LEGAL GUIDE
Written by attorney Brooke Victoria Elvington | Jun 2, 2011

Florida Criminal Appeals: Understanding Florida's Appellate Process

The criminal appellate process is essential in ensuring due process; however, the process is commonly misunderstood, and not everyone wants or needs an appeal. The following is a general outline of the criminal appellate process in the State of Florida.

What is an appeal?

The Appellate Rule of Procedure 9.140 sets forth the proceedings for appeals within the State of Florida. In general, an appellate court's sole function is to determine whether a trial court committed legal error. An appeal is NOT a new trial.

What is trial court "error"?

Trial court "error" generally means that at some point during the proceedings, a judge made a ruling contrary to State or Federal law. Determining whether a trial court committed some error during your case, begins by conducting a full analysis of the proceedings that occurred from the time action was taken to charge you with a criminal offense, through the trial or plea stages and up to sentencing.

Common examples of trial court error are the following:

  1. The judge issued a search warrant to seize evidence from your property or person without probable cause to do so.

  2. Your attorney filed a motion to suppress evidence, and the trial court denied the motion.

  3. The judge permitted the State to introduce evidence during your trial that the Rules of Evidence prohibit.

  4. The State introduced insufficient evidence of guilt to proceed to verdict.

  5. The court erroneously instructed the jury on the applicable law.

Do you want an appeal?

Not everyone wants or needs an appeal. In cases where an appeal is not desirable or possible, there are still other avenues to pursue post-conviction relief.

Sentence reduction:

In some cases, the person's intention may be to request that the trial court reduce or modify his/her sentence. If you believe that the trial court lacked certain information before sentencing you, or you believe that additional information should have been presented, you may file a motion under Florida Rule of Criminal Procedure 3.800(c) in the trial court asking for your sentence to be reduced or modified. This motion must be filed and ruled upon within 60 days of your sentence.

Motion to Withdraw Plea:

In other cases, the person's intention may be to withdraw his/her plea. If there is legal cause, (such as an involuntary plea), you may file a motion asking the judge to withdraw your plea under Florida Rule of Criminal Procedure 3.170. The motion must be filed within thirty days of your sentence, and if the Court denies your motion, you may be able to appeal such.

Motion to Correct an Illegal Sentence:

If you believe you received an illegal sentence, you can raise this issue with the trial court at any time. Only issues that are apparent on the face of the trial court record can be addressed under this rule. These claims usually include allegations that the sentence exceeds the statutory maximum.

Can you appeal?

Appellate Rules of Procedure 9.140 sets forth the specific criteria for permissible appeals. A defendant may appeal a final judgment of guilt, an order granting probation or community control, orders revoking or modifying probation, orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850 or 3.853.

If you pled guilty or nolo contendere, you may still appeal a final judgment and sentence if you specifically reserved the right to appeal during your plea colloquy. For example, if your trial counsel filed a motion to dismiss, the motion was denied and you then pled guilty, so long as you reserved your right to appeal that dispositive motion to dismiss, you may appeal that ruling. A defendant that pleads guilty may also appeal the judgment and sentence if the trial court lacked jurisdiction to enter the sentence, a violation of the plea agreement (if preserved by a motion to withdraw plea), an involuntary plea (if preserved by a motion to withdraw plea), or a sentencing error (if preserved).

You Decided to Appeal, Now What?

The entire appellate process involves highly specific rules and procedures that must be followed in a timely fashion. If you fail to follow the rules of procedure, you may be barred from appealing your case.

After you are sentenced, you have thirty days to file a Notice of Appeal with the trial court. Within approximately sixty days after the Notice of Appeal is filed, the Clerk of Courts prepares the Record of your entire case. The Record includes all official pleadings, transcripts of your trial and sentencing.

Appellate Record The appellate record constitutes the entire universe of your appeal. The only matters that may be appealed are those contained within the record. If the record does not contain important documents or transcripts related to your case, we can ask the Clerk to supplement your record; however, the Appellate Court will not consider any matter on appeal that is not within the record.

Initial Brief

After the record is complete, the Appellate Attorney reads the entire record, analyzes your case for legal issues, conducts legal research and drafts the Initial Brief. The initial brief will contain all of the claims of error that may warrant reversal.

Answer Brief

The Attorney General receives your initial brief, and generally files an Answer Brief outlining its position on the issues raised in the initial brief. In general, the Answer Brief must be limited to issues raised in the initial brief.

Reply Brief

After the Answer Brief is received, you have one more opportunity to reply to the Court. The Reply Brief must not include any new issues, and must be limited to matters argued by the Attorney General in its Answer Brief.

Oral Argument

Oral argument is the opportunity to present the arguments before the Appellate Court, and perhaps more importantly, respond to the Court's concerns. Depending upon the District Court of Appeal in question, your oral argument may be limited to 15-20 minutes, most of which will be spent answering the Court's questions.

All of the briefs are filed, oral argument (if requested) is complete - now what?

After the briefs are filed and any argument completed, the entire Record and all filings are given to the three Judge panel. There are no deadlines for the Court to issue its ruling, and until it does issue the ruling, there is quite simply a lot of "sitting and waiting." In practice, rulings are generally issued within a couple of months to nearly one year, and possibly beyond...

Am I entitled to a bond pending appeal?

The short answer is - it depends. Florida law permits bond pending appeal, however, there are statutory exclusions for bond and other considerations that must be discussed prior to filing a motion for bond.

Court Ruling

Anyone can access the opinions on the individual Courts' websites under the heading "OPINIONS."

The Dreaded "PCA"

An appellate court does not always issue written opinions. In fact, courts issue more "PCAs" than written opinions. A "PCA" literally means "Per Curiam Affirmed" - in layman terms, it means the appeal is denied. If you receive a "PCA" in some cases you may still seek relief from the Court. For example, if the Court overlooked issues of fact or law or if the issues presented are of great importance, you can file a motion for rehearing, a motion for rehearing en banc (heard by the entire Court), a motion for certification of an important issue, or a motion requesting a written opinion. These motions should not be abused and should only be filed in instances where the Attorney believes there is just cause. If the Court denies any final relief, a PCA may mean the end of your direct appeal.

Opinions:

Written opinions may be issued to reverse or affirm a trial court's order.

When does the Court's ruling become final?

The Court's ruling will not become final until it issues a Mandate. The mandate will be issued after the time allowed for rehearing, or after the Court rules upon a motion for rehearing.

Obtaining Florida Supreme Court Jurisdiction:

The District Courts of Appeal are, in many cases, the last line of attack. However, in certain circumstances a party may seek Florida Supreme Court jurisdiction to review a district court opinion. Florida Rules of Appellate Procedure 9.030 sets forth the jurisdiction of the Florida Supreme Court. Simply because a party is dissatisfied with a particular ruling does not entitle them to Supreme Court review. There are two separate categories for the Court's jurisdiction - mandatory jurisdiction and discretionary jurisdiction. In criminal matters, the Supreme Court must review sentences imposing death, and decisions of district courts declaring a state statute invalid. In most cases, parties seek to invoke the Court's discretionary jurisdictions. In general, discretionary jurisdiction may be sought to review decisions of district courts that (1) expressly declare a state statute valid; (2) expressly construe a provision of the state or federal constitution; (3) expressly effect a class of constitutional or state officers; (4) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (5) pass upon a question certified to be of great public importance; (6) are certified to be in direct conflict with decisions of other district courts. However, as the word "discretionary" suggests, even if the Supreme Court can grant discretionary review, it does not have to grant the review.

The Appeal is over, now what?

If you prevail, what happens next depends upon the specific relief offered. If the Court remands your case it could be for a variety of procedures including a new trial, a new sentencing hearing, or it could be for the Trial Court to enter an Order dismissing your case. If you did not succeed, you may still have post conviction remedies. Within two years from the date of the mandate, you may file a motion for post conviction relief.

Additional resources provided by the author

First District Court of Appeal: www.1dca.org Second District Court of Appeal: www.2dca.org Third District Court of Appeal: www.3dca.flcourts.org Fourth District Court of Appeal: www.4dca.org Fifth District Court of Appeal: www.5dca.org Florida Supreme Court: www.floridasupremecourt.org

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