Published On:10/22/2002
§3.B.00 | ANCILLARY RELIEF — STAYS70
A request for stay pending review involves an issue that ordinarily is presented in the lower tribunal before it is considered by the reviewing court .71 Rule 9.310(a) states that the lower tribunal
“shall have continuing jurisdiction , in its discretion , to grant, modify, or deny such relief .”72
If issuance of the stay is discretionary , the proper procedure is to file the motion in the lower tribunal . The order entered on the motion is then reviewable simply by filing a motion for review in the case pending before the appellate court .73 stay is imposed automatically and without the need for a motion in the lower tribunal . First, a party who has appealed a judgment that is solely for the payment of money may obtain a stay of execution of the judgment under Rule 9.310(b)(1) by posting a bond with the clerk of the lower tribunal in the total amount of the judgment plus two years’ interest at the statutory rate.74 stay is automatic.75 discretion to require the appellant to post a bond in a higher or lower amount.76 motion for stay also is unnecessary if the party appealing the judgment is a public officer or a public body. This exception is based on a presumption that a public litigant will be able to pay the judgment if the appeal is not successful. When an appeal is filed by a public officer or public body, the filing of the notice of appeal automatically stays the judgment .77 party may file a motion in the lower tribunal to vacate the automatic stay , but the lower tribunal may vacate properly an automatic stay in an appeal by a public litigant only in compelling circumstances. The party moving to vacate the stay has the burden of establishing an evidentiary basis for the alleged compelling circumstances.78 motion for a stay pending review should be directed to the lower tribunal initially, the appellate court has inherent authority to issue a stay pending review , even if the motion is presented for the first time on appeal .79 (Stetson Law Review © 2002 // Volume 32, Issue 2, Article 4 // Phillip J. Padovano)
Footnotes
70. See id. at ch. 12 for the source of the material that is adapted in this Subsection.71. The procedure for obtaining a stay pending review is to file a motion in the lower tribunal . Fla. R. App. P. 9.310(a) . A special procedure applies if a party is seeking a stay of an administrative order . Id. 9.190(e)(2)(A) .72. Id. 9.310(a) .73. Id. 9.130(f) .74. Id. 9.310(b)(1) ; Waller v. DSA Group, Inc., 606 S.2d 1234, 1235 (Fla. Dist. App. 2d 1992) ; Wilson v. Woodward, 602 S.2d 545, 546–547 (Fla. Dist. App. 2d 1991) .75. Hollo v. N. Trust Bank of Fla., N.A., 562 S.2d 730, 731 (Fla. Dist. App. 3d 1990) ; Taplin v. Salamone, 422 S.2d 92, 93 (Fla. Dist. App. 4th 1982) .76. Mellon United Natl. Bank v. Cochran, 776 S.2d 964, 964 (Fla. Dist. App. 3d 2000) ; Campbell v. Jones, 648 S.2d 208, 209 (Fla. Dist. App. 3d 1994) ; Proprietors Ins. Co. v. Valsecchi, 385 S.2d 749, 751 (Fla. Dist. App. 3d 1980) .77. Fla. R. App. P. 9.310(b)(2) ; City of Delray Beach v. White, 616 S.2d 602, 602 (Fla. Dist. App. 4th 1993) ; Navarro v. Bouffard, 522 S.2d 515, 517 (Fla. Dist. App. 4th 1988) .78. Dept. of Envtl. Protection v. Pringle, 707 S.2d 387, 390 (Fla. Dist. App. 1st 1998) ; St. Lucie County v. N. Palm Dev. Corp., 444 S.2d 1133, 1135 (Fla. Dist. App. 4th 1984) .79. See Perez v. Perez, 769 S.2d 389, 393 (Fla. Dist. App. 3d 1999) (granting a stay filed directly in the appellate court without mentioning the motion and review procedures in Rule 9.310(a) –(f)).
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