida Rules of Appellate Procedure 9.200 (the record), 9.140 (criminal appeals), 9.141 (postconviction appeals), 9.180 (workers’ compensation), and 9.900 (appellate forms). This chapter provides a general overview of these rules. It first addresses rule 9.200 and the appellate record generally. It will also address some of the main differences for a few of the different types of cases and appeals. An appellate party should remember that this chapter simply provides an overview of general requirements. Because there are important differences between the specific rules of procedure that apply to different types of cases and appeals (like civil, criminal, postconviction, workers' compensation, administrative, etc.), appellate parties must carefully study the specific rules of procedure that apply to the type case and type of appeal they are filing.

The record on appeal generally includes all of the pleadings, motions, documents, and exhibits that were filed in the lower tribunal or trial court. Fla. R. App. P. 9.200(a)(1). It also includes copies of the orders entered by the lower tribunal and transcripts of any hearings or trials. The record gives the appellate court a history of the case, and it is limited to what was actually filed in and considered by the lower tribunal. Parties cannot add new evidence or documents that were not filed with the lower tribunal prior to entry of the order being appealed.

Depositions and other discovery are only included in the record on appeal if a party filed them in the trial court before the order being appealed was entered. Physical evidence, meaning the actual object(s) entered into evidence (for example, a gun), is typically not included in the record on appeal at all. There are also some types of routine documents that usually will not be included in the record because they usually will not be relevant to the appeal. Such documents include as summonses, praecipes, subpoenas, returns of service, and notices of hearing or depositions. A summons is a document served on defendants which notifies them of the lawsuit and what initial actions they need to take to defend against it. A return of service is the proof that the summons was properly served on the defendant. A praecipe is somewhat like a summons, but it tells the defendant to do something or to show why he or she has not done it. These types of documents will not be automatically included in the record. If these items are relevant in the specific appeal, a party will need to ask the clerk to include them in the record. Fla. R. App. P. 9.200(a)(1). For example, an appellant would want to ask the clerk to include the summons and any return of service documents in the appellate record if he or she wanted to argue on appeal that the judgment is invalid because the original service of the summons and lawsuit papers was invalid such that he or she did not receive proper notice of the lawsuit.

An appellate court cannot review what happened in the lower tribunal without a record. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). An appellate court generally presumes that the lower tribunal’s decision is correct (the "presumption of correctness"), unless the person who filed the appeal can clearly show that the lower tribunal made some type of harmful error or mistake or that the rule or law in question is illegal or unconstitutional. Without a complete record, the appellate court is limited to correcting errors that are apparent on the face of the order on appeal. See, e.g., Chirino v. Chirino, 710 So. 2d 696 (Fla. 2d DCA 1998). The party who filed the appeal and who is asking the appellate court to reverse, remand, or correct the lower tribunal's decision, is the party responsible for making sure the appellate court has everything it needs to review the lower tribunal’s decision based on what happened below. Fla. R. App. P. 9.200(e).

ITEM 3B | GETTING THE RECORD ON APPEAL TO THE APPELLATE COURT

1. The Record in Nonfinal Appeals and Original Proceedings

There is an important distinction between "final" appeals, "nonfinal" appeals, and original proceedings when assembling the appellate record. See Fla. R. App. P. 9.110 (final appeals), 9.130 (nonfinal appeals), and 9.100 (original proceedings). The difference between final and nonfinal appeals and original proceedings is discussed in greater detail in Chapters 1, 8, 9, and 10 of this Handbook. In nonfinal appeals and original proceedings the parties submit record documents to the appellate court directly, not through the lower tribunal clerk, by filing an appendix with the initial or answer brief (nonfinal appeals) or the petition and response (original proceedings). Fla. R. App. P. 9.130(e) and 9.100(g). An appendix includes any documents relevant to the issues raised in the appeal and that are necessary for the appellate court to come to a decision. Fla. R. App. P. 9.200. An appendix must include an index or table of contents that gives the title of each document and the page number of the appendix where it can be found. The appendix should be separate from the brief or petition/response. Many appellate courts prefer that the parties identify the documents individually using bookmarks if they are submitting them electronically as a PDF. While this is a requirement for attorneys submitting an appendix, it is not currently a requirement for pro se litigants.

In most cases, parties should arrange all of the documents in chronological order, from the oldest to the newest. That is, the appendix should begin with the first document filed with the lower tribunal, then continue in the order in which the remaining documents were filed, and end with the order being appealed. If a pro se party files a paper copy of the appendix with the appellate court, the appendix must be on standard 8½" x 11" paper. If any documents are on larger pieces of paper, the party compiling that appendix should reduce the documents to standard, 8½" x 11" size paper when copying them.

As in final appeals, the parties may only include in the appendix copies of documents that were filed in and considered by the lower tribunal before the order being appealed was entered. When possible, the parties should use copies of documents that include the filing date or clerk's stamp in their appendix. When including a copy of a lower tribunal order, especially the order on review, the party should obtain a signed or “conformed” copy of the order from the lower tribunal. The clerks of the circuit courts are increasingly posting filed documents on their websites, making it relatively easy for litigants to save and print out filed versions of their pleadings and court orders.

2. The Record in Final Appeals

Generally in most final appeals, and in some postconviction appeals, the appeals division of the lower tribunal clerk's office assembles the record on appeal the same way: by copying the parts of the lower tribunal's file that go into the record on appeal, numbering those pages, and placing those pages into an electronic PDF document. The clerk’s office then prepares an electronic index to the record on appeal, which includes the title of each record document and the record page number on which it can be found. With the amendments to rule 9.200 that took effect on January 5, 2016, the lower tribunal clerk is now required to paginate the record on appeal so that the PDF pages match the record page numbers, make the PDF record text searchable, and bookmark the record. Fla. R. App. P. 9.200(d). The clerk will attach the trial transcripts in a PDF file separate from the main record but matching the pagination of the index. Fla. R. App. P. 9.200(d)(2). These new requirements help make the electronic record easier for the parties and the appellate court to navigate.

The lower tribunal clerk’s office provides a copy of the record on appeal to each of the parties in most criminal cases and in nonsummary postconviction appeals. Fla. R. App. P. 9.140(f)(4) and 9.141(b)(3)(B). In civil cases, the clerk's office initially sends each party a copy of only the record index. It is then generally up to the parties to either compile their own copy of the record using the record index, or obtain an electronic copy of the record from the clerk. Fla. R. App. P. 9.110(e). The lower tribunal clerk is not required to provide a copy of the record or the index to the parties in a summary postconviction appeal. Fla. R. App. P. 9.141(b)(2)(B). After preparing the record and index, the lower tribunal clerk's office will electronically transmit both to the appellate court.

When an appellant files a notice of appeal without specific directions to the clerk, the lower tribunal clerk will automatically include only the documents required by rule in the appellate record when it transmits the record to the appellate court. Fla. R. App. P. 9.200(a)(1). This is what happens in most appeals.

ITEM 3C | ASSEMBLING THE RECORD ON APPEAL GENERALLY

1. Filing Directions to the Trial Court Clerk

To designate particular items from the lower tribunal file for the clerk to include in or exclude from the record on appeal, the appellant will need to file a document called "directions to clerk." Fla. R. App. P. 9.900(g). The directions should be filed in the court that heard the case within 10 days of the date that the notice of appeal was filed. Fla. R. App. P. 9.200(a)(2). In the directions the appellant should clearly identify which items the appellant wants to include and which items the appellant wants to exclude, if any, from the record. Rule 9.900(g) contains a sample form to use when filing directions with the lower tribunal clerk. If the appellant files directions with the clerk, the appellee, the other party to the appeal, has 20 days from the notice of appeal to file a similar document directing the clerk to include other documents and exhibits that the appellee wants in the record. Fla. R. App. P. 9.200(a)(2).

If the appellant chooses to direct the clerk to exclude items from the record or to include only particular documents instead of sending the whole record to the appellate court, the appellant will also need to file a "statement of judicial acts" in lower tribunal at the same time as the directions to the clerk. Fla. R. App. P. 9.200(a)(2). A statement of judicial acts tells the appellate court which of the lower tribunal’s actions the appellant wants the appellate court to reverse. The statement of judicial acts also allows the appellee to decide whether to add additional portions of the record.

2. Transcripts and Designations to the Court Reporter

When there has been a trial, evidentiary hearing, deposition, or other proceeding in the lower tribunal that is relevant to the order being appealed, the record should include a transcript. A transcript is a written record of a spoken court proceeding. It often contains the most important information for an appeal. Transcripts are prepared by an official court reporter or court transcriptionist, who either attended the proceeding or transcribed the proceeding from a recording.

Most criminal proceedings have a court reporter present or are audio recorded for later transcription. However, in civil cases the parties must arrange for a court reporter to be present or for a recording of the proceedings to be made. If they do not, there will not be any transcript available to include in the record on appeal. Once a court proceeding has been transcribed, either party may file it in the court file for inclusion in the record on appeal. In civil cases, the presence of a court reporter or electronic recording device at the court proceeding is not enough. The parties must request that a court reporter create an official transcript of the proceeding and then ensure that it is filed with the lower tribunal clerk before the transcript can be included in the record on appeal.

Within 10 days of filing the notice of appeal the appellant must file a designation with the court reporter or transcriptionist present at or responsible for transcribing the recording of the proceeding clearly identifying which court proceedings need to be transcribed and filed with the lower tribunal clerk. Fla. R. App. P. 9.200(b)(1). The appellee has 20 days from the date the notice of appeal was filed to designate any additional proceedings that need to be transcribed and included in the record. Fla. R. App. P. 9.200(b)(1). The designation should list the dates of all of the days of trial and any hearings that need to be transcribed. In civil cases the designation should also include the names and addresses of the other parties that should be served with a copy of the transcript. If the party filing the designation does not direct the court reporter or transcriptionist to serve a copy of the transcript on all of the parties to the appeal, that party must serve a copy of the transcripts on the other parties within 5 days of receiving the transcripts. Fla. R. App. P. 9.200(b)(3). For a sample form for serving designations on the court reporter or transcriptionist, refer to rule 9.900(h). In criminal cases, service of the transcripts on the parties is a little different. See Fla. R. App. P. 9.140(f)(2). Consult section (E) of this chapter for more information.

The court reporter has 30 days from the date of the designation to prepare the transcript. Fla R. App. P. 9.200(b)(2). After receiving the designation, the court reporter will fill out the "court reporter's acknowledgement" section with the date the designation was received and the estimated date of completion of the listed transcript. Fla. R. App. P. 9.200(b)(3). Within 5 days of receiving the designation, the court reporter will send the completed acknowledgement to the clerk of the appellate court and the parties. If the court reporter cannot prepare the requested transcript within 30 days, the court reporter may ask the appellate court, by way of a motion, for extra time. If the court reporter will need more than 30 days, another option is for the appellant to file a motion for an extension on behalf of the court reporter; such a motion should be filed well before the 30 days is over and should ask the appellate court to extend the time for the court reporter to prepare the transcript and to also “toll” or extend all other deadlines accordingly (that helps avoid a situation where the briefs are due before the record is even complete). If the court reporter and/or appellant asks for that extra time, the appellate court will then either grant or deny the court reporter’s request for extra time and issue an order telling the court reporter and the parties when the transcript is due. See Fla. R. App. P. 9.200(b)(3),(e).

Parties should remember that when they want to include transcripts of depositions or other proceedings that did not include the lower tribunal judge as a participant, the transcripts must have been before the lower tribunal, either introduced into evidence or attached to a motion, pleading, or other filing. As with other record documents, the appellate court may only consider transcripts that were considered by the lower tribunal in coming to its decision. See, e.g., Parker v. Parker, 109 So. 2d 893, 894 (Fla. 2d DCA 1959) ("A deposition is not a part of evidence before the court unless made so pursuant to the rules of evidence and the rules of court.").

3. Record Stipulations and Reconstruction

Rarely, instead of preparing a record on appeal, both sides work together to prepare what is called a "stipulated statement" for the appellate court. Fla. R. App. P. 9.200(a)(3). This may save costs when the appellant must pay for the appellate record and is a separate and distinct procedure than reconstructing the transcripts of a hearing when there was no court reporter or electronic recording available at the court proceeding. A stipulated statement must be approved by both parties. It shows how the case proceeded in the lower tribunal, what the lower tribunal decided, includes copies of record documents as is necessary to review the decision on appeal, and must be filed with the lower tribunal clerk for transmission to the appellate court. If the parties intend to rely on a stipulated statement, they should advise the lower tribunal clerk as soon as possible. Fla. R. App. P. 9.200(a)(3).

If there was no court reporter present at the court proceeding or a transcript is otherwise unavailable, the parties may agree on a prepared statement of the evidence or the proceedings. The party seeking to recreate the record of the proceeding should prepare the statement from the "best available means," which includes the memories of the parties. They should then serve the statement on the opposing party, who has 10 days from the date of service to object or propose amendments to the statement. After that, the statement of evidence and any objections or proposed amendments are filed with the lower tribunal. The lower tribunal will settle any disagreements and give final approval to the statement of evidence. The court-approved statement can then become part of the appellate record. Fla. R. App. P. 9.200(b)(4).

4. Cross-Appeal

Sometimes in an appeal, the appellee also files a cross-appeal, which is explained in more detail in Chapters 8 and 9. The appellee then becomes the appellee/cross-appellant, and the appellant becomes the appellant/cross-appellee. If there is a cross-appeal, the cross-appellant has 20 days from the date the notice of appeal was filed to file a designation directing the clerk of the lower tribunal to add documents, exhibits, or transcripts to the record on appeal. If the cross appellant designates less than the entire record, then the cross-appellant must serve a statement of judicial acts to be reviewed with the cross-appellant’s designation. The cross-appellee then has 10 days after service of the cross-appellant's designation and statement of judicial acts to be reviewed, to designate any other items for inclusion in the record on appeal. When there is a cross-appeal, the total time for the clerk of the lower tribunal to prepare and transmit the record is extended by 10 days. Fla. R. App. 9.200(c).

5. Correction and Supplementation of the Appellate Record

The appellant is responsible for checking the record on appeal to make sure that everything the appellate court needs to make a decision on the issues raised is included. If one of the parties believes that the record contains an error or omission (e.g., a mislabeled document, a mistake in record page numbers, or a document filed with the lower tribunal but missing from the record on appeal), the appellant or appellee may correct it: (1) by agreeing with opposing counsel to stipulate to the correction, (2) by filing a motion to correct the mistake with the lower tribunal clerk before the clerk sends the record to the appellate court, or (3) if the lower tribunal clerk’s office has already sent the record to the appellate court, by filing a motion to supplement or correct the record on appeal in the appellate court asking the appellate court to make or allow the correction or supplementation. Fla. R. App. P. 9.200(f)(1).

If a party believes that the lower tribunal clerk has left a necessary item out of the record on appeal, the party cannot just file the document with the appellate court clerk or attach it to his or her brief. If the lower tribunal clerk has not yet filed the record in the appellate court, the party may arrange for correction or supplementation of the record with the lower tribunal clerk. This is typically done by filing a designation identifying the documents to be supplemented. However, if the lower tribunal clerk has already transferred the record to the appellate court, the party must instead file a "motion to supplement the record" in the appellate court. This motion should identify the missing filing by date and title and should explain why it needs to be in the record.

In a civil case, if the appellate court believes that the record is incomplete or wants a particular document, transcript, or exhibit that neither party designated with the lower tribunal clerk, the appellate court will generally order the appellant to make arrangements with the lower tribunal clerk to supplement the record. In a criminal case, the appellate court may order the lower tribunal clerk to supplement the particular document, transcript, or exhibit directly. Pursuant to rule 9.200(f)(2), the appellate court will give the parties a chance to supplement the record rather than decide the appeal on an incomplete record.

ITEM 3D | CIVIL APPEALS

1. Timing

In civil cases, the lower tribunal clerk will serve a copy of the index to the record on the parties within 50 days of the date that the notice of appeal is filed. The lower tribunal clerk will electronically transmit copies of the index and the record on appeal to the appellate court within 110 days of the date that the notice of appeal is filed. Fla. R. App. P. 9.110(e). The time for preparation and transmission of the appellate record is automatically extended by 10 days when there is a cross-appeal. In civil cases, the clerk's office initially sends each party a copy of only the record index. It is then generally up to the parties to either compile their own copy of the record using the record index, or obtain an electronic copy of the record from the clerk.

If the clerk needs more time to prepare the record, the clerk may request an extension, or a party may request an extension on behalf of the clerk. See 9.200(b)(3),(e). A motion for extension should be filed well before the time expires, and if a party is filing the motion, it should generally ask the court to extend both the time for the clerk to prepare the record and to “toll” or extend all other deadlines in the appeal accordingly (so that the briefs are not due before the record is due).

2. Costs

Generally, in civil appeals the appellant is responsible for the costs of preparation and transmission of the record on appeal. When an appellate party designates a proceeding to be transcribed, that party must pay for the original and any necessary copies of the transcript. Necessary copies include the copies that will be sent to the appellate court and the opposing party. Unless the party ordering the transcript has made some other arrangements with the court reporter, when that party orders the transcript in the designation, that party must also pay the court reporter one-half of the estimated cost of the transcript. When the court reporter delivers the completed transcript and copies, that party must pay the rest of the transcript costs. Fla. R. App. P. 9.200(b)(1).

A party to a civil appeal who does not have the money necessary to pursue the appeal may file an application for determination of indigent status with the trial court. See Fla. R. App. P. 9.430; §§ 57.081, 57.082, 27.52, Fla. Stat. However, indigency does not automatically mean that the lower tribunal clerk will transmit the record or that the court reporter will prepare the transcripts without cost in an appeal. See, e.g., §§ 27.52, 57.081, 57.082, Fla. Stat.

ITEM 3E | CRIMINAL APPEALS

1. Introduction

This section describes the record on appeal in a direct criminal appeal from the trial court to the appellate court. A "direct appeal" is an appeal from a conviction or sentence in a criminal case. An appeal from an order on a postconviction motion, such as a motion under Florida Rule of Criminal Procedure 3.800, 3.801, 3.850, or 3.853, is a "postconviction appeal." The next section, section (F), will describe preparation of a record in a postconviction appeal. See also Fla. R. App. P. 9.140 (criminal appeals) and 9.141 (postconviction appeals).

2. Timing

In a criminal appeal, the lower tribunal clerk will serve a copy of the record on the parties and electronically file the record in the appellate court within 50 days of the filing of the notice of appeal unless the proceedings designated for transcription by the parties are not timely filed with the lower tribunal clerk. If the designated transcripts are late, the clerk will serve a notice of inability to complete the record on the appellate court, the parties, and the court reporter. The record is then due within 20 days of the date that the court reporter files the transcripts with the lower tribunal clerk.

3. Costs

If a criminal defendant does not have the money for a criminal appeal, the defendant may ask the trial court to declare him indigent. See Fla. R. App. P. 9.430; §§ 57.081, 57.085 Fla. Stat. If the trial court agrees that the party is indigent, the indigent party does not have to pay for the transcripts, but still must prepare and serve a statement of judicial acts to be reviewed and a designation to the court reporter. The statement of judicial acts to be reviewed lists all of the issues the appellant intends to bring up on appeal. The appellant's designation to the court reporter should list only the proceedings that relate to the issues that the indigent party is planning to bring up in the appeal. Copies of the statement of judicial acts to be reviewed and the designation to the court reporter should be served on the State.

When the record on appeal has been prepared, the clerk’s office will send the State and, if the defendant has been declared indigent, the defendant or his appointed attorney, a copy of the record on appeal. If the defendant has not been found indigent, the lower tribunal clerk will send him a copy of the index to the record on appeal, as the clerk’s office does in a civil appeal.

ITEM 3F | POSTCONVICTION APPEALS

1. Introduction

In postconviction appeals, the record may be prepared differently depending on whether there was an evidentiary hearing on the postconviction motion. Appeals from orders entered on a postconviction motion after an evidentiary hearing are called "nonsummary postconviction appeals." Fla. R. App. P. 9.141(b)(3). Appeals from orders entered on a postconviction motion without an evidentiary hearing are called "summary postconviction appeals." Fla. R. App. P. 9.141(b)(2).

2. Nonsummary Postconviction Appeals

a) Timing

The lower tribunal clerk will prepare the record on appeal and electronically transmit the record on appeal to the appellate court and serve a copy on the parties within 50 days of the date that the notice of appeal was filed. Fla. R. App. P. 9.141(b)(3)(A).

b) Costs

As in direct criminal appeals, the clerk’s office automatically sends a copy of the record on appeal to the State and, if the defendant has been declared indigent, to the defendant. If the defendant has not been declared indigent, the clerk will send only a copy of the index to the record on appeal to the defendant. If the appellant has been declared indigent, the state will bear the costs of transcription of the evidentiary hearing. However, if the appellant has not been declared indigent, it will be the appellant’s responsibility to pay the cost of preparing the transcript. Failing to pay the cost of preparing the evidentiary hearing transcript can delay preparation of the record on appeal.

c) Directions to the Clerk and Designations to the Court Reporter

If the appellant does not file directions to the lower tribunal clerk identifying the specific filings to be included or excluded from the record on appeal, the lower tribunal clerk’s office will automatically include the postconviction motion, the State’s response, a reply if one was filed, the order on the motion, attachments to any of these documents, and a transcript of the evidentiary hearing. If there was a motion for rehearing, the clerk’s office will include the rehearing motion, the State’s response, any reply, the order on the motion, and attachments to any of these documents. Fla. R. App. P. 9.141(b)(3)(B)(1).

In a nonsummary postconviction appeal, the appellant does not have to file a designation to the court reporter. If the appellant does not file a designation, the lower tribunal clerk’s office will tell the court reporter to transcribe the evidentiary hearing. Fla. R. App. P. 9.141(b)(3)(A).

Just as in any appeal, it is the appellant’s responsibility to make sure the record on appeal contains everything the appellate court will need to decide the issues on appeal. If something is missing that was part of the lower tribunal file below, it is the appellant’s responsibility to file a motion to supplement the record as described in section (C)(5) of this chapter.

3. Summary Postconviction Appeals

In a summary postconviction appeal the clerk will include in the record on appeal the postconviction motion, the State’s response, a reply if one was filed, the order on the motion, and attachments to any of these documents. If there was a motion for rehearing, the record on appeal will also include that motion, the State’s response, the reply, the lower tribunal’s order on the motion, and attachments to any of these documents. Fla. R. App. P. 9.141(b)(2)(A).

In summary postconviction appeals, the rules do not require the clerk’s office to put new page numbers on the pages of the appellate record or to prepare an index. However, the appellate court may order it to do so. Similarly, the clerk’s office is not required to send a copy of the appellate record or an index to the parties. Fla. R. App. P. 9.141(b)(2)(B). But some appellate courts require the clerk to do so. See e.g., In re: Preparation of Records in Review of Proceedings in Collateral or Post-Conviction Criminal Cases, Fla. Admin. Order 02-2 (Fla. 1st DCA Jan. 18, 2002) (available at http://www.1dca.org/orders/02-2.pdf)

ITEM 3G | WORKERS’ COMPENSATION APPEALS

1. Introduction

Workers' compensation claims are brought in the Office of the Judges of Compensation Claims (OJCC), a part of the Department of Administrative Hearings. Consult Chapter 17 of this Handbook for more information on workers' compensation claims. The requirements for preparing and filing the appellate record in workers’ compensation cases are found in Florida Rule of Appellate Procedure 9.180(f), (g), and (h)(2). This includes the contents of the record, who is responsible for preparing it, paying for it, and submitting it to the appellate court. The process for preparation of the record in appeals from final orders is started by the filing of the notice of appeal with the Judge of Compensation Claims’ (JCC) office that decided the case. As discussed below, in appeals of nonfinal orders allowable under rule 9.180(b)(1), the notice of appeal initiates the time limit for submitting the initial brief and the appendix to that brief which serves as the record in such appeals.

2. Appeals from Final Orders

Rule 9.180(f)(1) requires that the record in workers’ compensation appeals of final orders include all petitions for benefits, all notices of denial of the claim filed by the employer or its insurance company, as well as any pretrial stipulations, pretrial orders, trial memoranda, depositions, or other exhibits the JCC admitted into evidence, motions for rehearing (and responses to them), the order(s) addressing any motions for rehearing, the transcripts of any hearings held before the JCC, and the order that is being appealed. If there is anything that was filed with the workers’ compensation judge that is not on this list and which a party wants to be in the record on appeal, or does not want to be in the appellate record, a party (or all parties) may designate other items for inclusion in or omission from the record in accordance with the process explained in rule 9.200(f), and section (C)(1) of this chapter, by filing a notice of designation with the JCC.

Evidence, such as documents, reports, deposition transcripts, or testimony at trial, that a party asked the JCC to admit into evidence, but which the JCC ruled was not admissible, is generally not included in the record or considered on appeal. However, rule 9.180(f)(2) states that a party may direct that the record include such evidence if the evidence was proffered and the exclusion of the evidence is one of the issues on appeal. In other words, if a party asked the JCC to admit something into evidence, the JCC refused to do so, and the party is appealing that refusal, that party should request the JCC to include it in the record on appeal. See Fla. R. App. P. 9.180(f)(2). But this can be done only if, at the hearing, the party seeking to have the evidence admitted asked the JCC to accept it so that the appellate court can review the evidence and decide if it should have been admitted.

Rule 9.180(f)(4) allows the parties to agree on the contents of the appellate record. In this situation, the parties would file a written stipulation of the record with the clerk for the JCC, and that stipulated record along with the order being appealed would be transferred to the appellate court. Rule 9.180(9) provides that rule 9.200(a)(3) applies in workers’ compensation appeals. As explained in section (C)(3) of this chapter, under 9.200(a)(3), the parties may prepare a stipulated statement explaining how the issues on appeal arose and were decided by the JCC. The order appealed should be attached to this statement as well as those parts of the record necessary for the court of appeal to decide the issues on appeal. If this process is chosen, the parties are required to inform the clerk of the OJCC and file the stipulated statement with the clerk within 60 days.

Rule 9.180(f)(6) provides that the deputy chief judge of compensation claims shall designate the person to prepare the record on appeal, and that the clerk of the OJCC is to supervise the record’s preparation. When the record (including any transcript(s)) is ready, the clerk of the OJCC sends it to the JCC who presided over the case to review it and certify that it was prepared according to the rules and send it to the court of appeal within 60 days after the notice of appeal is filed. The JCC is also required to provide an electronic image copy of the record to the lawyers for represented parties, and to any unrepresented party. Rule 9.180(f)(8) allows the JCC to extend the time for delivery by 30 days, but any further extensions requires permission from the appellate court.

Generally, pro se parties receive a copy of the record on a CD through the mail. However, they may also register for electronic access to the OJCC case by going to the eJCC website, https://www.fljcc.org/eJCC, signing up for an account, and then filling out the "request for eJCC Access to Case" form found at: https://www.fljcc.org/JCC/forms.asp. After completing all of the steps to gain eJCC access to their case, pro se parties may view and download a copy of the appellate record, which is also on their OJCC docket. As with all public records, pro se parties may make a public records request for any missing document they may want.

3. Appeals from Nonfinal Orders

Rule 9.180(b)(1) allows for appeals from only three types of nonfinal administrative orders: orders on jurisdiction, venue, or compensability. The proper method of submitting the record in an appeal in these cases is to include the relevant materials in an appendix to the appellate brief, as discussed in section (B)(1) of this chapter. Rule 9.180(h)(2) provides that in an appeal from a nonfinal order in a workers' compensation case, the "[a]ppellant's initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 15 days of filing the notice" of appeal. Thus, once an appellant files a notice of appeal of one of the nonfinal orders allowed by rule 9.180(b)(1), that party has just 15 days to file an initial brief and appendix. Therefore, it may be advisable to make sure that all documents and transcripts have been obtained before filing the notice of appeal, but keep in mind that the deadline for filing the notice is 30 days after the JCC sends the nonfinal order to the parties either by mail or email, and if the notice of appeal is late the appeal will be waived. See Fla. R. App. P. 9.180(b)(3).

Rule 9.220(b) provides that the appendix shall contain an index (which is a list of the items included in the appendix and the page number on which they can be found), a conformed copy of the order being appealed, and all of the documents that concern or support the appellant’s argument on appeal. This includes, for example, any petitions for benefits, motions, responses to motions, and any exhibits or records that were admitted into evidence. Also, if there were any hearings on the issue decided in the non-final order, the appendix should include a transcript of the hearing(s). The appellant may already have copies of the papers that were filed in the JCC that are needed to include in the appendix. If so, the appellant can usually prepare the appendix from these copies. Otherwise, the appellant may obtain copies of those documents from the judge of compensation claims or through the eJCC electronic filing system. The copies do not have to be certified, but they must be accurate and the appellate parties cannot change or mark up the copy. If a transcript or other record of a hearing is needed for the appendix, the appellant may need to request a copy of the audio recording from the OJCC and then have the audio recording transcribed for inclusion in the appendix.

Rule 9.220(c) provides that the appendix should be filed in electronic (PDF) format unless a paper copy is allowed. The rule then discusses the formatting requirements for an appendix in paper format. The rule provides that, a paper appendix "shall be separately bound or separated from the petition, brief, motion, response, or reply by a divider and appropriate tab, and" that the paper size should be 8 ½ by 11 inches. Please see Chapter 1 for more information on electronic filing in the appellate courts.

The appellee may decide that the appellant's appendix is incomplete or missing important documents or transcripts that were part of the record below. If so, the appellee can file an appendix with the answer brief, following the same format and procedure discussed above and in section (B)(1) of this chapter, including any additional documents that the appellee thinks are necessary for the appellate court to consider. If the appellant files a reply brief and wants to include additional documents from the lower court’s record for the appellate court to review that have not already been included in an appendix, the appellant can file an additional appendix with the reply brief.

4. Costs

The appellant is responsible for paying the cost of preparing the record in a worker's compensation appeal. The cost of preparing the record in a workers' compensation appeal is addressed in rule 9.180(f)(5). For appeals from final orders, subdivision (f)(5)(A) of this rule states that within 5 days after the contents of the record have been determined, the OJCC must serve notice on the appellant of the estimated cost of preparing the record. At this point, the appellant must either (1) pay the estimated costs within 15 days after service of the notice of the estimated costs, or (2) file a motion asking to be excused from paying all or some of the costs as provided in rule 9.180(g)(3). If the appellant fails to deposit with the JCC the estimated costs, the OJCC will notify the appellate court, which may dismiss the appeal.

Rule 9.180(g)(3) states that the cost of the record will be waived or excused if the appellant can show that the appellant is “insolvent” or “indigent.” According to the law, an appellate party is insolvent or indigent if the party has stopped regularly paying his/her debts and cannot pay his/her debts when they are due, or if a bankruptcy court has entered an order stating that an appellate party is insolvent. According to rule 9.180(g)(3)(B), if an appellate party believes that he/she meets these criteria, that party must file a verified petition with the judge of compensation claims within 15 days after the date the judge sent the notice of estimated costs to that party, stating that the appellate party is insolvent. If the verified petition is filed before receiving the notice of estimated costs or more than 15 days after the judge sent the notice of estimated cost, the petition will be denied as untimely. For purposes of pursuing this petition, the party who filed it is referred to as the petitioner rather than as the appellant.

A sample form titled “Verified Petition: Relief from Paying Cost of Record Preparation” can be found online at www.jcc.state.fl.us/JCC/forms.asp. Rule 9.180(g)(3)(D) provides that the petition must be sworn, signed by the appellant, and notarized by a notary public. The petitioner must attach to the petition a complete and detailed “Financial Affidavit,” which must also be sworn, signed by the petitioner, and notarized by a notary public. The financial affidavit must list all of the party's assets, liabilities, and income, including assets owned with the party's spouse. A form for the financial affidavit is also available at www.jcc.state.fl.us/JCC/forms.asp. The petitioner must also attach a copy of any directions filed with the judge of compensation claims specifying which filings the party directed be included in the record.

Rule 9.180(g)(3)(E) states that, when filing the petition for relief, financial affidavit, and a copy of the directions with the judge of compensation claims, the petitioner must also provide copies of the same documents to all other parties to the appeal and to the Division of Workers’ compensation (whose website is http://www.fldfs.com/wc/), the office of general counsel of the department of financial services (the department’s website is http://www.fldfs.com), and the clerk of the appellate court.

Rule 9.180(g)(3)(F) provides that, after the JCC gives 15 days’ notice of the petition to the other parties and the Division of Workers' Compensation, the JCC is to promptly set the matter for a hearing. However, if there is no objection to the petition from any of the other parties or the Division within 20 days, then the JCC can enter an order on the petition without a hearing. Rule 9.180(g)(3)(G) provides that, if the JCC denies the petition, or grants it in part, then the petitioner/appellant must deposit the estimated costs with the JCC within 15 days of the order and, if the appellant fails to do so, the OJCC will notify the appellate court, which may dismiss the appeal. If the appellant decides to withdraw the petition to be relieved of paying for the cost of record, the payment should be submitted when the petition is withdrawn.

5. Transcripts

As noted in section (G)(2) of this chapter, the record in appeals from final orders is supposed to include transcripts of all hearings held by the JCC. Just as in civil appeals, if an appellant needs a transcript of a hearing that was held before the judge of compensation claims, the appellant needs to make arrangements to have a court reporter at the hearing or to be sure the judge will electronically record the hearing, and to have the hearing transcribed. Rule 9.180(f)(6)(A), provides that the deputy chief judge of compensation claims is the one who selects the transcriber or reporter to prepare the necessary transcript(s), and requires the deputy chief judge to notify the parties of the selection. Subdivision (f)(6)(B) of the rule allows for a party to object to the selection of transcriber, in writing, within 15 days of service of the notice of selection. If there is an objection, the deputy chief judge is to hold a hearing on the matter within 5 days. Subdivision (f)(6)(C) of the rule requires the transcriber selected by the deputy chief judge to certify and deliver an electronic version any transcript(s) to the clerk of the OJCC, and to do so in sufficient time for the OJCC to include the transcript(s) in the appellate record. The transcriber must also notify the parties when the transcript(s) is delivered to the clerk of the OJCC. In an appeal from a nonfinal order, if a transcript or other record of a hearing is needed for the appendix, the appellant may need to request a copy of the audio recording from the OJCC and then have the audio recording transcribed for inclusion in the appendix.

6. Supplementing the Appellate Record

As with an appeal from a final order in a civil case, the parties to a workers' compensation appeal may obtain permission from the appellate court to supplement or correct the record. Rule 9.180(f)(9) explains that the provisions of rule 9.200(f), discussed in section (C)(5) of this chapter, apply to workers’ compensation appeals. If there is an error or if something is missing from the record, the parties can stipulate to a correction, the JCC can correct the record before transmitting it, or the appellate court can order the record to be corrected. Any error or omission in the record discovered before the record is transmitted should be brought to the JCC’s attention by a motion to supplement or correct the record. If the error or omission is discovered after the record is transmitted to the court of appeal, such motion should be filed with the court of appeal. When it is necessary to supplement or correct the record originally prepared, the procedures concerning the costs of preparing and submitting the record are repeated.

Likewise, if the appellant determines that the appendix that was filed with the initial brief in the appeal of a nonfinal order, the appellant can file a motion with the appellate court requesting permission to amend the appendix to include missing items.

ITEM 3H | ADMINISTRATIVE APPEALS

1. Introduction

In certain circumstances, Florida law allows parties to appeal decisions or rules issued by Florida state agencies. Fla. R. App. P. 9.190. As in any appeal, without a complete record of all documents that led up to the agency's decision or rule, the appellate court will not be in a position to determine whether the agency made an error. Therefore, appellant has the same duty to make sure that the appellate court receives all of the necessary documents by direction or supplementation.

The procedures for furnishing the record to the appellate court in an administrative appeal are primarily found in Florida Rules of Appellate Procedure 9.190 and 9.200, and all parties involved in the appeal should carefully review and comply with those rules. In challenges to an agency’s nonfinal orders and appeals from "immediate" final orders pursuant to section 120.569(2)(n), Florida Statutes, the record will not be prepared by the agency clerk, but instead must be an appendix prepared by the parties and attached to their briefs as described in section (B)(1) of this chapter. See Fla. R. App. P. 9.190(c)(2)(F)&(c)(3) and 9.220. Otherwise, as in other types of appeals, when a party files a notice of appeal of a state agency’s final decision or rule, a formal record will be prepared by the agency clerk. As in civil appeals, the parties to an administrative appeal will only receive a copy of the record index, not a copy of the entire appellate record. The parties should construct their personal record using the index and their personal copies of record documents.

If a party to an agency appeal needs to review the appellate record, that party can make arrangements with the agency clerk to review it before it is sent to the appellate court. After the record has been sent to the appellate court, an appellate party can call the clerk of the appellate court to review the record there. Alternatively, many state agencies now have online dockets posted on their web sites, which provide easy public access to copies of most, if not all, documents in the record on appeal. For example, the Division of Administrative Hearings' online docket is accessible at www.doah.state.fl.us.

2. Directions to the Agency Clerk

The appellant generally has 10 days to send the agency clerk written directions identifying the documents to be included or excluded from the record on appeal. The appellee has an additional 10 days to send the agency clerk supplemental directions to include any important documents that may be missing from the appealing party's directions. A standardized "directions to clerk" form is included in the appellate rules and may be used as template in preparing directions to the agency clerk. Fla. R. App. P. 9.900(g). The agency clerk is typically located at the same address as the agency's main headquarters. Most state agencies have a rule published in the Florida Administrative Code identifying their particular agency clerk's address. The agency clerk's name and address can also be obtained by calling the agency's lawyer or searching the agency's website. Like any other pleading, motion, or other paper filed in a legal proceeding, a copy of the directions to the agency clerk must be served on all other parties in the case. It is also wise to send a courtesy copy to the clerk of the appellate court.

The types of documents that should be included in the record on appeal will depend on the type of agency action being appealed and the types of issues raised on appeal. In this regard, it is very important to review rule 9.190(c) and sections 120.57(1)(f) and (2)(b) and 120.574(2)(d), Florida Statutes, which specifically identify the types of documents that must be included in various types of administrative appeals. As in other types of appeals, such documents normally include, all notices, pleadings, motions, memoranda of law, hearing transcripts, evidence, proposed orders, and orders issued in the administrative proceeding. Fla. R. App. P. 9.190(c). Also like other appeals, the record may generally include only documents that were filed with and reviewed by the state agency before it issued the decision or rule being appealed. Fla. R. App. P. 9.190(c)(1). If documents not on file with the agency are included in the appellate record, the appellate court may strike the document from the record and may even penalize (or "sanction") the party who was responsible for placing them in the appellate record.

3. Transcripts of Agency Proceedings

If the agency action was based on evidence or other presentations made at one or more hearings, it is critical to make sure that a transcript of those hearings is included in the record on appeal. Most state agencies have a duty to make sure that the final hearing is "preserved" by providing a certified tape recording or a court reporter. However, it can sometimes be difficult to get an accurate transcript from a tape recording. Therefore, if a party is considering appealing the agency's decision in the future, that party should request that the agency's lawyer have a court reporter present at all important hearings. If the agency declines to do so, the party should consider hiring a court reporter at that party’s own expense. Otherwise, the appellate court will not have an accurate record of what happened at the hearing, and as a result, may not be able to adequately review the issues raised on appeal. If a relevant hearing transcript was not ordered before the agency issued its decision or rule, the appealing party will be responsible for ordering and paying for this transcript and including it in the record on appeal. If the appellant wins the appeal, the transcription expenses may be recoverable from the losing party or losing parties by filing an appropriate motion to tax appellate costs in a timely manner after the appeal has ended. See Fla. R. App. P. 9.400.

4. Costs

In administrative appeals, the agency clerk may or may not impose fees for electronically transmitting the record to the appellate court. If the record is large, which is often the case, the cost to prepare the record could be significant. Therefore, if costs are a concern to an appellant, before deciding to appeal the appellant should check with the agency clerk to determine whether they will be a charge and to get an estimate of any anticipated fees for preparing the record.

5. Timing

From the date that the notice of appeal is filed, the agency clerk has 50 days to prepare and serve the index to the record on appeal. Fla. R. App. P. 9.110(e). Many times, the agency clerk is unable to meet this deadline and needs an extension of time. If so, the appealing party should file a motion asking the appellate court to grant the agency clerk an extension to prepare the record index. The motion should be filed well before the deadline. In addition to asking for an extension on behalf of the agency clerk, it should also ask the appellate court to “toll” or extend all of the other deadlines in the appeal accordingly.

6. Supplementation

When an appellate party receives the record index, the party should carefully review it to make sure that it is complete. If a party believes that a document is missing from the record index or is mislabeled, that party can file a motion to supplement or correct the record with the appellate court explaining the situation, and requesting correction of the error or supplementation with the missing document. Motions to correct or supplement the appellate record are discussed in detail in section (C)(5) of this chapter. If a party’s review of the record index reveals that one or more documents that were never considered by the agency have been included in the record on appeal, the party can file a motion to strike with the appellate court requesting that those documents be "stricken" from the record on appeal. Additional forms for use on appeal can be found in the Florida Rules of Appellate Procedure, which can be obtained at a local court, agency law library, law school library or on the Florida Bar's website at http://www.floridabar.org.

CHAPTER IV | MOTION PRACTICE

ITEM 4 | MOTION PRACTICE IN THE APPELLATE COURTS

Motion practice is different in an appeal than in a proceeding in a trial court or lower tribunal. For one thing, there are far fewer motions filed in an appeal. Most of the motions in an appeal relate to how the appeal moves through the court. Some of the more common types of motions a party may file in an appeal include:

motions to dismiss an appeal;
motions for extensions of time to file appellate briefs and/or comply with court orders;
motions to strike another party’s brief for failure to comply with the appellate rules;
motions to stay execution of a final judgment, or to stay proceedings in the lower tribunal during an appeal from a non-final order;
motions to consolidate appeals in the same or related cases; and
motions for rehearing, to name a few.

Rule 9.300 of the Florida Rules of Appellate Procedure contains the requirements for appellate motions. A motion filed in an appeal should:

• explain what the party is asking the appellate court to do (the “relief sought”);

• explain why the appellate court should grant the relief sought (the “argument”); and

• include citations to any statutes, rules, or cases that support the party’s argument (the “authorities”).

If a party believes the appellate court should consider any documents from the case file in the lower tribunal ("the record”), the party should attach a copy of those documents to that party’s motion as “exhibits.” The party should attach a copy of the documents because the appellate court may not have yet received the record from the lower tribunal.

The party filing the motion in the appellate court is also required to send, or “serve,” a copy of the motion on the other parties to the case (along with any attachments/exhibits). The party filing the motion is also required to include a “certificate of service” at the end of the motion, which states (certifies) that: the party served a true and correct copy of the motion on the other parties; the date the document was served (sent); and the method of service (such as by U.S. mail, or e-mail if e-service is permitted). The party must sign the motion and the certificate of service.

The other parties to the appeal generally have 10 days to respond to a motion filed in an appeal. (A reply to the response is usually not permitted). Most often, an appellate court will then decide the motion based only on the motion and the response (if any). The court generally will not hold a hearing or oral argument on a motion.

Most motions “toll,” or extend, the time for the next steps in the appeal until the court rules on the motion. But some appellate motions do not toll time. Motions that do not toll time include but are not limited to: motions for post-trial release in a criminal case; motions for stay pending appeal; motions relating to oral argument; motions relating to attorney’s fees on appeal; motions relating to expediting the appeal. Also note that motions of any type filed in the Florida Supreme Court do not toll time, unless a separate request to toll time is filed with the motion (and granted). If a party has any questions or concerns about the schedule of the appeal or the tolling effect of a motion, a party should call the court clerk’s office and/or retain an appellate lawyer.

One of the most common types of motions in an appeal, which does “toll” time until the court rules on it, is a motion for an extension of time to file an appellate brief. A party requesting an extension of time to file a brief generally must do so before the deadline. In addition, a party moving for an extension is usually required to certify in the motion that he or she has contacted the opposing party’s attorney, and state whether or not the opposing party objects to the requested extension. If the other party agrees to the motion, the court may rule on it faster than if the court has to wait for the other party to respond. A motion for an extension of time to file a brief may ask for an extension of a certain number of days (typically 30 to 60 days), or it may include the specific date that a party would like to serve and file the brief. But, for example, asking for an extension “until February 1, 2016,” to serve and file the brief may be less confusing to a pro se litigant than just asking for a 30-day extension of time.

One common type of motion which does not toll time is a motion to “stay,” or stop, the lower tribunal’s order or decision until the appeal is decided. For instance, a party may want to file a motion to stay (meaning stop) the other party’s attempt to collect on a judgment. Rule 9.310 of the Florida Rules of Appellate Procedure contains the rules regarding “stays.” A motion for stay is usually filed first in the lower tribunal, not the appellate court. A party to an appeal can then file a motion in the appellate court asking the appellate court to review the lower tribunal’s ruling on the stay motion. In an emergency situation, a party could file a motion to stay directly with the appellate court first, but the appellate court may deny the motion or require the party to file a motion with the lower tribunal first. See Florida Rule of Appellate Procedure 9.310.

If the judgment being appealed requires only the payment of money, an automatic stay (without filing a motion) may apply if a bond is posted in an amount provided for under Rule 9.310 of the Florida Rules of Appellate Procedure. The amount of the bond must generally be equal to the amount of the judgment, plus twice the statutory rate of interest on judgments. (If the interest rate is not stated in the judgment, the clerk’s office of the lower tribunal should be able to provide it). In most other situations, a party must both file a motion to stay and get a ruling on it in order to stay the lower tribunal’s order or judgment until the appeal is decided. Stays during an appeal are addressed in more detail in Chapter 11 of this Handbook.

Unless electronic filing of documents with the court is permitted, a party must mail or deliver the motion to the appellate court or file it in person at the courthouse. Similarly, unless service by e-mail is available, a party must mail or deliver a copy of the motion to the opposing parties. A party filing an appellate motion by mail or delivery should include plain, unaddressed, postage-paid envelopes for all parties in the case, which the court will use to send a copy of its order on the motion to the parties in the case. Postage-paid envelops probably are not needed if the party files and serves the motion electronically and if the other parties in the case have designated an e-mail address for service by e-mail. Currently, service by e-mail is available for pro se parties if certain procedures and requirements are followed. See Florida Rules of Judicial Administration 2.514 and 2.516. In addition, most courts now allow (but do not require) electronic filing by pro se parties. See Florida Rule of Judicial Administration 2.525(c)-(d). The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk’s office of the particular court to find out if electronic filing by pro se litigants is allowed, and, if so, the requirements for electronic filing and service by e-mail. See also Florida Rules of Judicial Administration 2.516 and 2.525(c)-(d). Chapter 22 of this Handbook contains additional contact information the appellate courts in Florida.

CHAPTER V | WRITING AN APPELLATE BRIEF

ITEM 5A | INTRODUCTION

In most appeals, an initial brief, an answer brief, and a reply brief will be filed, in that order. The appellant, who filed the notice of appeal, will file the initial brief first. Then the other party, the appellee, will respond with an answer brief. Finally, the appellant can respond to the answer brief by filing a reply brief. In the case of extraordinary writs, a petition is filed as the brief. Extraordinary writ petitions are discussed in Chapter 10 of this Handbook.

Before writing an appellate brief, a party should review the appellate record to understand the history and facts of the case, research the law, and decide what arguments to make and issues to raise. The appellant will want to argue why the lower tribunal’s decision or judgment should be reversed (why the lower court “erred”). And the appellee will want to argue why the decision was correct and should be upheld, or “affirmed.”

Again, the initial brief is filed first by the appellant. The appellee does not file an answer brief until after the initial brief, because the answer brief will respond to the arguments in the initial brief. The reply brief is then filed by the appellant after, and in response to, the answer brief. Both the initial brief and the answer brief will contain a section called the statement of the case and facts. In this section, the briefs discuss the history and facts of the case. There must be no argument in the facts section. The initial and answer briefs will also contain argument sections. There will be a summary of the argument section, which is a short preview of the argument, and also a separate and longer argument section where the party will fully discuss all points on appeal. Initial and answer briefs should also state the standard of review. The reply brief will only need an argument section, since it just responds to the answer brief (and cannot add any new arguments). All appellate briefs should contain citations to the appellate record for any facts discussed, whether in the facts section or the argument. All briefs should also contain citations to legal authority (statutes and case law) in the argument section.

As mentioned above, before a party writes an appellate brief, he or she should consider and study several things. For example, the party writing the appellate brief reads the record on appeal prepared by the clerk of the lower tribunal that entered the order or judgment appealed. This record will include the important pleadings filed in the case and should also include transcripts of any important hearings that were held that relate to the issues raised in the appeal.

The party writing the appellate brief also researches what law applies to the party’s case and to the issues raised in the appeal. This may include statutes, case law, rules, or other sources of law. The party writing the appellate brief goes to a law library or does legal research on the computer to look for cases or statutes, preferably ones from the State of Florida, that support his or her argument. Then the party writing the appellate brief gathers together any statutes and case law that support the argument he or she is going to make in the appellate brief. This is because the Florida Rules of Appellate Procedure require the appellate party to specifically refer, or “cite,” to those cases or statutes in the appellate brief to support his or her argument. Citations to legal authorities in the brief should follow the format for citations found in Florida Rule of Appellate Procedure 9.800.

ITEM 5B | FORMATTING FOR ALL BRIEFS

Florida Rule of Appellate Procedure 9.210 requires that all briefs have a specific format. Briefs must generally be printed or typed on opaque, white, unglossed paper. The paper size should be 8.5 by 11 inches. The paper should have margins of at least one inch on all sides. The lettering should be black. If a brief is typed on a computer, it must be double-spaced and use Times New Roman 14-point font, or Courier New 12-point font. Any headings or footnotes must be the same font and size as the rest of the brief. Although typed briefs must be double spaced, headings, indented quotations, and footnotes can be single spaced.

The brief should have a cover sheet stating: the name of the appellate court; the case number the appellate court has assigned to the case, or a space to enter that number if it is a new case that does not have a number; the name or “style” of the case (i.e., John Smith v. Jane Doe); the name of the lower tribunal that entered the order or opinion on appeal; the name of the brief (i.e., initial brief of appellant John Doe); and the name and address of the person filing the brief.

Briefs filed in paper format should not be stapled or bound (except by paper clip or rubber band). This is a recent requirement that assists the clerks of court, who now have to scan paper briefs into the computer.

ITEM 5C | CONTENTS OF THE INITIAL BRIEF AND ANSWER BRIEF

The initial brief is the first brief. It is filed by the appellant who filed the appeal. The appellant’s initial brief is due within 70 days after filing the notice of appeal. An appellant who needs extra time to file the initial brief should file a motion for an extension of time in the appellate court before the deadline for the brief. Motion practice is discussed in Chapter 4 of this Handbook. The initial brief should set out the facts and history of the case in the statement of case and facts section. It should also present legal arguments explaining each reason the appellant believes the decision of the lower tribunal was wrong (i.e., erroneous) and why it should be reversed. The initial brief cannot be longer than 50 pages, not counting the pages used for the Table of Contents, Table of Citations, Certificate of Service, Certificate of Font Compliance and the signature block for the brief's author. A party can ask the court for permission to file brief longer than 50 pages, but such motions are rarely granted. And briefs are usually much shorter, often 20 to 30 pages or less.

The answer brief is the next brief. It is filed by the appellee within 20 days after the initial brief, again unless a motion for an extension of time is filed before the deadline. The answer brief responds to the arguments in the initial brief. It will argue why the lower tribunal’s decision was correct and should be affirmed. Like the initial brief, the answer brief generally cannot be longer than 50 pages. Unlike the initial brief, the answer brief is not required to have a statement of the case and facts section, but it usually should have one to explain the case from the appellee’s perspective. Although the appellee will argue in the answer brief that the appellant’s arguments in the initial brief are incorrect, both sides must argue their positions respectfully and without name-calling or insults.

The initial brief and the answer brief will each have the following sections:

1. Table of Contents
2. Table of Authorities
3. Statement of the Case and Facts
4. Summary of the Argument
5. Standard of Review
6. Argument
7. Conclusion
8. Certificate of Service
9. Certificate of Font Compliance

1. Table of Contents

The table of contents lists the sections and issue headings in the brief, with the corresponding page numbers of where in the brief those sections and headings are.

For example, a table of contents for an initial brief might look something like this in an appeal of a final judgment entered after a jury trial:

Table of Contents

Table of Authorities		1
Statement of the Case and Facts		2
Summary of the Argument		10
Standard of Review		11
Argument		12
Issue I:	Whether a new trial is required based on the trial court’s decision to strike defendant’s only witness	12
Issue II:	Whether a new trial is required based on plaintiff’s improper closing arguments	18
Conclusion		24
Certificate of Service		25
Certificate of Font Compliance		25

2. Table of Authorities

The table of authorities (also called the table of citations) is similar to the table of contents. It is a list of the legal authorities (cases, statutes, and rules) referred to or “cited” in the brief to support the party’s arguments, along with all of the page numbers where those authorities were cited in the brief. Cases are listed in alphabetical order. Statutes are listed in numerical order. Legal authorities are cited in the format required by Rule 9.800 of the Florida Rules of Appellate Procedure.

For example, a table of authorities in an appellate brief might look like this:

Table of Authorities

Gray v. State, 123 So. 2d 159 (Fla. 3d DCA 2002)		11,21,23
Smith v. Smith, 222 So. 2d 222 (Fla. 2d DCA 1999)		12,15-16
§ 412.30, Fla. Stat. (2015)		11,13,18,22
§ 720.000, Fla. Stat. (2015)		15

3. Statement of the Case and the Facts

Before writing the brief, the party will have reviewed the record on appeal that was prepared by the clerk of the trial court (or other lower tribunal) that entered the order or judgment being appealed. The statement of the case and facts explains to the appellate court, based only on the documents and evidence that are in the record, what the history and facts of the case are, and what occurred in the lower tribunal. This part of the brief is for facts only, not argument.

The appellate party may not discuss in the brief any fact or circumstance that is not in the appellate record, such as events occurring after the order or opinion on appeal was entered, or documents or evidence he or she did not present to or file in the lower tribunal. In any appellate brief, every sentence containing a fact must be followed by a citation referring to the page number of the record on appeal where that fact can be found or supported. Usually, the appellate party would refer to a page of the record in parentheses or brackets with an “R.” followed by the volume and page number. Two common formats for citing the record volume and page numbers are, for example: (R. Vol. 1, pp. 1-8; R. Vol. 4, p.815), or [RI.1-8; RIV.815]. If there is a trial transcript in the record that has separate page numbers, the appellate party may refer to it as “T.” followed by the page number. Citations in the statement of case and facts section of a brief might look something like this:

This case arises from an automobile accident. [RI.12-18]. Plaintiff, Mr. Roberts, filed a lawsuit against Defendant, Ms. Wynn, alleging she was negligent in causing the accident and that he was injured as a result. [RI.12-18]. Defendant denied she was negligent or that the accident caused Plaintiff’s alleged injuries. [RI.34-36; RII.205].

At trial, Plaintiff’s treating physician, Dr. John, testified Plaintiff was injured as a result of the accident. [T.235-40, 315-19]. Defendant’s expert, Dr. Smith, testified that Plaintiff was not injured. [T.441-44, 448-52].

In the statement of the case and the facts section of an appellate brief, the party writing the brief will discuss:

(a) the type of case (civil, criminal, etc.), and nature of the appeal (such as an appeal from a final judgment or non-final order, etc.);

(b) the procedural history of the case in the lower tribunal, such as what documents, pleadings, or motions were filed and when; what arguments and positions the parties raised the lower tribunal; and what happened in the pre-trial and trial proceedings;

(c) the evidence that was presented to the lower tribunal at the trial or hearing, such as written documents and/or the testimony of witnesses; and

(d) the outcome of the trial, hearing, or other proceeding.

The appellate party drafting the brief includes in this section those facts that specifically relate to the issue he or she is arguing. For example, an appellant who is only arguing that the trial court erred in excluding certain evidence at trial probably would not need to discuss facts regarding jury selection in the brief. The statement of the case and the facts is usually presented in chronological order to make it easier for the appellate court to follow and understand.

4. Summary of the Argument

This section provides an overview of the arguments made in the appellate brief. It is much like a “road map” that previews the arguments. The summary of the argument is seldom longer than two pages, and is never longer than five pages. Since the summary of the argument is just a short preview of the arguments, it generally does not need to have citations to the appellate record or legal authorities.

5. Standard of Review

While the standard of review does not have to be in a separate section, it must be included in the brief. If it is not in a separate section, it should be included in the argument section, at the beginning of each issue. Whether it is in a separate section or in the argument, the standard of review should be stated for each point on appeal. The standard of review is very short, usually just a sentence or two and often no longer than a paragraph. It tells the appellate court whether the issue raised on appeal is a question of fact, law, or both. This is important because the standard of review determines how much weight or “deference” the appellate court will give to, or how strictly it will question, the lower tribunal's rulings and decision.

Appellate courts give the greatest deference to a lower tribunal's findings of fact and discretionary decisions. Findings of fact are generally reviewed for “competent substantial evidence,” meaning they will usually be upheld if supported by any competent evidence in the record. Discretionary decisions, such as rulings on evidence, are reviewed for an “abuse of discretion,” meaning they will usually be upheld unless the decision was extremely unreasonable.

Appellate courts review pure legal issues, such as the interpretation of a statute, with the least amount of deference. This is called the "de novo" standard of review. Under this standard, appellate courts decide for themselves what the law says and what the decision of law should be, without deferring to the trial court’s decision.

6. Argument

The argument section explains the party’s legal arguments in the appeal and why the decision of the lower tribunal should either be affirmed or reversed. It discusses the relevant statutes and case law, how the law applies to the facts in the case, and the party’s arguments based on the law as applied to the facts. It explains the legal reasons why the order or judgment of the lower tribunal was either correct or incorrect, and what specific result, or “relief,” the party wants in the appeal (i.e., what the party wants the appellate court to do). For example, an appellant may ask the appellate court to reverse the final judgment and return, or “remand,” the case to the lower tribunal for a new trial, whereas an appellee may ask the appellate court in the answer brief to affirm the final judgment. The argument should be supported by references to legal cases, statutes, and rules that support that appellate party’s argument that the lower tribunal decision was either correct or incorrect.

The argument is divided into specific legal issues. The argument section in the brief starts with an issue heading for each argument or point on appeal. In many cases, an appellant might only raise one or two specific issues. In other cases, the appellant might argue more than one or two issues, if he or she believes the lower tribunal made more errors. Each issue the appellant raises should have a reasonable basis in the facts and in the law. The appellant’s issue or issues should be clearly and concisely stated. If the appellant is arguing more than one issue, the appellant usually starts with the strongest point first. Under each issue heading, the appellant discusses the case law, statutes, and rules that deal with the issue for that section.

The appellee’s answer brief arguments respond to the argument issues raised in the initial brief. It often has the same or similar issue headings as the initial brief, to help the appellate court know which of appellant’s initial brief arguments the appellee’s answer brief is responding to. Like the initial brief, the appellee’s answer brief should explain how the law applies to the facts and present his or her arguments in support of the outcome he or she wants in the appeal (usually affirmance). The answer brief arguments should also include citations to the legal authorities, cases, and statutes the appellee believes supports his or her position and arguments in the appeal.

7. Conclusion.

In the conclusion, the party tells the court what result or relief he or she wants in the appeal (i.e., what the party is asking the appellate court to do in the case). It is usually only a sentence or two in length, and should not be longer than one page. For example, the conclusion in appellate brief in an appeal from a judgment entered after a trial might look like this:

Conclusion

The appellant requests this Court to reverse the final judgment entered below with instructions to hold a new trial.

8. Certificate of Service

The brief should contain a certificate of service, in which the party filing the brief with the court affirms that he or she has sent, or “served,” a copy of the brief to the opposing party (or their attorney if they have one) on a specific date and states the method of service, such as by mail, delivery, or service by e-mail (if the procedures for e-service are followed). The certificate of service must be signed by the appellate party and should include a signature block containing the appellate party’s name, address and telephone number. For example, a certificate of service might look like this:

I hereby certify that a true and correct copy of the foregoing document was furnished to _____________ (name of opposing party), at (address, city, state, zip, and/or e-mail address), by (email) (delivery) (mail) on ___________ (date).

JOHN DOE
222 N.W. 2nd Street
City, State 11111
Telephone: (234) 567-8901
By: ___________________
JOHN DOE

It is important for pro se litigants to remember that, generally, a party has to both file the brief with the court, and serve a copy on the opposing party. Pro se parties are generally permitted to serve documents by e-mail if they comply with certain requirements, which are set forth in detail in Florida Rule of Judicial Administration 2.516. In addition, most courts now allow (but do not require) electronic filing by pro se parties. See Florida Rule of Judicial Administration 2.525(c)-(d).

The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk’s office of the particular court to find out if electronic filing is allowed, and, if so, the requirements for electronic filing and service by e-mail. See also Florida Rules of Judicial Administration 2.516 and 2.525(c)-(d). Unless electronic filing and service by e-mail is available, a brief must generally be filed by mail or delivery to the court, and served by mail or delivery to the opposing party.

9. Certificate of Font Compliance.

According to Florida Rules of Appellate Procedure 9.210(a)(2), the font of the letters in the brief must be either Times New Roman 14-point font or Courier New 12-point font. In the certificate of compliance, the appellate party states that the font and type size used in the brief complies with this Rule and signs below the statement. A certificate of compliance might look like this:

Certificate of Compliance

I certify that the size and style of type used in this brief is (Times New Roman 14-point Font or Courier New 12-point Font) and complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

By:

JOHN DOE

ITEM 5D | THE REPLY BRIEF

The Florida Rules of Appellate Procedure do not require that the appellant file a reply brief, but an appellant often should file a reply brief to respond to the arguments in the answer brief. The appellant’s reply brief, if any, is due 20 days after the answer brief and responds to the answer brief arguments. The reply brief can be no more than 15 pages long, not counting the pages necessary for the Table of Contents, Table of Citations, Certificate of Service, Certificate of Font Compliance, and the signature block for the brief's author.

The reply brief typically includes the following sections:

1. Table of Contents
2. Table of Authorities
3. Reply Argument
4. Conclusion
5. Certificate of Service
6. Certificate of Font Compliance

The reply brief does not raise new arguments. Issues that were not raised first in the initial brief are generally waived. But, if new or different arguments are raised in the answer brief, the reply brief can respond to those argument. The key is that the reply brief responds to the answer brief arguments. It does not just repeat the initial brief, nor does it raise new arguments that were not in either the initial or answer brief. Although the appellant argues in the reply brief that the appellee’s answer brief arguments are incorrect, the appellant, like the appellee, must do so respectfully and without name calling or insults.

CHAPTER VI | CHECKLIST

ITEM 6 | CHECKLIST FOR APPELLATE BRIEFS AND GENERALLY PETITIONS IN THE DISTRICT COURTS OF APPEAL

As with the rest of this Handbook, this Checklist is NOT a substitute for reading the Florida Rules of Appellate Procedure and NOT a substitute for visiting each court’s website, at www.flcourts.org, to learn that particular court’s internal requirements.

Review the Florida Rules of Appellate Procedure and Applicable Florida Law.

☐	An appellate party reviews the Florida Rules of Appellate Procedure (“FRAP”), which can be obtained from a public library, law library, or on The Florida Bar’s website at http://www.floridabar.org/tfb/TFBLegalRes.nsf/. An appellate party needs Adobe Acrobat on their computer to view the Rules.
☐	An appellate party also reviews any other rules, statutes, or case law that may apply in the case.
☐	An Appellate party also reviews the specific procedures and requirements of the particular court where the appeal is filed (available on the court’s website and/or from the court’s clerk’s office).

Page Limits for All Briefs (FRAP 9.210(a)(5))

☐	1. Appellant’s initial brief can be no more than 50-pages long
☐	2. Appellee’s answer brief can be no more than 50-pages long
☐	3. Appellant’s reply brief can be no more than 15 pages long

Paper Size and Binding for All Briefs (FRAP 9.210(a)(1) and (a)(3))

☐	1. Standard size 8 1/2" x 11" paper, that is white, opaque, and unglossed
☐	2. Paper briefs are not stapled or bound (except by paperclip or rubber band)

Formatting for All Briefs (FRAP 9.210(a)(2))

☐	1. One-inch margin on all sides (courts may measure the margins)
☐	2. Typed briefs must be double spaced
☐	3. Print on only one side of paper
☐	4. Font must be either Times New Roman 14-point, or Courier New 12-point font
☐	5. If the brief is typed on a computer, it must certify that it meets the font requirements. The font certification goes after the certificate of service.

Cover Page for All Briefs (FRAP 9.210(a)(4))

Includes the following, in this order:

☐	1. Name of the appellate court at the top of the page (e.g. First District Court of Appeal, State of Florida)
☐	2. Appellate court case number (lower tribunal case number is also a good idea)
☐	3. Names of the parties and whether they are the appellant or the appellee, e.g.: Jane Doe, Appellant v. John Doe, Appellee.
☐	4. Title of the document (“Initial Brief of Appellant,” “Answer Brief of Appellee,” or “Reply Brief of Appellant”)
☐	5. Name of the lower court or tribunal which entered the order appealed (e.g., “Appeal from the 13th Judicial Circuit, Hillsborough County”)
☐	6. Name, address and telephone number of the pro se party filing the brief

What the Initial Brief Must Contain (FRAP 9.210(b))

☐	1. Cover Page – sets forth the information discussed above
☐	2. Table of Contents – lists the sections of the brief, including headings and subheadings identifying the issues raised in the appeal, with the page number where the argument on each issue begins
☐	3. Table of Authorities – lists the legal authorities cited in the brief with all pages on which each is cited, in this order: (a) cases are listed alphabetically with citations; (b) statutes; (c) other authorities, including rules of procedure
☐	4. Statement of the Case and Facts – discusses the facts and procedural history of the case, contains citations to the page in the appellate record where each fact discussed can be found or supported, and includes discussion of: (a) the type of case; (b) history of the case in the lower tribunal before the appeal; (c) the outcome in the lower tribunal, and (d) the facts relevant to the issues on appeal
☐	5. Summary of the Argument – previews the argument in 2 to 5 pages or less
☐	6. Standard of Review – briefly states the standard of review for each issue on appeal (this can be a separate section, or it can just stated at the beginning of each argument issue, but must be included in the brief)
☐	7. Argument – explains the appellant’s legal arguments for each issue heading listed in the table of contents, with citations to legal authorities supporting the arguments (unless the brief has a separate standard of review section, the standard of review for each issue should be stated at the beginning of each argument issue)
☐	8. Conclusion – tells the appellate court what remedy is sought on appeal (e.g. reverse, reverse and remand for a new trial, etc.)
☐	9. Certificate of Service – certifies a copy of the brief was served (sent) to the opposing party (see below)
☐	10. Certificate of Font Compliance – certifies the brief complies with the font style and size requirements
☐	11. Signature block – the brief must be signed by the party submitting the brief

What the Answer Brief Must Contain (FRAP 9.210(c))

☐	1. Cover Page – as set forth above
☐	2. Table of Contents – lists the issues presented as stated by the appellant in the initial brief and the page numbers on which argument begins for each issue
☐	3. Table of Authorities – lists the legal authorities cited with page references to: (a) cases listed alphabetically with citations; (b) statutes; (c) other authorities, including rules of procedure
☐	4. Statement of the Case and Facts – can be omitted if appellee agrees with appellant’s statement, but is usually included to state the facts from appellee’s perspective; it discusses the facts and procedural history, and has citations to the page in the appellate record where each fact can be found or supported
☐	5. Summary of the Argument – previews the argument in 2 to 5 pages or less
☐	6. Standard of Review – briefly states the standard of review for each issue on appeal (this can be a separate section, or it can just stated at the beginning of each argument issue, but must be included in the brief)
☐	7. Argument – responds to the initial brief and explains the appellee’s legal arguments for each issue, with citations to legal authorities supporting the arguments (unless the brief has a separate standard of review section, the standard of review for each issue should be stated at the beginning of each argument issue)
☐	8. Conclusion – tells the appellate court what the appellee wants the court to do with the appeal (e.g. affirm the lower tribunal’s decision).
☐	9. Certificate of Service – certifies a copy of the brief was served (sent) to the opposing party (see below)
☐	10. Certificate of Font Compliance – certifies the brief complies with the font style and size requirements
☐	11. Signature block – the brief must be signed by the party submitting the brief

What the Reply Brief Should Contain (FRAP 9.210(d))

A reply brief is not required, but one should usually be filed to respond to the answer brief. A reply brief should not raise new arguments nor merely repeat the arguments in the initial brief. Rather, its purpose is to respond to the arguments made in the answer brief.

☐	1. Cover Page – as set forth above
☐	2. Table of Contents – lists the issues presented as stated by the appellant in the initial brief and the page numbers on which argument begins for each issue
☐	3. Table of Authorities – lists the legal authorities cited, with page references to: (a) cases listed alphabetically with citations; (b) statutes; (c) other authorities, including rules of procedure
☐	4. Reply Argument – responds to the answer brief arguments
☐	5. Conclusion – tells the appellate court what result the appellant wants
☐	6. Certificate of Service – certifies a copy of the brief was served (sent) to the opposing party (see below)
☐	7. Certificate of Font Compliance – certifies the brief complies with the font style and size requirements
☐	8. Original brief must be signed by the party submitting the brief

Timely Filing and Service for All Briefs (FRAP 9.110(f) and 9.210(f))

☐	The appellate party must serve the brief (send it by mail, hand delivery, or e-mail if e-service is available) to the other party and file it with the court within the times required by the Rules. The court may reject the brief if it is not timely (see FRAP 9.410). If an appellate party needs more time to write the brief, he or she must file a motion for extension of time under FRAP 9.300(a) — at least a few business days before the brief is due — asking the court for additional time.
☐	1. Appellant’s initial brief: 70 days from filing notice of appeal (unless the court grants a motion for extension of time filed by the appellant)
☐	2. Appellee’s answer brief: 20 days after service of appellant’s initial brief (unless the court grants a motion for extension of time filed by the appellee)
☐	3. Appellant’s reply brief: 20 days after service of appellee’s answer brief (unless the court grants a motion for extension of time filed by the appellant)
☐	Serve (by mail, hand delivery, or e-mail if e-service is available) a copy of the brief on the attorney for each party or, if a party is not represented by an attorney, serve a copy on each unrepresented party.
☐	File the brief with Appellate Court the same day as service (by mail, delivery, or electronic filing if e-filing is available)

It should be sufficient to file one original paper copy of the brief with the appellate court. But a party should contact the clerk’s office for the specific court (and/or visit their website) to find out if multiple paper copies are still required and/or if there may be additional requirements in that court for filing a brief.

Pro se parties are generally permitted to serve documents by e-mail if they comply with certain requirements, which are detailed in Florida Rule of Judicial Administration 2.516. In addition, most courts now allow (but do not require) electronic filing by pro se parties. See Florida Rule of Judicial Administration 2.525(c)-(d). The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk’s office of the particular court to find out if electronic filing is allowed, and, if so, the requirements for electronic filing and service by e-mail. See also Florida Rules of Judicial Administration 2.516 and 2.525(c)-(d). Unless electronic filing and service by e-mail is available, a brief must generally be filed by mail or delivery to the court, and served by mail or delivery to the opposing party.

CHAPTER VII | TIMELINE (FINAL ORDERS)

ITEM 7 | TIMELINE FOR APPEALS FROM FINAL ORDERS OF LOWER TRIBUNALS

This timeline highlights the time for filing documents in proceedings that invoke the appellate jurisdiction of the Florida Supreme Court, the district courts of appeal, the circuit courts, and agencies. For purposes of this timeline, and throughout this Handbook, the timeline for filing an appeal is measured from the rendition of an order, which occurs when all three of the following events have been done:

(1) the lower tribunal’s order is reduced to writing;
(2) the written order is signed by the judicial officer; and
(3) the written, signed order is filed with the clerk of the lower tribunal that issued the order.

See Florida Rule of Appellate Procedure 9.020(i).

With some exceptions, in most cases it is the date of rendition of an order, and not the date it was served or mailed to the parties, that matters in calculating the time for filing a notice of appeal. Generally, a party seeking to appeal has 30 days from rendition of a final order within which to file a notice of appeal. When computing time, counting begins on the day following the event that triggers the running of time. See Florida Rule of Appellate Procedure 9.420(e) (adopting Florida Rule of Judicial Administration 2.514 for computing time). The period of time includes the last day of that time-frame, unless the last day falls on a Saturday, Sunday, or legal holiday. Holidays are only those legal holidays listed in the Rule. If the last day falls on a Saturday, Sunday, or legal holiday, the final day to file or act is the next day that is not a Saturday, Sunday, or legal holiday. If the time to act is less than seven days, then Saturdays, Sundays, and legal holidays are not counted in the calculation. Thus, if the court or other lower tribunal renders an order on January 1st, the notice of appeal is generally due no later than January 31st. If January 31st is a Sunday, the notice is generally due no later than Monday, February 1st. This timeline is based on the 2015 version of the Florida Rules of Appellate Procedure. The Florida Rules of Appellate Procedure are amended from time to time. So, it is always important to consult the most current version of the Rules to be certain of the deadlines. In addition, it is better to file a notice of appeal well before any deadline to reduce the chance of missing that deadline. If a notice of appeal is filed late, the appellate court likely will not have jurisdiction to consider it, and the appeal may be dismissed.

The Florida Rules of Appellate Procedure should be consulted for the specific time for filing documents involving original proceedings, petitions for writs, procedures in death penalty appeals, review of collateral post-conviction criminal appeals, juvenile proceedings in dependency and termination of parental rights proceedings, and proceedings that seek review of probate orders and guardianships, administrative actions, and orders granting a new trial.

CHAPTER VIII | APPELLATE PROCESS

ITEM 8A | INTRODUCTION

The party who loses in the trial court or lower tribunal usually has the right to appeal to a higher court. On appeal, the higher court, called the appellate court, reviews the decision of the lower tribunal, and will generally either uphold or overturn it (affirm or reverse). That process of review is known as the appeal or appellate process. This Chapter describes when and how an appeal from a final judgment or order is begun.

Appeals are an important part of the American legal system. The legal systems of all states in this country allow for at least one level of appellate review as a matter of right. The right to seek appellate review comes from the United States and Florida Constitutions. Appellate courts are set up only to review and correct errors committed below. Appeals provide checks on the trial process and help to guide judges on the law in future cases. Lower tribunal judges understand this.

To appeal from an order or judgment of a lower tribunal, the party must have lost, or at least been negatively affected by the order or judgment (this can include not receiving all of the relief requested in the trial court). The appealing party is called the appellant. To prevail in an appeal, the appellant has to show the appellate court that errors occurred in the lower tribunal proceedings, and that such errors were bad enough to reverse the final judgment or order entered in the case. Thus, it is the appellant’s responsibility to (1) identify the problem or error, (2) persuade the appellate court that there is, in fact, error in the final order, judgment, or verdict appealed, and (3) show that the error is so serious that it needs to be sent back to the lower tribunal and corrected, or “reversed and remanded.”

The party opposing the appeal, called the appellee, is the party that agrees with the outcome of the order or trial and will argue during the appeal that the judge's or the jury's decision should be left alone, or “affirmed.” In some cases, the appellee may also disagree with a part of the final order, judgment, or verdict and may file what is called a “cross-appeal.”

The highest appellate court in Florida is the Florida Supreme Court. The next highest appellate courts in Florida are called “District Courts of Appeal.” There are five district courts of appeal, covering specific adjoining counties:

the First District Court of Appeal,headquartered in Tallahassee; the Second District Court of Appeal,headquartered in Lakeland with a branch in Tampa; the Third District Court of Appeal,headquartered in Miami; the Fourth District Court of Appeal,headquartered in West Palm Beach; and the Fifth District Court of Appeal,headquartered in Daytona Beach.

Circuit Courts may also act as appellate courts in certain types of cases; for example, in an appeal from a county court decision, or when reviewing the actions of a county government agency.

The appellate court generally reviews the actions of the lower tribunal, not the actions of the parties. The appellate court focuses on whether the lower tribunal made the right decision. There are a variety of possible outcomes to an appeal. In deciding an appeal, the appellate court may, for example:

• Find no error and “affirm” the lower tribunal's decision, judgment, or order, thereby declaring the decision was correct and will stand as is.

• Find error, but hold it was “harmless,” meaning the error did not affect the outcome of the case, and so the lower tribunal’s decision is affirmed just as if there was no error.

• Find error and “reverse” the lower tribunal’s decision, which often (but not always) also results in “remanding,” or sending the case back, to the lower tribunal with instructions regarding further proceedings, such as a new trial or hearing.

• Find error and “modify” the lower tribunal’s decision, which also often (but not always) results in “remanding,” or sending the case back, to the lower tribunal with instructions regarding further proceedings.

• Affirm in part and reverse in part the lower tribunal’s decision, and remand with directions for further proceedings in the lower tribunal.

If the appellate court is reversing and/or remanding the case, it will often explain its decision and the outcome in the case with a written decision, or “opinion.” The appellate court may also explain its decision in a written opinion if it affirms, but it does not have to. If the appellate court is affirming, it can simply issue a short order stating that the lower tribunal’s decision or judgment is “affirmed” (this is typically known as a “per curiam” affirmance).

ITEM 8B | THE HANDBOOK

As emphasized from the beginning of this Handbook, appellate practice is a complex, specialized area of law that requires detailed study and research. This book is merely a beginning guide. A self-represented, “pro se,” party who wants to file an appeal should seriously consider retaining an appellate attorney if at all possible. A party served with a notice that the opposing party is appealing the decision should also retain an appellate attorney when at all possible.

Just like appellate judges who work exclusively on making appellate decisions, there are appellate lawyers who only (or mainly) practice appellate law. One reason for this is that arguing an appeal is different from representing a party in a trial, and there are very different rules for taking an appeal. If a party cannot afford appellate counsel, but had the right to have a lawyer appointed to represent that party at trial, that party also usually has the right to have one appointed to represent that party on appeal. Otherwise, a self-represented “pro se” appellant or appellee will have to do deep research of the appellate and trial procedures and Florida law.

A pro se party who cannot retain an appellate attorney (or any attorney) is still responsible to follow the rules of appellate procedure and Florida law. Thus, while this Handbook can serve as a beginning point for a pro se litigant, a pro se party should not only read this Handbook from cover to cover, but also review the Florida Rules of Appellate Procedure, Florida Statutes, and Florida case law that may apply to his or her case.

ITEM 8C | THE FINAL JUDGMENT RULE

A “final” judgment or order is a written order entered by a trial court (or “lower tribunal”) which ends the case and leaves nothing left to be done except to follow what the final judgment or order requires the parties to do. In contrast, a “non-final” order does not end the case and usually cannot be appealed right away. For example, if the trial court rules against a party on an issue or motion before trial or at trial, the party normally has to wait, and often cannot appeal, until the trial is over and the court has entered a final judgment. After that, the party normally has a right to bring an appeal to challenge the final judgment, and, in the appeal from the final judgment, the party usually can also challenge any ruling or non-final order entered before the final judgment. So, with some exceptions, appeals generally can only be brought from a final judgment. This is called the "final judgment rule." Some of the exceptions to the final judgment rule are covered in other Chapters of this Handbook, such as Chapter 9 on Appeals from Non-Final Orders, and Chapter 10, Extraordinary Writs.

The final judgment rule is very important because an appeal has deadlines and time limits that must be followed. For example, there is a time limit for filing an appeal, and a party who fails to file an appeal within that time limit may lose or “waive” the right to appeal. Thus, one of the important reasons to consult or retain an appellate attorney, if one is available, is to find out whether a specific order can be appealed, and, if so, whether the appeal has to be filed right away.

ITEM 8D | TIPS FOR DETERMINING FINALITY

Not every decision by a judge is final. Usually, only final judgments, or orders which end the case once and for all, are appealable. If the decision or order does not end the case, it probably is not a final order or judgment. During the course of a lawsuit, from the filing of the complaint through the entry of a final judgment, a lower tribunal judge usually makes many decisions that are not “final.” For example, if a party does not like a pre-trial ruling, such as on a discovery issue, the party must normally wait until the trial or the case is over and a final judgment is “rendered,” before bringing an appeal to challenge the ruling. As another example, when a judge denies a motion to dismiss or for summary judgment, the case continues to move along in the lower tribunal. That is why orders denying such motions are usually considered non-final orders. Orders granting such motions may or may not be final —– it depends on if the order just grants the motion, or if it also orders a final judgment (of dismissal or summary judgment) in favor of one of the parties.

Whether an order is “final” for purposes of an appeal is a confusing area of appellate law, especially in civil cases. What is final is not always clear. If there is any doubt about whether the order is final, a party should usually make sure to appeal from it within 30 days, to reduce the risk of waiving an appeal if it turns out the order was final (meaning it had to be appealed within 30 days, if ever). The following questions may help a party determine if the order is final:

1. Is the order in writing, signed, and dated?
2. Has the order been filed with the clerk’s office?
3. Does the order end the case as a whole?
4. Other than the lower tribunal considering an attorney’s fees or costs motion, does the order leave nothing more for the lower tribunal to decide?
5. Does the order sound final? Does it state “for which let execution issue” or “go hence without a day” or “final judgment” or “dismissal of all claims with prejudice” or “case closed”?

If the answer to these questions is “yes,” the order is likely final. The below chart gives a few examples of some orders that are usually final and some that are usually non-final:

Examples of Usually Final Orders:

Examples of Usually Non-Final Orders:

• Order dismissing the case with prejudice • Summary final judgment which enters judgment in favor of a party • Final judgment entered on a jury’s verdict after a trial • An order both awarding a party entitlement to attorney’s fees and determining the amount (or an order later setting the amount after entitlement was decided) • An order denying a motion for attorney’s fees after the final judgment • A final judgment awarding court costs and setting the amount

• Order granting a motion to dismiss which does not actually dismiss the case • Order granting a motion to dismiss without prejudice to amend the complaint • Order granting a motion for summary judgment which does not actually enter judgment for one party or the other, or which does not end the case • Orders denying motions to dismiss or for summary judgment • Orders ruling on discovery matters and other pre-trial orders • Orders awarding entitlement to attorney’s fees but with amount to be decided later

These are just a few examples of the kinds of decisions appellate courts generally consider final, and those usually considered non-final. The table does not cover every possible order a party can appeal. A party who wants to appeal an order must research the type of order, locate appellate decisions, and find out whether that type of order is considered final and appealable or non-final and not appealable.

In sum, a final decision, also called a final judgment or final order, ends the case in the lower tribunal, usually by entering a judgment in favor of one party and against another. When in doubt, parties should retain an appellate attorney promptly after receiving the order to see whether the order is final and appealable. If the order is not final and appealable, or if a notice of appeal is not timely filed, the appellate court will not have jurisdiction over the appeal and the appeal will be dismissed.

ITEM 8E | HOW, WHEN, AND WHERE TO FILE AN APPEAL FROM A FINAL ORDER OR JUDGMENT

The right to appeal a final decision does not last forever. Similar to a statute of limitations, every court has a rule controlling the amount of time a party has to file an appeal after the final judgment. In Florida Courts, a lower tribunal's final decision generally must be appealed within 30 days, or the right to appeal is forever lost. See Florida Rules of Appellate Procedure 9.110(b)&(d) (civil cases), 9.140(b)(3) (criminal cases), and 9.900(a)-(f) (format).

An appeal is generally started by filing a document called the “notice of appeal” in the lower tribunal (not the appellate court), with a copy of the order being appealed attached, within 30 days of when the order or judgment being appealed was entered. The party appealing, the appellant, must also pay the filing fee. The clerk’s office of the lower tribunal should have a list of how much the filing fees are for an appeal. The notice of appeal must generally be filed personally at the lower tribunal’s clerk’s office, unless electronic filing is permitted. A notice of appeal generally has to be received and recorded by the lower tribunal’s clerk before the 30-day deadline for the appeal (not just put in the mail). A parties can usually bring a second copy of the notice of appeal and ask the deputy clerk in the clerk’s office to stamp a date on it for the party’s own records.

The 30-day time limit for filing a notice of appeal is a “jurisdictional” deadline. This means that if the notice of appeal is not filed within the time limit, the appellate court usually will not have the power, or “jurisdiction,” to hear the appeal, and the appeal will be dismissed. The rest of the deadlines, such as the time limits for paying the filing fee, or for filing the appellate briefs, are also important and should be followed, but many are not “jurisdictional.” This means the appellate court still has the power to hear the appeal, but it may decide to dismiss for a party’s failure to follow the rules and procedures for the appeal.

An example of the general format for a notice of appeal is contained in Florida Rule of Appellate Procedure 9.900 (forms). A notice of appeal in a civil case might look like this:

IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

Mr. Smith, Defendant/Appellant v. Ms. Jones, Plaintiff/Appellee	Case No.____________
NOTICE OF APPEAL
Notice is hereby given that Defendant/Appellant, Mr. Smith, appeals to the Second District Court of Appeal the order of this court rendered on November 2, 2015. The nature of the order is a final judgment which is reviewable as a final order under Florida Rule of Appellate Procedure 9.110. [Attach a copy of the order appealed, per Rule 9.110(d)].
	________________________ Mr. John Smith [address, e-mail address, & phone number]

Once the notice of appeal is filed with the clerk of the lower tribunal, the lower tribunal will transfer the case to the appellate court for the appeal. After the case is transferred to the appellate court, the rest of the proceedings for the appeal take place in the appellate court.

ITEM 8F | AFTER FILING THE NOTICE OF APPEAL, WHAT HAPPENS NEXT?

After filing a notice of appeal, the appellant then has 10 days to file what are called "directions to the clerk" and "designations to the court reporter." See Florida Rule of Appellate Procedure 9.200(a)-(b). The directions to the clerk are directions telling the lower tribunal clerk what the appellant wants to have included in the record on appeal. Putting together the record on appeal is discussed in detail in Chapter 3 of this Handbook.

The party opposing the appeal, the "appellee," generally has 10 days from the filing of the notice of appeal to file a "cross-appeal." A cross-appeal is filed if the appellee believes the lower tribunal made a mistake in not granting all of the relief the appellee wanted. See Florida Rule of Appellate Procedure 9.110(g) (civil and final administrative law cases); Florida Rule of Appellate Procedure 9.140(b)(4) (criminal cases). If a cross-appeal is filed, the parties are called, "appellant/cross-appellee" and "appellee/cross-appellant."

It is important to understand the difference between a notice of appeal and a notice of cross-appeal. A notice of cross-appeal is only filed in cases where the appellee believes the lower tribunal made a mistake in not granting all of the relief the appellee wanted in the specific final judgment or final order being appealed. But, if the appellee believes there is another, separate final order or final judgment in the same case that was erroneous or did not grant all of the desired relief, then the appellee must file his or her own notice of appeal from that order, not a notice of cross-appeal. And, again, any notice of appeal must be filed within 30 days of the date of that final judgment or order.

Once the notice of appeal is filed, the lower tribunal clerk prepares the record on appeal and sends it to the appellate court. Fifty days after the notice of appeal is filed, the lower tribunal sends the appellate parties (the appellant and the appellee) an "index” to the record on appeal. The index to the record on appeal is a list of everything in the lower tribunal/court file, with page numbers, that the clerk of the lower tribunal will be sending to the appellate court. The record on appeal, which is discussed in more detail in Chapter 3, is made up of the documents—such as the pleadings, pre-trial motions, orders, discovery, and evidence (“exhibits”)—that were filed and made part of the “record” in the lower tribunal. It usually also has transcripts of the hearings that the lower tribunal judge held and transcripts of any trial, if the hearing or trial was “transcribed” (typed-out by a court reporter), and if one of the parties filed those transcripts with the lower tribunal. See Florida Rule of Appellate Procedure 9.200.

There are also time limits for filing appellate briefs. Appellate briefs are the written arguments of the appellant and the appellee that are presented to the appellate court. The arguments in an appellate brief must be limited to the matters contained in the appellate record. The appellant's initial brief is generally due 70 days after filing the notice of appeal. See Florida Rule of Appellate Procedure 9.110(f). The appellee’s answer brief is then due 20 days after the initial brief, and the appellant’s reply brief is due 20 days after the answer brief. See Florida Rule of Appellate Procedure 9.210(f). If the appellant needs more time to file a brief, the appellant usually may file a motion for an extension of time with the appellate court (usually for 30 or 60 days), so long as the motion for extension is filed before the deadline for the brief. Before filing a motion for an extension, the appellant is generally required to contact the opposing party to ask if the opposing party will agree or object to the motion for an extension. The motion for extension should, in addition to requesting the extension, also state whether the opposing party objects or agrees to the extension. The same general procedure for seeking extensions would also apply to the answer brief and the reply brief.

The appellate briefs are filed with the appellate court before oral argument. Oral argument is like a formal hearing before a trial judge. The main differences are that appellate oral arguments are usually heard by a “panel” of three judges and arguments are limited to those contained in the appellate briefs and supported by the appellate record—no new evidence or arguments can be made. The party seeking to present oral argument must file a "request for oral argument" in a separate document, generally not later than 10 days after the reply brief is due. See Florida Rule of Appellate Procedure 9.320. After the parties have filed their briefs, and if a request for oral argument was made, the appellate court will decide whether to grant oral argument. Appellate courts do not always grant a request for oral argument. If oral argument is not granted, the case will be decided based on the arguments in the appellate briefs, without holding an oral argument. If the appellate court grants a request for oral argument, the appellate court will send an order or notice of oral argument, which will state the date and time of the oral argument and how many minutes each side will have to argue their case.

ITEM 8G | WHAT DOES THE APPELLATE COURT REVIEW?

Appellate courts are limited in what they can review and decide. The appellant must outline the specific question or issue it wants the appellate court to answer. The question may be as broad as, "Did the lower tribunal err in deciding in favor of the plaintiff?" or it may be very specific. Narrowing the question presented to the appellate court makes it easier for the court to fully understand what it is being asked to review and do.

It is sometimes said that, in an appeal, the actions of the lower tribunal judge are on trial, not the actions of the parties to the original litigation. In fact, the parties do not have a chance to re-litigate the case before the appeals court. An appeal is not a second trial. The trial level is the only opportunity to submit evidence, examine and cross-examine witnesses, and argue the facts and the law of the case. The appeals court only considers whether the trial was conducted properly and whether the outcome was reached by proper application of the law to the facts.

Only issues that were raised first in the lower tribunal can be argued at the appellate level. The claimed errors must have been brought to the lower tribunal's attention while the lower tribunal still had the opportunity to correct the mistake. For example, if the appellant (or his or her attorney) did not object to the error during trial, the issue has been "waived" on appeal or otherwise has not been “preserved” for review by the appellate court.

At the appellate level, the court is restricted to the record before it. See Florida Rule of Appellate Procedure 9.200. Only the evidence, argument, testimony, and objections considered by the lower tribunal may be considered by the appellate court. This body of pleadings and evidence are called the record. Every piece of evidence and every argument made by the parties' lawyers is recorded into one big document, the record, which is said to "close" once the trial is over and the final judgment issued. Once the record is closed, no more evidence can be included. Also, no more objections to evidence can be made. There are a few exceptions to these general rules, but for the most part, a party cannot offer new evidence or new objections for the appellate court to consider that were not made to the lower tribunal.

The appellate court cannot reverse the decision of the lower tribunal or trial court based on a new document that the trial judge never got to see. The trial was the only opportunity to present that document. So, for example, a party can argue on appeal that the trial court should have allowed certain a document into evidence at trial, but only if the party presented the document to the trial court and objected when the trial court refused to consider it or allow it into evidence, and, after the objection was overruled also made sure the document was still filed in the court file and included in the record on appeal.

In sum, appellate courts do not take new evidence. Appellate courts decide whether the trial judge made errors based on what happened in the lower tribunal. Appellate also generally do not consider new arguments. If an argument or objection was not made to the lower tribunal, the appellate court usually will not consider it for the first time on appeal, unless the error was “fundamental,” meaning it destroyed the fairness of the case.

ITEM 8H | A FEW MORE IMPORTANT POINTS ABOUT PRESERVING ARGUMENTS FOR AN APPEAL

As discussed above, an appellate court generally does not consider new arguments or objections for the first time on appeal, except for fundamental errors. To preserve an issue, a party usually has to object when the issue first comes up, to give the lower tribunal a chance to fix the problem. Often, to be preserved, the same argument or objection also has to be raised again after the trial or decision in the lower tribunal, such as in a motion for new trial or rehearing. Thus, to be preserved, an argument or objection often has to be raised both when the issue first comes up (usually at a hearing or trial) and again after the trial or decision.

In a civil case where a jury trial is held, a motion for a new trial has to be filed within 15 days after the jury’s verdict (not the judgment, which is entered later). See Florida Rule of Civil Procedure 1.530(b). In a jury case, most types of objections have to be raised again in timely a motion for new trial to preserve them for appeal (this is in addition to objecting at trial or whenever the issue first came up). Examples include objections to allowing or disallowing specific evidence at trial, giving or withholding requested jury instructions, and improper closing arguments, to name just a few.

In a civil case decided by the judge (without a jury trial), a motion for rehearing has to be filed within 15 days after the final order or judgment. See Florida Rule of Civil Procedure 1.530(b). Objections to the judge’s failure to consider certain evidence or failure to state enough findings of fact in the final order are examples of the types of objections that should usually be raised again in a motion for rehearing from a final order or judgment.

Filing a motion for new trial, a motion for rehearing, and a few other types of post-trial motions, may extend the time for filing the appeal—but only if the motion was both timely filed and specifically allowed by the rules of procedure. See Florida Rule of Appellate Procedure 9.020(i). Technically, such a motion does not really extend the time for taking the appeal; rather, the 30-day deadline for filing the notice of appeal just does not start until the lower tribunal enters an order ruling on the motion. However, if the motion for new trial, motion for rehearing, or other post-trial motion was either untimely or not specifically allowed by the rules of procedure, the 30-day deadline to file an appeal will not be extended in any way, and will instead run from the date of the final order or judgment as usual (and not from an order ruling on the untimely, unauthorized motion). One way to reduce the risk of either failing to preserve an issue or failing to timely file the appeal may be to:

(1) file a motion for new trial, rehearing, or other post-trial motion, and then
(2) after filing the motion go ahead and also file the notice of appeal.

See Florida Rule of Appellate Procedure 9.020(i).

ITEM 8I | FLOWCHART FOR FINAL APPEALS

Entry of a final appealable order

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within 30 days of final order:

appellant files notice of appeal with lower tribunal and pays the filing fee

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within 10 days of notice of appeal:

appellant files “directions to the clerk of the court” and “designations to court reporter”

appellee files a notice of appeal to cross-appeal if challenging same order

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within 50 days of notice of appeal:

clerk of the appeals division prepares the record on appeal and the index to the record on appeal

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within 70 days of the notice of appeal:

appellant files initial brief with appellate court and sends (serves) a copy to appellee

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within 20 days of the initial brief:

(plus five days if the initial brief was sent/served by U.S. mail or email)
appellee files initial brief with appellate court and sends (serves) a copy to appellant

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within 20 days of the answer brief:

(plus five days if the initial brief was sent by U.S. mail or email)
appellant files reply brief with appellate court and sends (serves) a copy to appellee

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no later than the date the reply brief is due:

all motions for appellate attorney’s fees are filed with appellate court and sent (served) to opposing party (many miss this deadline)

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within 10 days after the reply brief is due:

any request for oral argument is filed and sent (served) to opposing party

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clerk of the appellate court may schedule the appeal for oral argument

(no specific time frame when oral argument is scheduled)

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oral argument is presented, if scheduled by appellate court

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appellate court issues an opinion

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within 15 days from the date of the opinion:

any post-opinion motions for rehearing, rehearing en banc, or certification are filed and served

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appellate court issues a decision on any post-opinion (no set time)

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within 15 days of a decision or order denying any post-opinion motion:

appellate court issues its mandate ending the case (and returning jurisdiction to lower tribunal)

CHAPTER IX | APPEALLING NON-FINAL ORDERS

ITEM 9A | INTRODUCTION

Some orders can be appealed before final judgment, and a person does not always have to wait for a final order or for the case to be over to appeal. That is, in certain situations, appeals of “non-final” orders may be allowed. The kinds of non-final orders that can be appealed immediately depend on the type of case and the type of order. The non-final orders that can be appealed are limited to those listed and described in Florida Rule of Appellate Procedure 9.130.

They include orders that:

1. concern venue (i.e., the county or location of the lawsuit);

2. grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

3. determine the jurisdiction of the person (i.e., whether the court has authority over the parties);

4. determine the right to immediate possession of property;

5. determine, in family law matters:

a) the right to immediate monetary relief,
b) rights or duties regarding child custody or time-sharing in a parenting plan, or
c) that a marital agreement in invalid in its entirety;

6. determine whether a party is entitled to arbitration, or to an appraisal under an insurance policy;

7. determine that, as a matter of law, a party is not entitled to workers' compensation immunity from the lawsuit;

8. determine whether or not to certify a class (i.e., as in a class action lawsuit);

9. determine that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;

10. determine that a governmental entity has taken action that has inordinately burdened real property under the Bert Harris Property Rights Protection Act, found in section 70.001, Florida Statutes;

11. determine the issue of forum non conveniens (inconvenient forum or location for the lawsuit);

12. determine that, as a matter of law, a party is not entitled to sovereign immunity; or

13. grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership.

Generally, a district court of appeal does not have jurisdiction over, and cannot review, any non-final orders that are not listed in rule 9.130. It should be noted that orders disposing of motions that suspend rendition of a final order are not reviewable separately from a review of the final order, provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the same method as for a final appeal.

ITEM 9B | TIME FOR APPEALING A NON-FINAL ORDER

A party must file a notice of appeal of a non-final order in the lower tribunal clerk’s office within 30 days of the date that the non-final order is rendered, meaning the date the order is signed and filed with the lower tribunal’s clerk’s office. Unlike a motion for rehearing of a final order, a motion for rehearing of a non-final order will not stop, or “toll,” the 30-days-to-appeal clock. Thus, the notice of appeal of a non-final order will still need to be filed within 30 days of the date the order is rendered, even if a party asks the trial judge to reconsider or rehear the order to be appealed.

Some non-final orders are entered after a final order is entered. Those non-final orders are only reviewable or appealable if they fit within one of the categories set out in Florida Rule of Appellate Procedure 9.130, discussed above. If an order does not fit into one of those categories, a party usually must wait for a later final order ending the case or proceeding in order to appeal. Even if a party cannot appeal a non-final order right away, the party can still ask the appellate court to review any non-final order in an appeal from the later final order or judgment.

In addition, if a party cannot take an immediate appeal from a non-final order, there may be other ways to try to get an appellate court to review the order before there is a final judgment. A party may ask the appellate court to review a particular order by filing an extraordinary writ. See Chapter 10, Extraordinary Writs.

In some cases, an order may make the case final as to one or more parties, even though the case is continuing against other parties. If an order ends the case as to some of the parties, but the case is still continuing as to other parties, a party may appeal that order. One example is an order dismissing a case with prejudice against one party, but not against other parties. That kind of an order may be a final judgment as to one party, but not as to others. This is usually called a partial final judgment. Appeals from partial final judgments that end the case against one party, but let it continue against other parties, are still appeals from final order or judgments, not appeals of nonfinal orders. Appeals from final orders are discussed in Chapter 8, the Appellate Process Concerning Final Appeals.

Again, if a party does not appeal from a non-final order that is listed in Florida Rule of Appellate Procedure 9.130 as appealable before final judgment is entered, that party does not lose the right to appeal after final judgment. That party can still get initial review of that non-final order on appeal from the final order or final judgment in the case. However, if the order makes the case final as to one or more parties, the party wanting to appeal that order must take any appeal as to those parties at once or lose the right to appeal at a later time. In other words, if it’s a nonfinal order, it can be challenged in an appeal from the final judgment. But if it’s a final order, it must be appealed within 30 days.

A party can appeal more than one non-final order in a single appeal if all the orders being appealed were timely filed within 30 days of that date on which each order was entered. In other words, multiple non-final orders may be reviewed by a single notice of appeal if the notice is timely filed as to each of those non-final orders.

ITEM 9C | WHERE THE APPEAL NEEDS TO BE FILED AND WHAT A NOTICE OF APPEAL LOOKS LIKE

The notice of appeal of a non-final order is filed the same way as in final appeals. See Chapter 8, the Appellate Process and Final Appeals; Chapter 3, Pulling Together the Record on Appeal. In most cases, a party must file the notice of appeal, together with the filing fees, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. The notice must be designated as a notice of appeal of non-final order.

An example of the general format for a notice of appeal is contained in Florida Rule of Appellate Procedure 9.900 (forms). A notice of appeal in a civil case might look like this:

IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

Mr. Smith, Defendant/Appellant v. Ms. Jones, Plaintiff/Appellee	Case No.____________
NOTICE OF APPEAL
Notice is hereby given that Defendant/Appellant, Mr. Smith, appeals to the Second District Court of Appeal the order of this court rendered on November 2, 2015. The nature of the order is a non final order which is reviewable as a final order under Florida Rule of Appellate Procedure 9.130 (specify subsection). [Attach a copy of the order appealed, per Rule 9.130(c)].
	________________________ Mr. John Smith [address, e-mail address, & phone number]

The notice of appeal should also include a certificate of service, which might look like this:

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was furnished to _____________ (name of opposing party), at (address, city, state, zip, and/or e-mail address), by (email) (delivery) (mail) on ___________ (date).
	Mr. John Smith 222 N.W. 2nd Street City, State 11111 Telephone: (234) 567-8901 ________________________ Mr. John Smith

Note that if it is the defendant who is appealing, the defendant’s name is listed first in the case name, or “caption,” of the notice of appeal (instead of the plaintiff’s name). A conformed copy of the order(s) identified in the notice of appeal should be enclosed with the notice.

ITEM 9D | THE MAIN WAYS THAT A NON-FINAL APPEAL IS DIFFERENT FROM A FINAL APPEAL

While the non-final appeal is pending, the lower tribunal proceeding will keep going. This means that unless a stay order is entered, the lower tribunal may continue moving forward with and deciding all matters, including trial or final hearing. The only thing the lower tribunal cannot do while the appeal is pending is enter a final order disposing of the case. If the appeal is about questions of jurisdiction or venue, the lower tribunal will usually grant a motion for a stay, but motions seeking a stay should be filed promptly. See Chapter 11, Stays Pending Review.

There are two other main ways that an appeal from a non-final order in a civil case differs from an appeal after final judgment. First, the appellant's initial brief is due served within 15 days of filing the notice of appeal, rather than 70 days. (But the time for the appellee’s answer brief and the appellant’s reply brief remains the same as in a final appeal). Secondly, in a non-final appeal, unlike appeals from final orders or judgments, the clerk of the lower tribunal does not prepare a record on appeal and send it to the appellate court. Instead, the appellant in a non-final appeal must put together an “appendix” containing the important documents that the appellate court needs to have to decide the non-final appeal. The appendix is filed with the court and a copy served on the other parties at the same time as the initial brief. See Florida Rule of Appellate Procedure 9.220.

The appendix in a non-final appeal must contain the order that the appellant wants the appellate court to review, and the relevant pleadings, motions, transcripts and other documents on record that the appellant needs to understand the case and decide the issues on appeal. It must also contain an index, or table of contents, in the beginning of the appendix to help the appellate court find the specific items that the appellant wants the appellate court to consider. The appendix is usually separate from the brief and has its own cover page and certificate of service. If the appellate court determines that the appendix is incomplete, it may direct a party to supplement the appendix with the missing parts of the lower tribunal file that the appellant decides it needs to review the non-final appeal.

ITEM 9E | SPECIAL ISSUES FOR NON-FINAL APPEALS IN CRIMINAL CASES

In criminal cases, a defendant may generally appeal, in addition to final judgments (including withholding of adjudication and sentences), orders entered after final judgment or after a finding of guilt. Those orders include orders revoking or modifying probation or community control, or both, or orders denying relief in postconviction proceedings under Florida Rules of Criminal Procedure 3.800(a), 3.801, 3.850, 3.851, or 3.853. See also Chapter 13, Appeals of Motions for Postconviction Relief.

The State in a criminal case may appeal

(1) orders dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release;

(2) orders suppressing before trial confessions, admissions, or evidence obtained by search and seizure;

(3) orders granting a new trial;

(4) orders arresting judgment;

(5) orders granting a motion for judgment of acquittal after a jury verdict;

(6) orders discharging a defendant under Florida Rule of Criminal Procedure 3.191;

(7) orders discharging a prisoner on habeas corpus;

(8) orders finding a defendant incompetent or insane;

(9) orders finding a defendant intellectually disabled under Florida Rule of Civil Procedure 3.203;

(10) orders granting relief under Florida Rule of Criminal Procedure 3.801, 3.850, 3.851, or 3.853;

(11) orders ruling on a question of law if a convicted defendant appeals the judgment of conviction;

(12) orders withholding adjudication of guilt in violation of general law;

(13) orders imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines;

(14) orders imposing a sentence outside the range recommended by the sentencing guidelines;

(15) orders denying restitution; and

(16) as otherwise provided by general law for final orders. See Florida Rule of Appellate Procedure 9.140(c).

The State, as provided by general law, may also appeal to the circuit court non-final orders rendered in the county court.

The procedures in criminal non-final appeals differ from those in civil non-final appeals. The criminal defendant’s notice of appeal must be filed with the clerk of the lower tribunal with copies to the State Attorney and the Attorney General within 30 days of the date the order was rendered. In criminal appeals, the clerk of the lower tribunal is to prepare and serve the record on appeal within 50 days of the filing of the notice of appeal and the initial brief is to be served within 30 days of service of the record or designation of appointed counsel, whichever is later. All further briefs (the answer and reply briefs) follow the same time-frame as for civil appeals.

See Florida Rule of Appellate Procedure 9.140(b)(3), (f)(1), & (g).

In cases of summary denial (without a hearing) of petitions for post-conviction relief under Florida Rule of Criminal Procedures 3.800(a), 3.801, 3.850, or 3.853, the clerk of the lower tribunal is to send the appellate court the motion, the order, any motion for rehearing, and any order denying rehearing, plus all attachments to any of these items. The record on appeal in these cases is discussed more in the Chapter on Pulling Together the Record on Appeal. No briefs are required, but the appellant may file a brief within 15 days of filing the notice of appeal.

See Florida Rule of Appellate Procedure 9.141.

ITEM 9F | SPECIAL ISSUES FOR NON-FINAL APPEALS IN JUVENILE DELINQUENCY CASES

In juvenile delinquency cases, the State may appeal:

(1) orders dismissing a petition for delinquency or any part of it, if the order is entered before the beginning of an adjudicatory hearing;

(2) orders suppressing confessions, admissions, or evidence obtained by search and/or seizure before the adjudicatory hearing;

(3) orders granting a new adjudicatory hearing;

(4) orders arresting judgment;

(5) orders discharging a child under Florida Rule of Juvenile Procedure 8.090;

(6) orders ruling on a question of law if a child appeals an order of disposition;

(7) orders constituting an illegal disposition;

(8) orders discharging a child on habeas corpus; and

(9) orders finding a child incompetent pursuant to the Florida Rules of Juvenile Procedure.

The affected child, parent, legal guardian, or custodian may appeal

(1) an order adjudicating or withholding adjudication of delinquency or disposition order;

(2) orders entered after an order adjudicating or withholding adjudication of delinquency, including orders revoking or modifying community control;

(3) an illegal disposition; and

(4) any other final order as prescribed by law. See Florida Rule of Appellate Procedure 9.145(c).

The procedures in non-final juvenile delinquency cases differ from those in non-final civil appeals in a number of ways. The State’s notice of non-final appeal must be filed in the lower tribunal within 15 days of the order, and before the beginning of the adjudicatory hearing. If the child is in detention and the case is stayed during an appeal by the State, the child is to be released if the offense would be subject to bail if the child were charged as an adult; otherwise, the lower tribunal has discretion to release the child. All references to the child in all court documents are to be by initials, not by name, and all papers are treated confidentially.

There are also several types of orders that are immediately appealable in juvenile dependency cases or in cases involving the termination of parental rights. In juvenile dependency, termination of parental rights, and cases involving children and families in need of services, only certain persons may appeal to the appropriate court within the time and in the manner that the Florida Rules of Appellate Procedure prescribe. Those persons are limited to: any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding affected by an order of the lower tribunal, or the appropriate state agency as provided by law.

The procedures in non-final juvenile dependency and termination of parental rights cases also differ from those in non-final civil appeals. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. See Sections 39.510 and 39.815, Florida Statutes, and Florida Rule of Appellate Procedure 9.146. All references to the child or the parents are to be by initials, not by name, and all papers are treated confidentially. The courts are to give priority to appeals in these cases. A termination of parental rights order with placement of the child for later adoption is suspended while the appeal is pending, although the child continues in custody. See also Chapter 14, Appeals of Orders Rendered in Dependency and Termination of Parental Rights Proceedings.

ITEM 9G | SPECIAL ISSUES FOR NON-FINAL APPEALS IN WORKERS’ COMPENSATION CASES

In workers’ compensation cases, an appeal can be taken from any non-final order that determines:

(1) jurisdiction (the court’s ability to hear the case);

(2) venue (the county where the case is heard); or

(3) compensability, provided that the order expressly finds an injury occurred within the scope and course of employment and that the claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to the claimant will require substantial expense and time.

See Florida Rule of Appellate Procedure 9.180(b)(1).

The procedures in non-final workers’ compensation appeals differ from civil non-final appeals in several important ways. The notice of appeal, already outlined above, must also include a brief summary of the types of benefits affected by the order. It must also include a statement setting forth the time frames involved. Such a statement could be, for example: “I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment,” followed by a list of the benefits and time periods involved in the appeal. Such benefits may be withheld pending the outcome of the appeal. Within 15 days after filing the notice of appeal, the appellant must file the initial brief with the court, and serve a copy on each of the other parties. The brief must be accompanied by an appendix that contains the order to be reviewed, along with any other documents or transcripts which were filed in the lower tribunal and which would be helpful to the appellate court in understanding the case on appeal. See also Chapter 17, Workers’ Compensation Appeals; Chapter 3, Pulling Together the Record on Appeal.

ITEM 9H | SPECIAL ISSUES FOR NON-FINAL APPEALS IN ADMINISTRATIVE LAW CASES

In many situations, the Administrative Procedure Act, Chapter 120, Florida Statutes, determines whether a non-final administrative agency action or order may be immediately appealed. Section 120.68, Florida Statutes, provides that non-final agency orders may be appealed if review of the final agency decision would not provide an adequate remedy. If a would-be appellant’s case is not one governed by Chapter 120, Florida Statutes, that appellant needs to check the particular statutes that govern that appellant’s type of case to see if appellant can appeal a particular non-final order.

The procedures for what needs to be done to obtain review of a non-final order in an administrative law case are different from the procedures in other types of cases. In administrative cases, an appellant generally files a petition for review of non-final agency action under the Administrative Procedure Act, together with Florida Rules of Appellate Procedure 9.100(b) and (c). See Florida Rule of Appellate Procedure 9.190(b)(2)&(c)(3). Instead of filing a notice of appeal, an appellant must file a petition for review (which is similar to an initial brief), along with the filing fees, within 30 days of rendition of the order to be reviewed. The administrative judge, the hearing officer, or the individual members of the administrative agency are not named as respondents (opposing parties). A copy of the petition must be served on the administrative agency. The petition must include the name of the court that is going to be reviewing the order, the name and designation of all parties on each side of the case, the basis for the court’s jurisdiction (authority to hear the case), the facts on which appellant relies in seeking relief, the nature of the relief sought (what the appellant wants the appellate court to do), and the legal argument with supporting cases, statutes, and rules. The appellant must sign and certify that he/she has served copies to the opposing side and to the administrative agency.

The appellant must also file and serve an appendix in accordance with Florida Rule of Appellate Procedure 9.220, which may not contain any matter not made part of the record in the administrative agency. The appendix must contain the order that the appellant wants the court to review and should contain any other documents that the appellant thinks the court will need to decide the appeal. If the court makes a preliminary, or initial, determination that the appellant’s petition is within its authority to review and may state a claim on which it can grant relief, the court will issue an order to show cause and require the other side to file a response and explain why the relief the appellant seeks should not be granted. The court will then generally give the appellant a chance to reply to that response. The court will then make its decision.

In cases not governed, or controlled, by the Administrative Procedure Act, different procedures (often a petition for writ of certiorari) may be provided. The appellant should review the particular statutes that govern the case in question to see what procedures may apply. See also Chapter 15, Administrative Appeals; Chapter 3, Pulling Together the Record on Appeal.

CHAPTER X | APPEALLING NON-FINAL ORDERS

ITEM 10A | INTRODUCTION

An extraordinary writ petition is a different way to ask an appellate court to review the actions or inactions of a lower tribunal. Writ petitions can only be used in very rare, or “extraordinary,” circumstances, where there is no other adequate remedy or ability to appeal. See Florida Rule of Appellate Procedure 9.100. In civil cases, writs are most commonly used to: compel a judge or other official to perform a ministerial act he or she refuses, but is required, to do (writs of mandamus); prevent a lower tribunal from performing an act it has no jurisdiction to do (writs of prohibition); or challenge non-final orders that cannot otherwise be immediately appealed (writs of certiorari). An extraordinary writ petition can be filed, provided certain criteria are satisfied, with the appellate court while the case is still going on in the lower tribunal.

An extraordinary writ petition is a different way to ask an appellate court to review the actions or inactions of a lower tribunal. Writ petitions can only be used in very rare, or “extraordinary,” circumstances, where there is no other adequate remedy or ability to appeal. See Florida Rule of Appellate Procedure 9.100. In civil cases, writs are most commonly used to: compel a judge or other official to perform a ministerial act he or she refuses, but is required, to do (writs of mandamus); prevent a lower tribunal from performing an act it has no jurisdiction to do (writs of prohibition); or challenge non-final orders that cannot otherwise be immediately appealed (writs of certiorari). An extraordinary writ petition can be filed, provided certain criteria are satisfied, with the appellate court while the case is still going on in the lower tribunal.

Filing a writ petition usually does not stay (stop) the proceedings in the lower tribunal. Rather, to stay the lower tribunal proceedings during the writ proceeding, a party would normally have to also move for and be granted a stay. Stay motions are discussed in Chapter 11 of this Handbook. See also Florida Rule of Appellate Procedure 9.310.

An extraordinary writ petition is not the same as an appeal. First, the parties to a petition have different titles than in an appeal. In an appeal, the appealing party is the “appellant,” and the opposing party is the “appellee.” In contrast, in a writ proceeding, the party petitioning the appellate court is called the “petitioner,” and the opposing party is called the “respondent.” A writ proceeding is begun by filing the petition, which is like the initial brief, directly with the appellate court (unlike an appeal, which begins by filing a notice of appeal in the lower tribunal). The writ petition is filed in the appellate court and served on the opposing parties. Depending on the type of writ, the deadline is usually 30 days from the date the challenged order was entered or action performed.

In addition, in some types of writ proceedings, such as when a party files a petition for writ of mandamus or prohibition, the judge in the lower tribunal must also be (a) named as a respondent in the body of the petition, but not in the case name (caption), and (b) served with a copy of the petition for writ mandamus or prohibition. In the case of a petition for writ of certiorari, the lower tribunal judge is not named as a party at all, but is served with a copy of the petition. In contrast, in a regular appeal, the lower tribunal judge is not named as a party nor served with the documents filed in the appeal.

Extraordinary writs are called extraordinary because they are very unusual. Appellate courts do not grant petitions for extraordinary writs except in very special circumstances. It is very hard to meet the requirements for an extraordinary writ. Even if all the requirements are met, the appellate court can still deny the writ and not decide the issues raised in the petition. Extraordinary writ petitions are used by the appellate courts only to fix a miscarriage of justice that cannot be fixed any other way.

ITEM 10B | TYPES OF EXTRAORDINARY WRITS IN CIVIL CASES

There are many different kinds of extraordinary writs. Each one serves a different purpose, and each is proper only in specific circumstances.

1. Writ of Mandamus.

If a lower tribunal judge or other official is required by law to perform a duty and refuses or fails to perform it, a party can file a petition for writ of mandamus. An appellate court may issue a writ of mandamus to force the lower tribunal, or another government officer, to perform an official duty. The requirements for a writ of mandamus are:

(1) The petitioner must have a clear legal right to have the trial judge or other officer perform a specific act or duty;

(2) The lower tribunal judge or other government officer must have a clear legal, ministerial duty to perform the action; and

(3) The petitioner must have no other adequate legal remedy.

The appellate court can only issue a writ of mandamus when the duty to be performed is a ministerial act. An act is ministerial when the lower tribunal or office has no discretion. Discretion is the freedom to choose to do or not do something. So, an act is ministerial when the law requires it to be done, without any choice by the official. Sometimes an act might be part ministerial and part discretionary. In such cases, mandamus could be used to make an official do an act or make a decision (if it is a required ministerial act), but not how to do the act nor what decision to make (which is usually for the official to decide, i.e., discretionary).

For example, an appellate court may issue a writ of mandamus to require a clerk of a lower tribunal to accept a particular document for filing if the clerk is required to accept it, but has refused to accept it. An appellate court may issue a writ of mandamus to require a city to produce for inspection and copying, public records which the petitioner has requested and the city has refused to produce. An appellate court may also issue a writ of mandamus to require a lower tribunal to hold a hearing within a certain amount of time. But an appellate court cannot use the writ to tell the lower tribunal how to decide the case because that would be forcing the official to use his discretion in a certain way.

2. Writ of Prohibition.

Prohibition is a writ used to stop a lower tribunal from doing something that it does not have jurisdiction to do. In other words, it is used to stop a lower tribunal from doing something unlawful or improper. District courts of appeal can issue writs of prohibition to lower courts or state agencies. The Florida Supreme Court, on the other hand, can issue writs of prohibition to lower courts, but not to state agencies.

The petition for writ of prohibition must be filed before the lower tribunal takes the action that the petitioner wants to prevent. An appellate court cannot grant prohibition to undo something that already has been done. It can only grant prohibition to prevent something that has not been done yet. In addition, the petitioner must show (1) there are no disputed facts and (2) the lower tribunal has no jurisdiction to do the thing the petitioner is trying to prevent.

If the appellate court issues an order to show cause why relief should not be granted in a prohibition proceeding, it stays the proceedings below. However, an order merely directing the respondent to file a response to the petition in a prohibition proceeding generally does not stay the lower tribunal proceedings. A stay puts all of the lower tribunal proceedings on hold until the appellate court makes a decision. See Chapter 11 of this Handbook (stays).

3. Writ of Certiorari.

Certiorari, also called “cert,” lets an appellate court review a non-final order of the lower tribunal that departs from the essential requirements of law when there is no other means of appeal. It allows the appellate court to decide whether the lower tribunal is handling the proceedings in a regular way and according to the law. Certiorari gives the appellate court the power to reach down and stop a miscarriage of justice where no other remedy exists. Unlike the district courts of appeal, the Florida Supreme Court does not have jurisdiction to grant writs of common law certiorari. To get a writ of certiorari, a petitioner must show:

(1) The action of the lower tribunal is a material departure from the essential requirements of law. This requires more than just an error by the lower tribunal. Departure from the essential requirements of law means there is a violation of a clearly established principle of law. This violation results in a real miscarriage of justice or a denial of due process. Clearly established law can come from many sources, including controlling case law, rules of court, statutes and constitutional law.

(2) The error will cause the petitioner irreparable harm throughout the remainder of the proceedings. The irreparable harm must be more than the time and expense of an unnecessary trial. An example of irreparable harm is an order violating a party’s constitutional rights that cannot be fixed by an appeal at the end of a case. Such an order might be a broad “gag order” preventing the plaintiffs and their attorneys from discussing their case with the media with no showing that the gag order was necessary to protect the fairness of the proceedings. Another example is an order allowing temporary visitation by a grandmother over the objection of a mother, and setting a future hearing to determine permanent visitation rights. This type of order would violate the mother’s constitutional right to privacy. A later determination could not change the violation that already would have taken place.

(3) There is no adequate remedy by appeal from a final judgment. This is another aspect of irreparable harm. If the error is something that the appellate court can fix in an appeal at the end of the case, the appellate court will not grant a writ of certiorari because there is no irreparable harm. For example, a denial of a trial by jury when the petitioner is entitled to a jury trial does not cause irreparable harm that cannot be fixed on appeal. This is because an appellate court can order a new trial following an appeal at the end of the case.

In civil cases, an area where certiorari is often requested is discovery. Discovery is the process before trial in which the parties exchange factual information through depositions, interrogatories, and production of documents. Not every incorrect discovery order creates certiorari jurisdiction. However, certiorari is sometimes granted when a court orders a party to provide information that the party should not have to provide, or what is called privileged information. A discovery order that requires a party to produce irrelevant documents does not necessarily cause irreparable harm. Certiorari is hardly ever granted just because the documents ordered to be produced are irrelevant. However, an order granting discovery of privileged material can cause irreparable harm, because once the party turns over information it should not have to disclose, it is impossible to get the information back. This is often referred to as a “cat out of the bag” situation. An order denying discovery is usually not reviewable by certiorari. There are only a few times when an appellate court might issue a writ of certiorari following such an order. For example, certiorari might be proper if the order does not allow discovery from a key witness where there would be no realistic way to determine after judgment what that witness would have said or how it would have affected the case.

In addition, with very few exceptions, certiorari will not be granted to review the denial of a motion to dismiss. This is because an appeal at the end of the case is an adequate remedy.

If a party petitions for a writ of certiorari and the appellate court denies it without an opinion, that does not end the entire case. The rest of the case continues in the lower tribunal. On a final note, party who plans to file a certiorari petition with the appellate court will often also file an emergency motion to stay in the lower tribunal, asking it to stop or “stay” the challenged order during the certiorari proceeding. As discussed in Chapter 11 of this Handbook on stays, if the trial court denies the motion, the party can then ask the appellate court to issue the stay. See Florida Rule of Appellate Procedure 9.310(a)&(f).

4. Writ of Quo Warranto.

The State of Florida gives its citizens and taxpayers certain rights or privileges. Quo warranto is used by citizens to test their abilities to use those rights or privileges. For example, a petition for writ of quo warranto has been used to dispute the inclusion of certain lands in a municipality. Quo warranto stopped the City of Coral Gables from exercising jurisdiction over part of Key Biscayne. Quo warranto has also been used to decide whether the Florida Legislature’s override of the governor’s veto is constitutional. Citizens and taxpayers are the people who can ask for the writ of quo warranto to enforce their public rights. Members of the general public do not need to show any real or personal interest in the enforcement of a public right. They just need to show that there is a public interest in the right. Quo warranto is a very unusual writ that is hardly ever used.

5. All Writs.

The term “all writs” refers to the power of a district court of appeal to issue any writ necessary or proper to the complete exercise of its jurisdiction. This includes the power to direct the lower tribunal to carry out the appellate court’s mandate, or to follow the instructions in the appellate court’s decision after an appeal. All writs jurisdiction is not a separate basis to seek review in the appellate court. In other words, without an ongoing case in the appellate court, over which the appellate court already has jurisdiction, a party cannot ask for “all writs” jurisdiction. All writs jurisdiction exists only in connection with an existing case. The purpose of all writs jurisdiction is to protect the appellate court’s already existing jurisdiction in a case. Some have tried to use all writs jurisdiction to get the Florida Supreme Court to review a district court of appeal’s decision, such as a “per curiam” affirmance without a written opinion. But the Florida Supreme Court does not have all writs jurisdiction to review that kind of decision.

ITEM 10C | IMPORTANT APPELLATE RULES

Which of the Florida courts have jurisdiction to issue extraordinary writs is discussed in Florida Rule of Appellate Procedure 9.030. That Rule explains which Florida courts have jurisdiction to issue extraordinary writs. Rule 9.030(a)(3) describes the Florida Supreme Court’s ability to issue extraordinary writs. The Florida Supreme Court can issue writs of prohibition to courts. It can also issue all writs necessary to the complete exercise of its jurisdiction, in other words, any writ that would allow the Florida Supreme Court to do its job. The Florida Supreme Court can also issue writs of mandamus and quo warranto to state officers and state agencies. Finally, the Florida Supreme Court can issue writs of habeas corpus.

Florida Rule of Appellate Procedure 9.030(b)(3) explains the jurisdiction of the district courts of appeal to issue extraordinary writs. District courts of appeal can issue writs of mandamus, prohibition, quo warranto, and certiorari. These courts can also issue all writs needed to the complete exercise of their own jurisdiction. Finally, judges of district courts of appeal can issue certain writs of habeas corpus.

Florida Rule of Appellate Procedure 9.030(c)(2) allows circuit courts to issue writs of certiorari to review non-final orders of county courts. It also allows circuit courts to issue writs of mandamus, prohibition, quo warranto, and habeas corpus. Like the other courts, circuit courts can also issue all writs needed to the complete exercise of their own jurisdiction.

ITEM 10D | PROCEDURE FOR EXTRAORDINARY WRITS

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.

ITEM 10E | CONCLUSION

An extraordinary writ will not be granted to fix an ordinary mistake in the middle of a case. A party should carefully think about whether to file a petition for an extraordinary writ. A petition for an extraordinary writ should only be filed if a party truly believes that there has been a miscarriage of justice that simply cannot be fixed later or any other way.

CHAPTER XI | STAYS PENDING REVIEW

ITEM 11A | INTRODUCTION

Once a judgment has been entered against a party, the plaintiff can try to collect on the judgment (if the judgment is for money) or enforce the order. The plaintiff can collect or enforce a judgment, even if the other party appeals. The party who appeals (the “appellant”) may want to try to “stay” enforcement of, or execution on, the order or judgment. A stay prevents the winning party from trying to collect on the judgment or enforce the order during the appeal. The appellant is not required to seek a stay, but a stay can help protect the appellant from collections and other enforcement proceedings until the appellate court decides the appeal. It is important to remember that filing a motion for a stay generally will not stay the case unless or until the court rules on and grants the stay motion. In a mortgage foreclosure action, for example, even if an appeal has been filed, the lower court can still sell the property at a foreclosure sale unless the appellant obtains a stay of the proceedings. In some types of cases, the stay may be automatic if certain requirements and procedures are followed.

ITEM 11B | LOWER TRIBUNAL’S CONTINUING POWER TO HANDLE “STAY” MOTIONS

Usually, a party seeking a stay during an appeal must file a motion in the lower court or administrative agency (lower tribunal) that entered the order or judgment that the party is appealing. Under Florida Rule of Appellate Procedure 9.310 and Section 45.045, Florida Statutes, the lower tribunal has the power to grant, deny, or modify the terms of a stay, even after a notice of appeal has been filed. Sometimes, the appellate court may consider a stay request first, but the party who wants to stay the order or judgment that is being appealed is usually required to first file a motion requesting a stay in the lower tribunal that decided the case. After the lower tribunal has ruled on a motion for a stay, that decision can be reviewed by the appellate court.

See Florida Rule of Appellate Procedure 9.310(a)&(f).

ITEM 11C | FACTORS FOR IMPOSING A “STAY” PENDING REVIEW, GENERALLY

A lower tribunal must try to protect the party who won. If the order appealed is for something other than a specific amount of money, the lower tribunal will probably require the losing party to post a “bond” for a reasonable amount of money that the judge thinks will protect the winning party until the appeal is finished. See Florida Rule of Appellate Procedure 9.310(a). A bond is either cash money deposited in the court registry, or a formal promise to pay a certain amount of money that is guaranteed by a surety company. A surety company is like an insurance company. The clerk’s office of the court where the case is pending can provide the names of Florida approved surety companies, which have their own requirements for obtaining a bond.

ITEM 11D | MONEY JUDGMENTS

Florida Rule of Appellate Procedure 9.310(b)(1) generally provides that if the order being appealed is solely for the payment of money, a party can obtain an automatic stay pending appeal “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.” See Florida Rule of Appellate Procedure 9.310(b)(1).

Some Florida courts have ruled that the only way to stay execution (the enforcement of a money judgment) is by posting cash or a surety bond in the amount required by Rule 9.310, and this may remain a subject of disagreement in certain courts. But Section 45.045(2), Florida Statutes, seems to give the lower tribunal the power to reduce the amount of a bond required to stay a money judgment, and/or to set other conditions for the stay with or without requiring a bond. In addition, Section 45.045(1), Florida Statutes, generally states that, except in certified class actions, the amount of a bond needed to obtain a stay pending appeal may not be more than $50 million for each appellant, regardless of the amount of the judgment being appealed (although this number may change in the future). If you are asking a court to apply Section 45.045, Florida Statutes, doing additional research will help you determine what your local courts have decided.

According to Section 45.045, Florida Statutes, if the lower tribunal reduces the bond amount or allows a stay on other conditions without requiring a bond, the party who won in the lower tribunal (the “appellee”) is allowed to take discovery to make sure that the appellant has not hidden or spent money in a way that would make collection of a judgment more difficult. If it is discovered that the appellant has hidden or spent money, the lower tribunal may then, upon request from the appellee, change the amount of the bond or require the appellant to post a full bond in the amount required by Florida Rule of Appellate Procedure 9.310.

Unless the lower tribunal allows a bond in a reduced amount or orders a stay on other conditions without requiring a bond under Section 45.045, Florida Statutes, the bond amount required is the total amount stated by the judgment, plus two years of interest at the statutory interest rate. See Florida Rule of Appellate Procedure 9.310. The current interest rate can be obtained from the local court clerk, the Florida Department of Financial Services’ website, or an authorized surety company. Posting a bond for the correct amount should automatically stay execution or the enforcement of the judgment. A party posting a bond should send all parties a “Notice of Filing Supersedeas Bond,” so that everyone knows about the stay. In a mortgage foreclosure case, it is especially important for a party who plans to appeal to move for a stay order in the lower court as soon as possible and prior to the judicial foreclosure sale scheduled in the final foreclosure judgment.

ITEM 11E | PUBLIC ENTITIES AND OFFICERS

In a civil case, if the judgment is against the state, a public officer in an official capacity, a board, commission, or other public entity, and that public entity files a timely appeal, the public entity will get an automatic stay and does not have to post a bond. The lower tribunal does have the authority, however, to remove or modify this automatic stay, and that decision can be reviewed by the appellate court. If the order being appealed relates to a public records or public meeting issue, and requires the meeting or records to be open to the public, an appeal of that order by a government agency will activate the automatic stay. This stay will only be in effect for 48 hours, unless a court decides otherwise upon request by the government agency. See Florida Rule of Appellate Procedure 9.310(b)(2)&(f).

ITEM 11F | REVIEW OF A STAY ORDER

After the lower tribunal or administrative agency decides a stay issue, the order relating to the stay can be reviewed and changed by the appellate court. A new appeal is not necessary. Instead, the party seeking appellate review files a motion in the appellate court in which the appeal was filed to review the lower tribunal’s stay order. The party seeking appellate review of a stay order must identify facts to support an argument that the lower tribunal was wrong (“abused its discretion”) when it denied or granted the stay motion. See Florida Rule of Appellate Procedure 9.310(f).

ITEM 11G | ADMINISTRATIVE CASES

Generally, filing a notice of appeal of an administrative agency’s action or final order does not automatically stay the order or judgment being appealed. In any such administrative case governed by Chapter 120, Florida Statutes (the “Administrative Procedure Act”), a stay pending appeal can usually be granted either by the administrative agency or the appellate court. With certain exceptions, a stay should usually be sought by first filing a motion for a stay in the administrative agency. Either party can file a motion asking the appellate court to review the agency’s ruling on a motion for a stay. See Florida Rules of Appellate Procedure 9.190 and 9.310.

A party seeking to stay an agency order suspending or revoking a license (other than a driver’s license) must file the motion for stay directly in the appellate court. The agency must respond to the motion for a stay within 10 days. The party seeking a stay can also ask the court to order the administrative agency to respond faster by filing another motion explaining why the court should quickly rule on the motion for a stay. The appellate court must grant the stay if the agency does not respond. If the agency does respond, it must prove to the appellate court that a stay would cause a probable danger to the health, safety, or welfare of the state. Otherwise, the court will grant the stay. See Florida Rules of Appellate Procedure 9.190 and 9.310.

Some administrative revocation and suspension orders cannot be stayed. For example, if a driver refuses a blood, breath, or urine test following a traffic stop, this results in an administrative suspension of the driver’s license. The driver’s license suspension generally cannot be stayed during an appeal of the suspension/revocation order. See Florida Rule of Appellate Procedure 9.190.

ITEM 11H | LENGTH OF THE STAY

A stay lasts until an appellate court issues its mandate after its decision in the case is final. The stay ends when the appellate court issues its mandate, even if one of the parties asks the Florida Supreme Court to review the appellate court’s decision. The only method for obtaining a longer stay once an appellate court decides a case and rules upon any motions for rehearing, certification or clarification, is to file a motion to stay the mandate in the appellate court. Otherwise, the court clerk will usually just send the mandate to the parties and to the lower tribunal 15 days after an opinion is final (which will either be 15 days after the opinion if no post-decision motions are filed, or 15 days after the appellate court decides a timely-filed motion for rehearing, certification, or clarification).

ITEM 11I | MORTGAGE FORECLOSURE STAYS

A mortgage foreclosure judgment generally is not viewed as an order solely for the payment of money because it is secured by the mortgage on the real property. Accordingly, an appellant cannot rely on the automatic stay provisions for money judgments in Florida Rule of Appellate Procedure 9.310(b)(1). To obtain a stay pending appeal in a mortgage foreclosure case, the appellant should file a motion to stay the foreclosure judgment and sale in the lower court as soon as possible and prior to the judicial foreclosure sale scheduled in the final foreclosure judgment. The trial court has broad discretion to decide whether to grant a motion to stay a foreclosure case pending appeal, and will consider, among other factors, the present fair market value of the property, any other liens on the property, and any waste or other damages that could be caused by delaying the foreclosure sale for the appeal. Although a mortgage foreclosure judgment does not fit neatly within the formula for money judgments in Florida Rule of Appellate Procedure 9.310(b)(1), the trial court may use that bond formula as a yardstick for determining the amount of a bond. If the order on appeal is affirmed or appellate review dismissed, the plaintiff generally may also collect any interest that accumulated on the bond during the appeal as damages for the delay in the case.

ITEM 11J | CONCLUSION

Because filing an appeal usually does not automatically stay execution or enforcement of most orders and judgments, filing a motion for a stay is a very important way to protect the rights of an appellant while the appeal is pending. In addition to this Chapter of the Handbook, the appellant seeking a stay should also review Florida Rules of Appellate Procedure 9.310 and 9.190, Section 45.045, Florida Statutes, and recent cases that discuss those rules and the statute.

CHAPTER XII | ANDERS BRIEFS: CRIMINAL DEFENDANTS

ITEM 12A | INTRODUCTION

This chapter is intended to aid a defendant whose appellate attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), on appeal from a criminal conviction and sentence or postconviction motion. This chapter describes how to write a pro se or “self-represented” brief after the appellate court has permitted the appellate attorney to withdraw or allows the defendant an opportunity to raise issues in a pro se brief.

ITEM 12B | WHAT IS AN ANDERS BRIEF AND WHY WOULD AN ATTORNEY FILE ONE?

The defendant is not entitled to a perfect appeal; however an appellate attorney has a duty to support her client's appeal to the best of her ability. Under the Rules Regulating the Florida Bar (the code of ethics that regulates all attorneys who practice in Florida), an appellate attorney must study the trial court record to determine which, if any, issues have merit and should be appealed. Attorneys are forbidden by the code of ethics from filing “frivolous” documents in court. Frivolous means that the documents have no serious purpose, meaning, or merit. Sometimes, the appellate attorney representing a defendant finds that the case does not have any nonfrivolous issues to raise on appeal (i.e., all of the issues that the attorney might raise on appeal have no serious purpose, meaning, or merit). In those circumstances, the appellate attorney may file an Anders brief. In the Anders brief, the attorney explains to the court that he or she believes the appeal presents no issues that can be argued in good faith as grounds to reverse the judgment, sentence, or order being appealed. Nevertheless, the attorney must also identify facts in the record that, despite not rising to the level of grounds for reversal, the appellate attorney believes could arguably support the appeal. In so doing, the appellate attorney balances his or her ethical responsibility to the courts not to raise frivolous issues on appeal with his or her ethical responsibility to protect the defendant’s constitutional rights. If the attorney files an Anders brief, he or she may also file a motion to withdraw from representing the defendant. Whether the motion to withdraw is required varies in different appellate courts.

In the Anders brief, the attorney identifies any facts in the record or law that might arguably support the appeal. When the attorney files an Anders brief, he or she must send a copy of the Anders brief and his or her motion to withdraw, if she files one, to the defendant. In either the motion to withdraw or the brief, the attorney will request that the court allow the defendant to file his or her own brief. Once the appellate attorney files an Anders brief, the appellate court will give the appellant an opportunity to file a brief on his or her own behalf. This brief filed by the defendant is commonly referred to as a “pro se brief.” The defendant may raise any issues he or she wants the appellate court to consider in the pro se brief.

When an Anders brief is filed, the appellate court performs a full review of the record to discover if any debatable issues exist. In some appellate courts, the appellate court, after conducting its own review, may order the appellate attorney to file a supplemental brief on the merits. This does not mean that the appellate court will grant relief on an issue, only that the facts warrant more briefing on appeal. Even if it does not order supplemental briefing, the appellate court will consider the Anders brief and, if one is filed, the pro se brief. The appellate court will also consider the State’s answer brief and any reply brief, if those are filed. After the court has reviewed the record and all briefs, it will issue a decision.

ITEM 12C | RECEIVING THE ANDERS BRIEF AND THE RECORD ON APPEAL

When the appellate attorney files an Anders brief, he or she must send a copy of that brief to his or her client. Most are sent with proof of delivery to ensure that the defendant promptly receives the Anders brief. The appellate court will then issue an order granting the defendant a specific number of days, usually 30, to file a pro se brief. When the appellate court issues that order, the appellate attorney will send the record directly to the defendant or, if the office that appointed the appellate attorney has a policy that requires the record be returned directly to that office, then the appellate attorney will return the record to the assigning office which will, in turn, send the record directly to the defendant.

ITEM 12D | COMPLIANCE WITH FLORIDA RULE OF APPELLATE PROCEDURE 9.210

The pro se brief must comply with Florida Rule of Appellate Procedure 9.210. Please refer to the Writing an Appellate Brief chapter of this handbook for directions on how to prepare the brief and what the brief includes (Chapter 5).

ITEM 12E | PRISON LAW LIBRARIES & INMATE LAW CLERKS

Florida prisons are generally required to provide law libraries to ensure that inmates have adequate legal materials to prepare court documents. The prison will also usually assign inmate law clerks who have completed a training class to assist inmates in doing legal research and preparing court documents. The Florida Supreme Court and the Rules Regulating The Florida Bar forbid the “unlicensed practice of law.” That means a nonlawyer (including an inmate law clerk, a lawyer from another state, or a law student) cannot give legal advice or represent anyone in court proceedings unless they have a license to practice law in Florida. In other words, a nonlawyer without a Florida license to practice law cannot give legal advice to anyone or attempt to act as another person’s lawyer either in written papers or in court appearances. The Department of Corrections has rules regarding the use of law libraries that may differ between particular prisons. Because writing a pro se brief requires some legal research, it is important to learn the prison’s rules for use of the law libraries and inmate law clerks.

ITEM 12F | THE GOAL IN WRITING A PRO SE BRIEF

The appellant’s goal in writing a pro se brief is to show that reversible error occurred during the trial court proceeding. In order to obtain relief on appeal, the appellant must show that the trial court made a legal error. To warrant reversal on appeal, for almost every error, the appellant must also demonstrate that it affected the outcome of the case – that is, that the error was not “harmless.”

ITEM 12G | INEFFECTIVE ASSISTANCE OF COUNSEL

A pro se brief in an Anders case is typically not the place to raise claims that the trial attorney did not provide effective assistance during the trial court proceedings. As a general rule, claims for ineffective assistance of counsel cannot be considered on direct appeal from the final judgment and sentence. See Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002). Therefore, in most cases the pro se brief should not include claims and argument that the trial attorney did something wrong or did not do something to aid the case.

Ineffective assistance of trial counsel claims should be raised after the direct appeal in a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court cannot rule on a rule 3.850 motion while the case is pending in the appellate court on direct appeal. A defendant generally has two years from the date the appellate court decision becomes final to file a rule 3.850 motion. However, if the defendant wants to preserve the right to file postconviction claims in federal court pursuant to a 28 U.S.C. § 2254 habeas petition, the rule 3.850 motion must generally be filed within one year from the date of the appellate court decision in order to “toll” (pause or delay) the one-year federal limitations period. Please review the chapter on postconviction motions for more information (Chapter 13).

ITEM 12H | WRITING A PRO SE BRIEF

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).

ITEM 12I | MOTIONS FOR EXTENSION OF TIME IN AN ANDERS APPEAL

The appellate court informs the pro se party of how many days the pro se party has to file and serve his pro se brief. Most appellate courts generally allow 30 days. The pro se party must complete the brief and mail it to the court and the opposing attorney within that time limit. If it will take longer to obtain and read the record, do the legal research, and write the brief than the time that the appellate court allows in the order, the pro se party should file a motion for extension of time to serve the pro se brief. The motion for extension of time must be served before the brief is due and it should ask for a specific amount of additional time or number of days needed to finished, serve and file the brief.

ITEM 12J | FILING AND SERVING THE PRO SE BRIEF

After the pro se party has finished writing the brief, he or she must file the original signed brief with the appellate court and must also serve a copy of the brief to the opposing attorney (usually by mail or delivery). For serving a copy, the Florida Attorney General’s Office represents the State in criminal appeals, and an Assistant Attorney General will be the opposing attorney in criminal cases. The pro se appellant must complete the certificate of service at the end of the brief and indicate the day that the pro se party gave the brief to the prison authorities for mailing. For filing with the appellate court, most courts used to require pro se appellants to deliver the original and three copies of the brief to the appellate court. But now most appellate courts only require the original signed copy of the brief to be filed. This does not change the requirement that the pro se appellant still must also serve a copy of the brief to the opposing attorney.

ITEM 12K | ANSWER BRIEFS

The State may file an answer brief to respond to the arguments raised in the pro se brief. However, generally the State will not file an answer brief unless ordered by the court. If the State is ordered or chooses to file an answer brief, the attorney representing the State must mail a copy of the answer brief to the pro se party, just as the pro se party must mail a copy of the initial brief to the State attorney. Answer briefs are addressed in more detail in the chapter on Writing an Appellate Brief (Chapter 5).

ITEM 12L | REPLY BRIEF

If the State files an answer brief, the pro se party should carefully read it and take notes to outline the arguments that are made in the answer brief. The pro se party is not required to file a reply brief and, therefore, should determine if he needs to respond to any of the State’s arguments. If the pro se party decides to respond, then the pro se party does so by filing a reply brief. The reply brief is due 20 days after the answer brief is served. If the answer brief was sent by mail or e-mail, then five more days are added to the due date of the reply brief. Like the initial brief, it also contains a table of contents, table of citations, summary of argument, argument, conclusion, a certificate of service, and certificate of typeface compliance. It is not necessary to include another statement of the case or facts. The reply brief may do so, however, if doing so is necessary to refute facts stated in the answer brief. The reply brief is limited to 15 pages, not including the table of contents, the table of authorities and the certificate of service. The reply brief is supposed to respond to the State’s answer brief arguments. It is not supposed to merely restate the argument from the initial brief, and it cannot raise new arguments that were not raised in the initial brief. Reply briefs are addressed in more detail in Chapter 5 on Writing an Appellate Brief.

ITEM 12M | DISPOSITION IN THE APPELLATE COURT

After all the briefs have been filed in the appellate court, the case will be assigned to a panel of 3 appellate judges to review the appeal. The exact procedures for handling Anders appeals vary from court to court; however, generally a law clerk or staff attorney will first review the record on appeal and the briefs and prepare a memorandum for the judges to review. Each judge will review the memorandum, briefs, record on appeal, and appeal case file. If the panel of judges determines that a potentially meritorious issue has been raised in the case, the court will generally order the court-appointed attorney to file a brief, in addition to the already-filed Anders brief, addressing the potential merit of the issue. The State of Florida will then be given an opportunity to respond. The appellate court will consider the supplemental briefs and decide how to rule on the case. A written decision, or opinion, indicating the appellate court’s ruling will then be sent to the appellant and all the attorneys.

ITEM 12N | MOTIONS FOR REHEARING, CLARIFICATION, CERTIFICATION, AND REHEARING EN BANC

After the appellate court issues its decision, a post-decision motion, such as a motion for rehearing, clarification, or certification, may be filed with the appellate court within 15 days. These motions are unusual in that they are only filed if a legitimate argument for relief can be made. They are rarely granted. Florida Rule of Appellate Procedure 9.330 provides that a “motion for rehearing shall state with particularity the points of law or fact that in the opinion of the movant the court has overlooked or misapprehended in its decision.” The motion should not be used to raise issues that were not previously argued in the briefs. “A motion for clarification shall state with particularity the points of law or fact in the court’s decision that in the opinion of the movant are in need of clarification.” Often, the appellate court will issue a decision without opinion, which is commonly called a “per curiam affirmance” or “PCA.” If that occurs and the pro se party believes “a written opinion would provide a legitimate basis for supreme court review,” that party may file a motion to request that the court issue a written opinion.

A motion for rehearing en banc requests review of the decision by all of the active judges on the appellate court. A pro se appellant should only file a motion for rehearing en banc when there are grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court's decisions. A motion based on any other ground will be stricken. Fla. R. App. P. 9.331(d). Post-decision motions are addressed in more detail in Chapter 19 on Post-Decision Motions.

ITEM 12O | MANDATE

The appellate court will usually issue its mandate 15 days after it issues its decision or 15 days after it rules on any post-decision motions that are filed. The mandate is the appellate court’s last official act in the case, the appellate final judgment, and signals the end of the appeal. A mandate may be recalled at the discretion of the appellate court, but not more than 120 days after it issues (this is very rare).

CHAPTER XIII | MOTIONS FOR POSTCONVICTION RELIEF

ITEM 13A | INTRODUCTION

Generally, there are two different types of postconviction relief motions:

(1) a motion to correct, reduce, or modify a sentence pursuant to Florida Rule of Criminal Procedure 3.800 and

(2) a motion to vacate, set aside, or correct a sentence pursuant to Florida Rule of Criminal Procedure 3.850 or 3.851 (for death penalty cases).

Although the rules for postconviction motions under rules 3.850 and 3.851 are similar, a defendant should be careful to consult with the rule that applies to the type of sentence imposed in his/her case. In 2013, the Florida Supreme Court adopted rule 3.801, which governs motions seeking jail credit. The new rule only applies to motions seeking in-state jail credit; motions seeking out of state jail credit should still be filed in a rule 3.850 motion. See Gisi v. State, 135 So. 3d 493, 495 (Fla. 2d DCA 2014). The Florida Supreme Court created a model form for postconviction relief motions filed pursuant to rule 3.850, but there is no model form for rule 3.800 or 3.801 motions. The model form for a motion for postconviction relief under rule 3.850 is found at rule 3.987, Florida Rules of Criminal Procedure.

ITEM 13B | FLORIDA RULE OF CRIMINAL PROCEDURE 3.800

1. Rule 3.800(a).

Generally, a court may at any time correct (1) an illegal sentence (a sentence that is longer than that allowed by law), or (2) a sentencing scoresheet error. To succeed on a rule 3.800(a) motion, however, a defendant must be able to show that the court records demonstrate on their face that the defendant is entitled to relief. A rule 3.800(a) motion should be initiated by filing a motion in the court that issued the judgment and sentence from which the defendant seeks relief. It is important to remember that a defendant cannot seek relief under rule 3.800(a) while his/her direct appeal is pending.

A defendant may file a motion for rehearing in the postconviction court within 15 days of the date of the service of the order disposing of the rule 3.800(a) motion. An order denying a rule 3.800(a) motion may be appealed within 30 days of rendition of the final order or the order denying a timely motion for rehearing.

2. Rule 3.800(b).

A defendant may file a rule 3.800(b) motion to ask the sentencing court to correct any sentencing error, including an illegal sentence, during the time allowed for the filing of a notice of appeal of the sentence, or after filing a notice of appeal but before the defendant's first brief is served. A defendant may not proceed under rule 3.800(b) if a death sentence has been imposed against him/her and his/her direct appeal is pending in the Florida Supreme Court. If the defendant has not been sentenced to death and his/her appeal is not in the Florida Supreme Court, then the defendant may file a motion under rule 3.800(b). The defendant’s motion must specifically describe the error in his/her sentence and provide a proposed correction to his/her sentence.

The State may file a response to that motion within 15 days, and that response must either admit or deny the alleged sentencing error. The State may also file a motion to correct a sentence under rule 3.800(b), but only if the correction of the sentencing error would benefit the defendant or correct a typographical error. A defendant may file a motion for rehearing of the denial of a rule 3.800(b) motion within 15 days of the order disposing of the motion or within 15 days of the expiration of the 60-day time period for filing an order if no order disposing of the motion is filed.

a. Filing a Rule 3.800(b) Motion Before the Direct Appeal.

A defendant may file a motion to correct, reduce, or modify his/her sentence during the time allowed for the filing of a notice of appeal. This means that the motion is filed within 30 days of rendition of the judgment and sentence. See Fla. R. Crim. P. 3.800(b)(1). If the defendant files the rule 3.800(b) motion before the time to file a notice of appeal expires, the filing of the rule 3.800(b) motion will stop (or toll) the running of the clock on the appeal deadline, and the defendant will not have to file a notice of appeal until after the sentencing court rules on the motion to correct, reduce, or modify a sentence. See Fla. R. Crim. P. 3.800(b)(1)(A).

Unless the sentencing court decides that the motion can be decided as a matter of law without a hearing, it must hold a calendar call no later than 20 days from the filing of the motion, with notice to all parties. The purpose of the calendar call is for the sentencing court to either rule on the motion or determine whether it needs to hold an evidentiary hearing. See Fla. R. Crim. P. 3.800(b)(1)(B). If the sentencing court decides that it needs to hold an evidentiary hearing to determine whether the defendant’s sentence should be corrected, reduced, or modified, it must hold that hearing no more than 20 days after the calendar call. See Fla. R. Crim. P. 3.800(b)(1)(B). The sentencing court must file an order ruling on the motion within 60 days after it was filed. See Fla. R. Crim. P. 3.800(b)(1)(B). If the court does not enter an order on the motion within 60 days, the motion is treated as if it were denied. See Fla. R. Crim. P. 3.800(b)(1)(B).

b. Filing a 3.800(b) Motion During Direct Appeal.

A defendant may also file a motion to correct, modify, or reduce his/her sentence under rule 3.800(b) in the sentencing court while the direct appeal is pending. See Fla. R. Crim. P. 3.800(b)(2). A defendant wanting to file a motion under rule 3.800(b)(2) must serve the motion before the first brief is served. In this situation, a defendant must also file a notice of pending motion to correct sentencing error in the appellate court. See Fla. R. Crim. P. 3.800(b)(2). If a defendant files a notice of pending motion to correct sentencing error, the time for filing the first brief will automatically be extended until 10 days after the sentencing court clerk transmits the supplemental record described in Florida Rule of Appellate Procedure 9.140(f)(6). See Fla. R. Crim. P. 3.800(b)(2).

The motion must be served on the sentencing court and on all trial and appellate counsel of record. Unless the motion expressly states that trial counsel will not represent the defendant in the sentencing court, trial counsel is supposed to represent a defendant on the motion under Florida Rule of Appellate Procedure 9.140(b)(5). See Fla. R. Crim. P. 3.800(b)(2)(A).

The same procedures regarding the calendar call, hearing, and ruling on a rule 3.800(b)(1) motion filed before a direct appeal apply to the consideration of a rule 3.800(b)(2) motion filed during a direct appeal. See Fla. R. Crim. P. 3.800(b)(2)(B).

Under rule 9.140(f)(6), the clerk of the lower tribunal must supplement the appellate record related to the direct appeal with the 3.800(b) motion, the order granting or denying it, any amended sentence, and, if requested, a transcript of the hearing on the 3.800(b) motion. See Fla. R. Crim. P. 3.800(b)(2)(C).

ITEM 13C | FLORIDA RULE OF CRIMINAL PROCEDURE 3.801

A defendant seeking jail credit for time spent in a Florida jail must file a motion under rule 3.801. This rule was adopted by the Florida Supreme Court and became effective on July 1, 2013. Importantly, defendants have only 1 year from the date that their judgment and sentence become final to file a motion seeking Florida jail credit. Defendants whose sentences became final prior to July 1, 2013, had to file their motions on or before July 1, 2014. Fla. R. Crim. P. 3.801(b).

Rule 3.801 motions seeking jail credit must be made under oath. This means that defendants must sign the motion and swear that its contents are true. In addition to an oath, the motion should contain:

(1) a brief statement of the facts that support the defendant's claim for jail credit;

(2) the dates, location of incarceration, and total amount of time already awarded by the sentencing court for jail credit;

(3) the date, location of incarceration, and total amount of time that the defendant claims was not awarded;

(4) the location, case number, and resolution of any charges that were pending during the defendant's incarceration for which he/she now seeks credit; and

(5) whether the defendant waived any county jail credit at the time he/she was sentenced and if so, the number of days waived.

It is very important to include all claims for Florida jail credit in the first motion under this rule because the postconviction court will not consider any successive motions. Fla. R. Crim. P. 3.801(d).

Under rule 3.801, the defendant may file an amended motion, receive an evidentiary hearing (unless it is clear from the record and the motion that the defendant is not entitled to the jail credit), file a motion for rehearing, and seek an appeal from the denial of the motion according to the same procedures outlined in rule 3.850, which are discussed in detail below. Most importantly, defendants should remember that a notice of appeal must be filed within 30 days of the date that the order denying the motion is rendered.

ITEM 13D | FLORIDA RULE OF CRIMINAL PROCEDURE 3.850

A defendant who has not been sentenced to death may file a motion to vacate, set aside, or correct a sentence under rule 3.850 if the defendant has been convicted of a crime following a trial or plea of guilty or nolo contendere. The grounds for relief under rule 3.850 include:

(1) the judgment or the sentence was imposed in violation of the United States or Florida constitutions or laws,

(2) the court did not have jurisdiction to enter the judgment against the defendant,

(3) the court did not have jurisdiction to sentence the defendant,

(4) the sentence exceeded the maximum allowed by law,

(5) the plea was not voluntary, and

(6) the judgment or sentence is otherwise subject to collateral attack.

See Fla. R. Crim. P. 3.850(a)(1)-(6).

One of the most commonly raised grounds in a motion for postconviction relief under rule 3.850 is that a defendant received ineffective assistance of counsel at trial. In order to sufficiently plead a claim of ineffective assistance of counsel, a defendant must allege both:

(1) that counsel's performance was deficient and

(2) that the deficient performance prejudiced the defense.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that a defendant suffered prejudice as a result of his/her attorney’s acts or failure to act, a defendant must show that there is a reasonable probability that the outcome of his/her case would have been different if it had not been for counsel's deficient performance. If the defendant entered a guilty plea, he/she must allege that but for the errors of counsel, they would not have pleaded, but would have instead proceeded to trial. See Grosvenor v. State, 874 So. 2d 1176, 1179 (Fla. 2004).

Like rule 3.801 motions, every rule 3.850 motion must include an oath. This means that a defendant must swear that the facts stated in that motion are true and correct and sign the motion before filing it in the postconviction court. Another person may not sign the oath on behalf of the defendant unless the defendant is physically unable to sign. See Piper v. State, 21 So. 3d 902, 903 n.1 (Fla. 2d DCA 2009). A defendant does not, however, have to attach any affidavits or sworn testimony to his/her motion. If the defendant fails to include the oath in the motion, it will be dismissed as facially insufficient. See Almodovar v. State, 74 So. 3d 1140, 1140 (Fla. 2d DCA 2011).

A defendant is not necessarily entitled to a free copy of his/her trial transcript for the purposes of preparing his/her motion. Nor is a defendant entitled to court-appointed counsel for the filing of a rule 3.850 motion for postconviction relief. The defendant may file a motion in the postconviction court seeking the appointment of counsel. A motion to appoint counsel in the postconviction court and on appeal from the order denying postconviction relief should address the adversary nature of the case, its complexity, the need for an evidentiary hearing, or the need for substantial legal research. See Fla. R. Crim. P. 3.850(f)(7). If the court orders an evidentiary hearing on the defendant’s motion, the defendant may request court-appointed counsel if the issues are complicated or may require expert testimony, and should state in his/her request that he/she does not have the education or the sophistication to proceed pro se in those matters. However, a defendant is absolutely entitled to appointment of postconviction counsel for a death penalty case. See Fla. R. Crim. P. 3.851(b).

Like rule 3.800, if a defendant is arguing under rule 3.850 that he/she received a sentence that is greater than that provided by law, a defendant may file the motion for postconviction relief under rule 3.850 at any time. See Fla. R. Crim. P. 3.850(b). Otherwise, in a non-death-penalty case, a defendant must file his/her motion within 2 years of when his/her judgment and sentence became final. In a case in which a defendant has received a death sentence, the defendant must file his/her motion under rule 3.851 within 1 year of when the judgment and sentence became final. See Fla. R. Crim. P. 3.850(b) and 3.851(d). A sentence becomes final thirty days after rendition in the postconviction court, or, when an appeal is taken, on the date that the appellate court issues its mandate.

The only exceptions to the 1- or 2-year deadlines for filing a motion for postconviction relief (that is not based on an illegal sentence) is to truthfully state in the motion that:

(1) the facts on which the claim for relief is based were unknown to the defendant or his/her attorney and the defendant could not have discovered those facts if the defendant had reasonably and actively tried to do so;

(2) the fundamental constitutional right the defendant asserts in the motion was not established within the filing window for the motion and the right has been held to apply retroactively; or

(3) the defendant hired an attorney to file a rule 3.850 motion for him/her, but the attorney did not file the motion on time.

See Fla. R. Crim. P. 3.850(b)(1)-(3), and 3.851(d)(2)(A)-(C). A “fundamental constitutional right” is one that is given to a defendant under the United States or Florida constitutions.

Like a rule 3.800(a) motion, a defendant may not file a rule 3.850 or 3.851 motion for postconviction relief while his/her direct appeal is still pending. A defendant must wait until his/her direct appeal has been decided and the mandate has issued before filing a postconviction motion. The 1- or 2-year deadline for filing a motion does not begin to run until the judgment and sentence become final, which occurs after the direct appeal has been concluded. If a direct appeal was not filed, the judgment and sentence become final 30 days after the filing of the judgment and sentence in the postconviction court clerk’s office.

Once a defendant files a motion for postconviction relief under rule 3.850 the postconviction court clerk must send the defendant’s motion and file to the postconviction court. See Fla. R. Crim. P. 3.850(f). If the motion, the files, and the records in the case show without doubt that the defendant is not entitled to relief, the postconviction court may deny the motion without a hearing. See Fla. R. Crim. P. 3.850(f)(5).

If the postconviction court’s decision that the defendant is not entitled to relief is based on the contents of the record, and not the legal sufficiency of the motion, the postconviction court must attach to its order denying the motion those portions of the record that show that the defendant is not entitled to relief. See Fla. R. Crim. P. 3.850(d). If the motion, files, and record do not conclusively show that the defendant is not entitled to relief, the postconviction court is required to order the state attorney to respond to the motion. See Fla. R. Crim. P. 3.850(f)(6).

If the postconviction court has not otherwise denied the defendant’s motion, after the state attorney files its response, the postconviction court must determine whether the defendant is entitled to an evidentiary hearing on his/her motion. If it determines that an evidentiary hearing is not required, the postconviction court must rule on the defendant’s motion. If it determines that an evidentiary hearing is required, the postconviction court must promptly set a hearing and serve notice of the hearing on all parties and make findings of fact and conclusions of law on the motion. See Fla. R. Crim. P. 3.850(f)(8).

A defendant is not necessarily entitled to be present at the hearing on his/her motion. See Fla. R. Crim. P. 3.850(g). The postconviction court has the authority and power to resolve his/her motion at a hearing without the defendant being at that hearing. See Fla. R. Crim. P. 3.850(g).

A defendant may be permitted to file a second or multiple motions for postconviction relief under rules 3.850 and 3.851. But that is true only if each and every motion after the first is timely and raises new grounds for relief not previously asserted and decided on the merits in any prior motion under rules 3.850 or 3.851. See Fla. R. Crim. P. 3.850(h). Because there is a strong preference to resolve all postconviction claims in one motion, any motion filed after the disposition of the first motion should explain why the defendant failed to assert the new grounds for relief in the first motion. If a defendant files a second motion for postconviction relief that states a ground that the defendant raised in his/her first motion for postconviction relief, the second motion will be dismissed as successive. See Fla. R. Crim. P. 3.850(h). The postconviction court may also dismiss his/her second motion (or other motions following the first motion), if the lower tribunal determines that the defendant’s motion for postconviction relief raises new grounds that could have been raised in an earlier motion and that the filing of the second motion was an abuse of postconviction procedures. See Fla. R. Crim. P. 3.850(h).

If the postconviction court denies the defendant’s rule 3.850 motion, the defendant may appeal that denial within 30 days of the date the order is filed in the postconviction court clerk's office. See Fla. R. Crim. P. 3.850(k). If the defendant hired an attorney to file an appeal for him/her, but the attorney did not file the appeal on time, the defendant may file a motion to file a belated appeal after the 30-day deadline has passed, but the defendant must allege in that motion that he/she instructed his/her attorney to appeal and that his/her attorney did not do so. See Fla. R. Crim. P. 3.850(l) and Fla. R. App. P. 9.141(c).

A defendant may also file a motion for rehearing of any order denying the motion for postconviction relief under rule 3.850. See Fla. R. Crim. P. 3.850(j). The motion for rehearing must be filed within 15 days of the date of the service of the order denying the defendant’s motion. See Fla. R. Crim. P. 3.850(i). The postconviction court must rule on the motion for rehearing within 15 days of the State's response, if there is one, but not less than 40 days from the date of the order disposing of the postconviction motion. Fla. R. Crim. P. 3.850(j). The defendant has 30 days from the date the order on a timely motion for rehearing is rendered to file an appeal. Fla. R. App. P. 9.020(i). The postconviction court clerk must promptly serve the defendant with a copy of any order denying his/her motion for postconviction relief or denying his/her motion for rehearing. See Fla. R. Crim. P. 3.850(g). The clerk must also note on the order the date that the clerk served the defendant with that order. See Fla. R. Crim. P. 3.850(i).