Citations
- 351 So. 2d 981
Full opinion text
PER CURIAM.
Following three years of analyzing appellate practices in Florida under our 1962 Florida Appellate Rules, the Appellate Rules .Committee of The Florida Bar in October 1976 submitted to the Court for adoption a wholly new set of appellate rules. Pursuant to Rule 2.1(g) of the 1962 Rules, the chief justice directed the Court’s advisory committee on rules to study the proposal of the bar committee and to submit its recommendation to the Court. The advisory committee has now completed its evaluation and requests the Court to adopt the Florida Rules of Appellate Procedure (1977 Revision) and to publish with these rules the accompanying Commentary which the advisory committee has approved. Pursuant to the rule-making authority vested in this Court under Article V, Section 2(a) of the Florida Constitution, we adopt the Florida Rules of Appellate Procedure (1977 Revision) and we direct publication of the Commentary with them.
At oral argument on the new rules it became apparent that certain provisions in the new rules could be re-worked to some degree to resolve minor ambiguities and to meet the objections of some protestants. We have endeavored to redraft these provisions in light of the written and oral presentations made to the Court. The more significant rule changes made by the Court, together with appropriate Commentary changes, include:
(1) A rule [9.100(D)] to establish procedures for the review of orders excluding the press or public, designed to meet the appellate aspects of the problem confronted in English v. McCrary, 348 So.2d 293 (Fla.1977).
(2) Renumbering of the rules to group related rules within a series denominated by the first number to the right of the decimal.
(3) A change in the effective date provision [9.010] to move the effective date of the rules to 12:01 A.M., March 1, 1978, and to add a transitional provision to clarify the applicability of the former rules to appellate proceedings commenced prior to the effective date of the new rules.
(4) A change in the language of the filing fee provision [9.040(F)] to allow the payment of filing fees by cash, as under present rules.
(5) Changes in the rule on criminal appeals:
(a) to require not only an express reservation of the right of appeal in conjunction with a plea of nolo contendere, where desired, but the identification of the specific point of law being reserved [9.140(B)(1)];
(b) to enable counsel for the non-indigent defendant to obtain a copy of the record upon request at a price not to exceed the clerk’s cost of preparation [9.140(D)];
(c) to add a parenthetical clause to make clear that trial counsel has a duty to work together with appellate counsel, where the two are different, in determining what portions of the transcript are to be designated on appeal by an indigent defendant [9.140(D)];
(d) to permit but not require briefs and oral arguments on appeals from summary denials of Rule 3.850 motions [9.140(G)]; and
(e) to delete a provision which would' have automatically tolled the running of time for a speedy trial during the pendency of an appeal under these rules.
(6) Elimination of the color coding for briefs [9.210(A)(1)];
(7) The addition of a requirement that motions for extensions of time contain a certificate by counsel that opposing counsel has been consulted and either acquiesces or will file objections [9.300(A)];
(8) Addition of a provision that the grant or denial of a certiorari request to the Supreme Court is not subject to a motion for rehearing or clarification [9.330(D)]; and
(9) Addition of a rule [9.520] to codify current procedures for recommendations received from the Judicial Qualifications Commission.
To insure the technical accuracy and clarity of the new rules, and to guarantee again that all interested parties have an opportunity to familiarize themselves with the new rules and to offer theii^ views before these provisions become efféétive, we invite all interested persons to submit to the Court, not later than December 1, 1977, any comments or requests for clarification as to the'*; rules or the Commentary. Any proposal for a change in the rules should contain the precise language which the proponent would have the Court add, delete or change.
Absent any modifications by the Court before January 1, 1978, the following rules shall take 'effect on 12:01 A.M., March 1, 1978. All references to judicial administration have been deleted from these rules, to be compiled and promulgated in the near future as a set of rules dealing solely with judicial administration matters.
It is so ordered.
OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.
BOYD, J., dissents with an opinion.
BOYD, Justice,
dissenting.
I respectfully dissent to the order adopting the new appellate rules. Whatever benefits flow from the changes are offset by the expenditure of funds and time by the legal profession in acquiring and learning them.
What is needed is a set of rules which would speed and streamline appellate processes to prevent long delays after trial court proceedings.
ON RECONSIDERATION
PER CURIAM.
On October 27, 1977, we adopted a new set of appellate rules to become effective on March 1, 1978, reserving the right to alter the proposed rules before January 1, 1978, on the basis of additional comments received from interested persons. We have received numerous suggestions for technical and substantive changes, for which we are grateful. Having considered all of these suggestions and adopted several, we now adopt the following Florida Rules of Appellate Procedure (1977 Revision) effective at 12:01 A.M., March 1, 1978.
It is so ordered.
OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.
BOYD, J., dissents. Prior dissenting opinion of October 27, 1977, applies.
Introductory Note to Florida Rules of Appellate Procedure
These rules are the culmination of nearly four years of study and discussion. In the' autumn of 1973 the Florida Supreme Court called upon the Court Rules Steering Committee of The Florida Bar to conduct an intensive study of the existing appellate rules of procedure. The Florida Appellate Rules Committee, under Chairman William H. F. Wiltshire, Pensacola, and Vice Chairman Judge Robert T. Mann, Second District Court of Appeal; Judge Stephen H. Grimes, Second District Court of Appeal; and Henry P. Trawick, Jr., Sarasota, held extensive hearings over a period of nearly three years. On September 17,1976, the Committee’s proposal was approved by the Board of Governors of The Florida Bar and on October 14, 1976, the proposal as approved was submitted to the Supreme Court of Florida.
By direction of the Supreme Court of Florida, the Advisory Committee on Appellate Rules, created by Rule 2.1(g) of the former rules, conducted further proceedings over a period of five months under the Chairmanship of Justice Arthur J. England, Jr., The Supreme Court of Florida. Voting members: Judge Guyte P. McCord, Jr., First District Court of Appeal; Judge Joseph P. McNulty, Second District Court of Appeal; Judge Thomas H. Barkdull, Jr., Third District Court of Appeal; Judge James C. Downey, Fourth District Court of Appeal; Judge Howell W. Melton, Seventh Judicial Circuit, St. Johns County; Woodie A. Liles, former Public Counsel for the Citizens of Florida; William H. F. Wiltshire, Pensacola; and Robert Orseck, Miami. Non-voting participants: James D. Little, Miami; Tobias Simon, Miami; Lawrence J. Robinson, Sarasota; C. Marie King, Tampa; Andrew A. Graham, Cocoa; and Joan H. Bickerstaff, Cocoa. Minutes and Commentary: Michael P. McMahon, Research Aide to Justice Arthur J. England, Jr.
The Florida appellate rules, 1977 Revision, and accompanying Commentary, were submitted by the Advisory Committee to the Florida Supreme Court for its consideration and final approval on April 13, 1977. A summary of the proposed rules was published in the Florida Bar Journal, following which the Florida Appellate Rules Committee met to consider changes proposed by the Advisory" Committee. Oral argument on the proposed rules was held on June 24, 1977. Limited portions of this Commentary have been added by the Supreme Court of Florida to explain modifications adopted by the Court after the proposed rules were submitted.
It was the intent of the many persons involved in the drafting of these revised rules to implement the public policy of Florida that appellate procedures operate to protect rather than thwart the substantive legal rights of the people by alleviating existing burdens on the judicial system, by reducing the cost of appeals, by standardizing and"~expediting the appellate process, and by eliminating unnecessary technical procedures which have at times frustrated the cause of justice.
INDEX
Rule Number Page
9.010 Effective Date and Scope 984
9.020 Definitions 985
9.030 Jurisdiction of Courts 987
(a) Jurisdiction of Supreme Court 987
(b),' Jurisdiction of District Courts of Appeal 987
(c) Jurisdiction of Circuit Courts 988
9.040 General Provisions 988
9.100 Original Proceedings 990
9.110 Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases 993
9.120 Certiorari Proceedings to Review Orders of District Courts of Appeal 995
9.130 Proceedings to Review Non-Final Orders 997
9.140 Appeal Proceedings in Criminal Cases 999
9.200 The Record 1002
9.210 Briefs 1005
9.220 Appendix 1007
9.300 Motions 1008
9.310 Stay Pending Review 1009
9.320 Oral Argument 1010
9.330 Rehearing; Clarification 1011
9.340 Mandate 1011
9.350 Dismissal of Causes 1012
9.360 Parties 1012
9.370 Amicus Curiae 1013
9.400 Costs and Attorney’s Fees 1013
9.410 Sanctions 1013
9.420 Filing; Service of Copies; Computation of Time 1013
9.430 Proceedings by Indigents 1015
9.440 Attorneys 1015
9.500 Advisory Opinions to Governor 1016
9.510 Certified Questions from Federal Courts 1016
9.520 Judicial Discipline, Removal, Retirement and Suspension 1016
9.600 Jurisdiction of Lower Tribunal Pending Review 1017
9.700 Guide to Times for Acts Under Rules 1018
9.800 Uniform Citation System 1019
9.900 Forms 1020
Rule 9.010 Effective Date and Scope These rules, cited as “Florida Rules of Appellate Procedure”, and abbreviated “Fla.R. App.P.”, shall take effect at 12:01 a. m. on March 1, 1978. They shall govern all proceedings commenced on or after that date
in the Supreme Court, the district courts of appeal, and the circuit courts in the exercise of the jurisdiction described by Rule 9.030(c); provided that any appellate proceeding commenced before March 1, 1978, shall continue to its conclusion in the court in which it is then pending in accordance with the Florida Appellate Rules, 1962 Revision. These rules shall supersede all conflicting rules and statutes.
Commentary
The rules have been re-numbered to conform with the numbering system adopted by the Florida Supreme Court for all of its rules of practice and procedure, and to avoid confusion with the former rules which have been extensively revised. The abbreviated citation form to be used for these rules appears in this rule and in Rule 9.800(h).
This rule sets an effective date and retains the substance of former Rules 1.1, 1.2 and 1.4. A transition provision has been incorporated to make clear that proceedings already in the appellate stage prior to the effective date will continue to be governed by the former rules until the completion of appellate review in the court in which it is pending on the effective date. If review is sought after March 1,1978, of an appellate determination made in a proceeding which was filed in the appellate court before that date, the higher court may allow review to proceed under the former rules if an injustice would result from required adherence to the new rules. Unnecessary language has been deleted and the wording has been simplified. Specific reference has been made to Rule 9.030(c) in order to clarify those aspects of the jurisdiction of the circuit courts governed by these rules.
Rule 9.020 Definitions
The following terms have the meanings shown as used in these rules:
(a) Administrative action : an order of any public official, including the Governor in the exercise of all executive powers other than those derived from the Constitution, or of any agency, department, board or commission of the State or any political subdivision, including municipalities.
(b) Clerk: the person or official specifically designated as such for the court or lower tribunal; if no person or official has been specifically so designated, the official or agent who most closely resembles a clerk in the functions performed.
(c) Court: the Supreme Court; the district courts of appeal; and the circuit courts in the exercise of the jurisdiction described by Rule 9.030(c); and includes the Chief Justice of the Supreme Court and the chief judge of a district court of appeal in the exercise of constitutional, administrative or supervisory powers on behalf of such courts.
(d) Lower tribunal: the court, agency, officer, board, commission or body whose order is to be reviewed.
(e) Order: a decision, order, judgment, decree or rule of a lower tribunal, excluding minutes and minute book entries.
(f) Parties:
(1) Appellant: a party who seeks to invoke the appeal jurisdiction of a court.
(2)Appellee: every party in the proceeding in the lower tribunal other than an appellant.
(3) Petitioner: a party who seeks an order under Rule 9.100 or Rule 9.120.
(4) Respondent: every other party in a proceeding brought by a petitioner.
(g) Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.
Commentary
This rule supersedes former Rule 1.3. Throughout these rules the defined terms have been used in their technical sense only, and are not intended to alter substantive law. Instances may arise where the context of the rule requires a different meaning for a defined term, but these should be rare.
The term “administrative action” is new and has been defined to make clear the application of these rules to judicial review of administrative agency action. This definition was not intended to conflict with the Administrative Procedure Act, Chapter 120, Florida Statutes (1975), but was intended to include all administrative agency action as defined in the Administrative Procedure Act. The reference to municipalities is not intended to conflict with Article VIII, Section 1(a), Florida Constitution, which makes counties the only political subdivisions of the state.
The term “clerk” retains the substance of the term “clerk” defined in the former rules. This term includes the person who in fact maintains records of proceedings in the lower tribunal where no person is specifically and officially given that duty.
The term “court” retains the substance of the term “court” defined in the former rules, but has been modified to recognize the authority delegated to the Chief Justice of the Supreme Court and to the chief judges of the district courts <}f appeal. This definition was not intended to broaden the scope of these rules in regard to the administrative responsibilities of the mentioned judicial officers. The term is used in these rules to designate the court to which a proceeding governed by these rules is taken. When Supreme Court review of a district court of appeal decision is involved, the district court of appeal is the “lower tribunal”.
The term “lower tribunal” includes courts and administrative agencies. It replaces the terms “commission", “board” and “lower court” defined in the former rules.
The term “order” has been broadly defined to include all final and interlocutory rulings of a lower tribunal and rules adopted by an administrative agency. Minute book entries are excluded from, the definition in recognition of the decisión im Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177 (Fla.1976). It was intended ('that this rule encourage the entry of writ- . ten orders in every case.
The terms “appellant”, “appellee”, “petitioner” and “respondent” have been defined according to the rule applicable to a particular proceeding and generally not according to the legal nature of the proceeding before the court. The term “appellee” has been defined to include the parties against whom relief is sought and all others necessary to the cause. This rule supersedes all statutes concerning the same subject matter, such as Section 924.03, Florida Statutes (1975). It should be noted that where a certiorari proceeding is specifically governed by a rule which only refers to “appellant” and “ap-pellee”, a “petitioner” and “respondent” should proceed as if they were “appellant” and “appellee”, respectively. For example, certiorari proceedings in the Supreme Court involving the Public Service Commission and Industrial Relations Commission are specifically governed by Rule 9.110 even though that rule only refers to “appellant” and “appellee”. The parties in such a cer-tiorari proceeding remain designated as “petitioner” and “respondent”, since as a matter of substantive law the party invoking the Court’s jurisdiction is seeking a writ of certiorari. The same is true of Rule 9.200 governing the record in such certiorari proceedings.
The term “rendition” has been simplified and unnecessary language deleted. The filing requirement of the definition was not intended to conflict with the substantive right of review guaranteed by the Administrative Procedure Act, Section 120.68(1), Florida Statutes (Supp.1976), but to set a point from which certain procedural times could be measured. Motions which postpone the date of rendition have been narrowly limited to prevent deliberate delaying tactics. To postpone rendition the motion must be timely, authorized and one of those listed. However, where the lower tribunal is an administrative agency whose rules of practice denominate motions identical to those listed by a different label, the substance of the motion controls and rendition is postponed accordingly.
The definition of “legal holiday” has been eliminated but its substance has been retained in Rule 9.420(e).
The term “bond” is defined in Rule 9.310(c)(1).
Terms defined in the former rules and not defined here are intended to have their ordinary meanings in accordance with the context of these rules.
Rule 9.030 Jurisdiction of Courts
(a) Jurisdiction of Supreme Court
(1) Appeal Jurisdiction.
(A) The Supreme Court shall review, by appeal:
(i) final orders of courts imposing sentences of death;1
(ii) final orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution.2
(B) When provided by general law, the Supreme Court shall review, by appeal:
(i) final orders of courts imposing sentences of life imprisonment;
(ii) final orders entered in proceedings for the validation of bonds or certificates of indebtedness.3
(2) Certiorari Jurisdiction. The certiorari jurisdiction of the Supreme Court may be sought to review:
(A)decisions of district courts of appeal that:4
(i) affect a class of constitutional or state officers;
(ii) pass upon a question certified to be of great public interest;
(iii) are in direct conflict with a decision of any district court of appeal or of the Supreme Court on the same point of law;
(B) any interlocutory order passing upon a matter which, upon final judgment, would be directly reviewable by the Supreme Court;6
(C) administrative action, including final orders of commissions established by general law having statewide jurisdiction.2
(3)Original Jurisdiction.6 The Supreme Court may issue writs of prohibition to lower tribunals in causes within the jurisdiction of the Court to review; writs of mandamus and quo warranto to state officers and agencies; all writs necessary to the complete exercise of the Court’s jurisdiction; or any justice may issue writs of habeas corpus returnable before the Supreme Court or any justice, a district court of appeal or any judge thereof, or any circuit judge.
(b) Jurisdiction of District Courts of Appeal.
(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal:
(A) final orders1 or2 not directly reviewable by the Supreme Court or a circuit court;
(B) non-final orders of lower tribunals as prescribed by Rule 9.130(a)(3);5
(C) administrative action when provided by general law.2
(2) Certiorari Jurisdiction.6 The certiora-ri jurisdiction of district courts of appeal may be sought to review:
(A) non-final orders of lower tribunals other than as prescribed by Rule 9.130;
(B) final orders of circuit courts acting in their review capacity.
(3) Original Jurisdiction.6 District courts of appeal may issue writs of mandamus, prohibition, quo warranto, common law cer-tiorari and all writs necessary to the complete exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof, or before any circuit judge within the territorial jurisdiction of the court.
(c) Jurisdiction of Circuit Courts.
(1) Appeal Jurisdiction. The circuit courts shall review, by appeal:
(A) final orders of lower tribunals as provided by general law;1 or 2
(B) non-final orders of lower tribunals as prescribed by Rule 9.130(a)(3);6
(C) administrative action when provided by law.2
(2) Certiorari Jurisdiction.6 The certiora-ri jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by Rule 9.130.
(3) Original Jurisdiction.6 Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certiorari, habe-as corpus and all writs necessary to the complete exercise of the courts’ jurisdiction.
1. 9.140: Appeal Proceedings in Criminal Cases.
2. 9.110: Appeal Proceedings: Orders. • Final
3. 9.110 (i): Validation of Bonds.
4. 9.120: Certiorari: to District Courts of Appeal.
5. 9.130: Non-Final Orders.
6. 9.100: Original Proceedings.
Commentary
This rule replaces former Rules 2.1(a)(5) ‘ and 2.2(a)(4). It sets forth the jurisdiction of the Supreme Court, district courts of appeal, and that portion of the jurisdiction of the circuit courts to which these rules apply. It paraphrases Sections 3(b), 4(b) and, in relevant part, 5(b) of Article V of the Florida Constitution. The items stating the certiorari jurisdiction of the Supreme Court and district courts of appeal refer to the constitutional jurisdiction popularly known as the “constitutional certiorari” jurisdiction of the Supreme Court and “comr mon law certiorari” jurisdiction of the district courts of appeal. This rule is not intended to affect the substantive law governing the jurisdiction of any court and should not be considered as authority for the resolution of disputes concerning any court’s jurisdiction. Its purpose is to provide a tool of reference to the practitioner so that ready reference may be made to the specific procedural rule or rules governing a particular proceeding. Footnote references have been made to the rule or rules governing proceedings invoking the listed area of jurisdiction.
This rule does not set forth the basis for the issuance of advisory, opinions by the Supreme Court to the Governor since the power to advise rests with the justices under Article IV, Section 1(c) of the Florida Constitution, and not the Supreme Court as a body. The procedure governing requests from the Governor for advice are set forth in Rule 9.500.
The Advisory Committee considered and rejected as unwise a proposal to permit the chief judge of each judicial circuit to modify the applicability of these rules to his circuit. These rules may be modified in a particular case, of course, by an agreed joint motion of the parties granted by the court so long as the change does not affect jurisdiction.
Rule 9.040 General Provisions
(a) Complete Determination. In all proceedings a court shall have guch jurisdiction as may be necessary for a complete determination of the cause.
(b) Forum. If a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court.
(c) Remedy. If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.
(d) Amendment. At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or de-feet that does not adversely affect the substantial rights of the parties.
(e) Assignments of Error. Assignments of error are neither required nor permitted.
(f) Filing Fees. Filing fees may be paid by check or money order.
(g) Clerks’ Duties. Upon filing of a notice prescribed by these rules, the clerk shall forthwith transmit the fee and a certified copy of the notice, showing the date of filing, to the court. When jurisdiction has been invoked pursuant to Rule 9.030(a)(2)(A)(ii) (certificate of great public interest), the clerk of the district court of appeal shall transmit copies of the certificate and decision with the certified copy of the notice. Notices to review final orders of county and circuit courts in civil cases shall be recorded.
(h) Non-Jurisdictionai Matters. Failure of a clerk or a party timely to file fees or additional copies of notices or petitions shall not be jurisdictional; provided that such failure may be the subject of appropriate sanction.
Commentary
This rule sets forth several miscellaneous matters of general applicability.
Section (a) is derived from the last sentence of former Rule 2.1(a)(5)(a), which concerned direct appeals to the Supreme Court. This provision is intended to guarantee that once the jurisdiction of any court is properly invoked, the court may determine the entire case to the extent permitted by substantive law. This rule does not extend or limit the constitutional or statutory jurisdiction of any court.
Sections (b) and (c) implement Article V, Section 2(a) of the Florida Constitution. Former Rule 2.1(a)(5)(d) authorized transfer when an improper forum was chosen, but the former rules did not address the problem of improper remedies being sought. The Advisory Committee does not consider it to be the responsibility of the court to seek the proper remedy for any party, but a court may not deny relief because a different remedy is proper. Under these provisions a party will not automatically have his case dismissed because he seeks an improper remedy or invokes the jurisdiction of the wrong court. The court must instead treat the case as if the proper remedy had been sought and transfer it to the court having jurisdiction. All filings in the case have the same legal effect as though originally filed in the court to which transfer is made. This rule is intended to supersede Nellen v. State, 226 So.2d 354 (Fla. 1st DCA 1969), where a petition for a common law writ of certiorari was dismissed by the district court of appeal because review was properly by appeal to the appropriate circuit court, and Engel v. City of North Miami, 115 So.2d 1 (Fla.1959), where a petition for a writ of certiorari was dismissed because review should have been by appeal. Under this rule, a petition for a writ of certiorari should be treated as a notice of appeal, if timely.
Section (d) is the appellate procedure counterpart of the harmless error statute, Section 59.041, Florida Statutes (1975). It incorporates the concept contained in former Rule 3.2(c), which provided that deficiencies in the form or substance of a notice of appeal were not grounds for dismissal, absent a clear showing that the adversary had been misled or prejudiced. Amendments should be liberally allowed under this rule, including pleadings in the lower tribunal, where it would not result in irremediable prejudice.
Section (e) is intended to make clear that assignments of error have been abolished by these rules. It is not intended to extend the scope of review to matters other than judicial acts. Where less than the entire record as defined in Rule 9.200(a)(1) is to be filed, Rule 9.200(a)(2) requires service of a statement of the judicial acts for which review is sought. This requirement also applies under Rule 9.140(d). As explained in the Commentary accompanying those provisions, such a statement does not have the same legal effect as an assignment of error under the former rules.
Section (f) permits payment of filing fees by check or money order and carries forward the substance of former Rule 3.2(a), which allowed payments in cash.
Section (g) is derived from former Rules 3.2(a) and (e). Under these rules, notices and fees are filed in the lower tribunal unless specifically stated otherwise. The clerk must transmit the notice and fees immediately. This requirement replaces the provision of the former rules that the notice be transmitted within five days. The Advisory Committee was of the view that no reason existed for any delays. The term “forthwith” should not be construed to prevent the clerk from delaying transmittal of a notice of criminal appeal for which no fee has been filed for the period of time necessary to obtain an order regarding solvency for appellate purposes and the appointment of the public defender for an insolvent defendant. This provision requires recording of the notice where review of a final trial court order in a civil case is sought. When Supreme Court jurisdiction is invoked on the basis of the certification of a question of great public interest, the clerk of the district court of appeal is required to transmit a copy of the certificate and the decision to the Court along with the notice and fees.
Section (h) is intended to implement the decision in Williams v. State, 324 So.2d 74 (Fla.1975), where it was held that only the timely filing of the notice of appeal is jurisdictional. The proviso permits the court to impose sanctions where there is a failure to timely file fees or copies of the notice or petition.
The Advisory Committee considered and rejected as too difficult to implement a proposal of the Bar Committee that the style of a cause should remain the same as in the lower tribunal.
It should be noted that these rules abolish the practice of permitting Florida trial courts to certify questions to an appellate court. The former rules relating to the internal government of the courts and the creation of the Advisory Committee have been eliminated as irrelevant to appellate procedure. At its conference of June 27, however, the Court unanimously voted to establish a committee to, among other things, prepare a set of administrative rules to incorporate matters of internal governance formerly contained in the appellate rules. The Advisory Committee has recommended that its existence be continued by the Supreme Court.
Rule 9.100 Original Proceedings
(a)Applicability. This rule applies to those proceedings which invoke the jurisdiction of the courts described in Rule 9.030(a)(2)(B); (a)(3); (b)(2); (b)(3); (c)(2) and (c)(3) for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, habeas corpus and all writs necessary to the complete exercise of the courts’ jurisdiction; and for review of non-final administrative action.
(b) Commencement. The original jurisdiction of the court shall be invoked by filing a petition, accompanied by a filing fee if prescribed by law, with the clerk of the court deemed to have jurisdiction.
(c) Exception; Common Law Certiorari. A petition for common law certiorari shall be filed within 30 days of rendition of the order to be reviewed. A copy shall be furnished to the person (or chairperson of a collegial administrative agency) issuing the order.
(d) Exception; Orders Excluding Press or Public.
(1) A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential, shall be filed in the appropriate district court of appeal as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral. A copy shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, and to the parties to the proceeding.
(2) The district court shall immediately consider the petition to determine whether a stay of proceedings in the lower tribunal is appropriate, and on its own motion or that of any party the court may order a stay on such conditions as may be appropriate.
(3) If requested by the petitioner or any party, or on its own motion, the court may allow oral argument.
(e) Petition. The caption shall contain the name of the court and the name and designation of at least one party on each side. The petition shall contain:
(1) the basis for invoking the jurisdiction of the court;
(2) the facts upon which the petitioner relies;
(3) the nature of the relief sought; and
(4) argument in support thereof and appropriate citations of authority.
When the petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by Rule 9.220.
(f) Order to Show Cause. If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. In prohibition proceedings, such orders shall stay further proceedings in the lower tribunal.
(g) Record. A record shall not be transmitted to the court unless ordered.
(h) Response. Within the time set by the court, the respondent may serve a response, which shall include argument in support thereof and appropriate citations of authority, and may serve a supplemental appendix.
(i) Reply. Within 20 days thereafter or such other time set by the court, the petitioner may serve a reply and supplemental appendix.
Commentary
This rule replaces former Rule 4.5, except that the procedures applicable to Supreme Court review of decisions of the district courts of appeal on writs of constitutional certiorari are set forth in Rule 9.120; and Supreme Court direct review of administrative action on writs of certiorari is governed by Rule 9.110. This rule governs proceedings invoking the Supreme Court’s jurisdiction to review an interlocutory order passing upon a matter where on final judgment a direct appeal would lie in the Supreme Court. The procedures set forth in this rule implement the Supreme Court’s decision in Burnsed v. Seaboard Coastline R.R. Co., 290 So.2d 13 (Fla.1974), that such interlocutory review rests solely within its discretionary certiorari jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution, and that its jurisdiction would be exercised only where on the peculiar circumstances of a particular case the public interest required it. This rule abolishes the wasteful current practice in such cases of following the procedures governing appeals, with the Supreme Court treating such appeals as petitions for the writ of certiorari. This rule requires that these cases be prosecuted as petitions for the writ of certiorari.
This rule also provides the procedures necessary to implement the Administrative Procedure Act, Section 120.68(1), Florida Statutes (Supp.1976), which provides for judicial review of non-final agency action “if review of the final agency decision would not provide an adequate remedy.” It was the opinion of the Advisory Committee that such a right of review is guaranteed by the statute and is not dependent on a court rule, since Article V, Section 4(b)(2) of the Florida Constitution provides for legislative grants of jurisdiction to the district courts to review administrative action without regard to the finality of that action. The Advisory Committee was also of the view that the right of review guaranteed by the statute is no broader than the generally available common law writ of certiorari, although the statutory remedy would prevent resort to an extraordinary writ.
Sections (b) and (c) set forth the procedure for commencing an extraordinary writ proceeding. The time for filing a petition for common law certiorari is jurisdictional. Where common law certiorari is sought to review an order issued by a lower tribunal consisting of more than one person, a copy of the petition should be furnished to the chairperson of that tribunal.
Section (d) sets forth the procedure for appellate review of orders excluding the press or public from access to proceedings or records in the lower tribunal. It establishes an entirely new and independent means of review in the district courts, in recognition of the decision in English v. McCrary, 348 So.2d 293 (Fla.1977), to the effect that a writ of prohibition is not available as a means to obtain review of such orders. Copies of the notice must be served on all parties to the proceeding in the lower tribunal, as well as the person who, or the chairperson of the agency which issued the order.
No provision has been made for an automatic stay of proceedings, but the district court is directed to consider the appropriateness of a stay immediately upon the notice being filed. Ordinarily an order excluding the press and public will be entered well, in advance of the closed proceedings in the lower tribunal, so that there will be no interruption of the proceeding by reason of the appellate review. In the event a challenged order is entered immediately before or during the course of a proceeding and it appears that a disruption of the proceeding will be prejudicial to one or more parties, the reviewing court on its own motion or at the request of any party shall determine whether to enter a stay or to allow the lower tribunal to proceed pending review of the challenged order. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 911 (Fla.1977).
This new provision implements the “strict procedural safeguards” requirement laid down by the United States Supreme Court in National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). In that case the Court held that state restraints imposed on activities protected by the First Amendment must either be immediately reviewable or subject to a stay pending review.
Section (e) sets forth the contents of the initial pleading. The party seeking relief must file a petition stating the authority by which the court has jurisdiction of the case, the relevant facts, the relief sought and. argument supported by citations of authority. This rule does not allow the petitioner to file a brief. Any argument or citations of authority which the petitioner desires to place before the court must be contained in the petition. This change in procedure is intended to eliminate the wasteful current practice of filing repetitive petitions and briefs. Under section (g) no record is required to be filed unless the court so orders, but under section (e) the petitioner must file an appendix to the petition containing conformed copies of the order to be reviewed and other relevant material, including portions of the record, if a record exists. The appendix should also contain any documents which support the allegations of fact contained in the petition. A lack of supporting documents may, of course, be considered by the court in exercising its discretion not to issue an order to show cause.
Under sections (f), (h) and (i), if the allegations of the petition, if true, would constitute grounds for relief, the court may exercise its discretion to issue an order requiring the respondent to show cause why the requested relief should not be granted. A single responsive pleading (without a brief) may then be served, accompanied by a supplemental appendix, within the time period set by the court in its order to show cause. The petitioner is then allowed 20 days to serve a reply and supplemental appendix, unless the court sets another time. It should be noted that the times for response and reply are computed by reference to service rather than filing. This practice is consistent throughout these rules except for initial, jurisdictional filings. The emphasis on service, of course, does not relieve counsel of the responsibility for filing original documents with the court as required by Rule 9.420(b); it merely affects the time measurements.
Except as provided automatically under section (f), a stay pending resolution of the original proceeding may be obtained under Rule 9.310.
Transmittal of the record pursuant to order of the court under section (g) shall be in accordance with the instructions and times set forth in the order.
Rule 9.110 Appeal Proceedings to Review Final Orders of Lower Tribunals and •' Orders Granting New Trial in Jury and Non-Jury Cases
(a) Applicability. This rule applies to those proceedings which:
(1) invoke the appeal jurisdiction of the courts described in Rule 9.030(a)(1);
(b)(1)(A) and (c)(lXA);
(2) seek review of administrative action described in Rule 9.030(a)(2)(C); (b)(1)(C) and (c)(1)(C); and
(3) seek review of orders granting new trial in jury and non-jury civil and criminal cases described in Rules 9.130 and 9.140(c)(1)(C).
(b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing two copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.
(c) Exception; Administrative Action. In appeal of administrative action, the appellant shall pay the fee and file the second copy of the notice with the court.
(d) Notice. The notice shall be substantially in the form prescribed by Rule 9.900. The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition and the nature of the order to be reviewed.
(e) Record. Within 50 days of filing the notice, the clerk shall prepare the record prescribed by Rule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the clerk shall transmit the record to the court.
(f) Briefs. Appellant’s initial brief shall be served within 70 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.
(g) Cross Appeal. An appellee may cross appeal by serving a notice within 10 days of service of the appellant’s notice or within the time prescribed in section (b) of this rule, whichever is later. No filing fee shall be required for a cross appeal.
(h) Scope of Review. The court may review any ruling or matter occurring prior to filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.
(i) Exception; Bond Validation Proceedings. Where the appeal is from an order in a proceeding to validate bonds or certificates of indebtedness, the record shall not be transmitted unless ordered by the Supreme Court. Appellant’s initial brief, accompanied by an appendix as prescribed by Rule 9.220, shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.
(j) Exception; Appeal Proceedings from District Courts of Appeal. Where the appeal is from an order of a district court of appeal, the clerk shall transmit the record to the court within 60 days of filing the notice. Appellant’s initial brief shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.
Commentary
This rule replaces former Rules 3.1, 3.5, 4.1, 4.3, 4.4 and 4.7. It applies where (1) a final order has been entered by a court or administrative agency; (2) a motion for a new trial in a jury case is granted; or (3) a motion for rehearing in a non-jury case is granted and the lower tribunal orders new testimony. It should be noted that certain other non-final orders entered after final order are reviewable under the procedure set forth in Rule 9.130. This rule does not apply to review proceedings in such cases.
Except to the extent of conflict with Rule 9.140 governing appeals in criminal cases, this rule governs: (1) appeals as of right to the Supreme Court; (2) certiorari proceedings before the Supreme Court seeking direct review of administrative action (for example, Industrial Relations Commission and Public Service Commission); (3) appeals as of right to a district court of appeal, including petitions for review of administrative action under the Administrative Procedure Act, Section 120.68, Florida Statutes (Supp.1976); (4) appeals as of right to a circuit court, including review of administrative action when provided by law.
This rule is intended to clarify the procedure for review of orders granting a new trial. Rules 9.130(a)(4) and 9.140(c)(1)(C) authorize the appeal of orders granting a motion for new trial. Those rules supersede Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla.1974), and are consistent with the.; decision there. In civil cases the procedures to be followed are those set forth in this rule. Under section (h) of this rule the scope of review of the court is not necessarily limited to the order granting a new trial. The Supreme Court has held that “appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible . . . Bowen v. Willard, 340 So.2d 110, 112 (Fla.1976). This rule implements that decision.
Sections (b) and (c) establish the procedure for commencing an appeal proceeding. Within 30 days of the rendition of the final order the appellant must file two copies of the notice of appeal, accompanied by the appropriate fees, with the clerk of the lower tribunal; except that where review of administrative action is sought, one copy of the notice and the applicable fees must be filed in the court. Failure to file any notice within the 30 day period constitutes an irremediable jurisdictional defect, but the second copy and fees may be filed after the 30 day period, subject to sanctions imposed by the court. See Fla.R.App.P. 9.040(h), and Williams v. State, 324 So.2d 74 (Fla.1975).
Section (d) sets forth the contents of the notice, and eliminates the requirement of the former rule that the notice show the place of recordation of the order to be reviewed. The rule requires substantial compliance with the form approved by the Supreme Court. The date of rendition of the order for which review is sought must appear on the face of the notice. See the definition of “rendition” in Florida Rule of Appellate Procedure 9.020, and see the judicial construction of “rendition” for an administrative rule in Florida Admin. Comm’n v. Judges of the District Court, 351 So.2d 712, Case No. 50,242 (Fla. Oct. 14, 1977), on review of Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1976). This requirement is intended to allow the clerk of the court to determine the timeliness of the notice from its face. The Advisory Committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.
This rule works significant changes in the review of final administrative action. The former rules required that a traditional petition for the writ of certiorari be filed when Supreme Court review was appropriate and the practice under the Administra-tive Procedure Act, Section 120.68, Florida Statutes (Supp.1976), has been for the “petition for review” to be substantially similar to a petition for the writ of certiorari. See Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975). This rule eliminates the need for true petitions in •such cases. Instead, a simple notice is filed, to be followed later by briefs. It is intended that the notice constitute the petition required in Section 120.68(2), Florida Statutes (Supp.1976). There is no conflict with the statute since the substance of the review proceeding remains controlled by the statute and the Legislature directed review be pursuant to the procedures set forth in these rules. Since it is a requirement of rendition that an order be written and filed, this rule supersedes Shevin ex rel. State v. Public Service Comm’n, 333 So.2d 9 (Fla.1976), and School Bd. of Lee County v. Malbon, 341 So.2d 523 (Fla. 2d DCA 1977), to the extent that those decisions assume that reduction of an order to writing is unnecessary for judicial review.
This rule is not intended to affect the discretionary nature of direct Supreme Court review of administrative action taken pursuant to the certiorari jurisdiction of that Court set forth in Article V, Section 3(b)(3) of the Florida Constitution. Such proceedings remain in certiorari with the only change being to replace wasteful, repetitive petitions for the writ of certiorari with concise notices followed at a later date by briefs. The parties to such actions should be designated as “petitioner” and “respondent” despite the use of the terms “appellant” and “appellee” in this rule. See Commentary, Fla.R.App.P. 9.020.
Sections (e), (f) and (g) set the times for preparation of the record, serving copies of the index on the parties, serving briefs and serving notices of cross appeal. Provision for cross appeal notices has been made to replace the cross assignments of error eliminated by these rules. In certiorari proceedings governed by this rule the term “cross appeal” should be read as equivalent to “cross petition”. It should be noted that where time is measured by service, Rule 9.420(b) requires filing to be made before service or immediately thereafter.
Section (h) permits a party to file a single notice of appeal where a single proceeding in the lower tribunal, whether criminal or civil, results in more than one final judgment and an appeal of more than one is sought. This rule is intended to further the policies underlying the decisions of the Supreme Court in Scheel v. Advance Marketing Consultants, Inc., 277 So.2d 773 (Fla.1973), and Hollimon v. State, 232 So.2d 394 (Fla.1970). This rule does not authorize the appeal of multiple final judgments unless otherwise proper as to each. Where a prematurely filed notice is held in abeyance in accordance with Williams v. State, 324 So.2d 74 (Fla.1975), the date of filing is intended to be the date the notice becomes effective.
Section (i) provides an expedited procedure in appeals as of right to the Supreme Court in bond validation proceedings. An appendix is mandatory.
Section (j) provides for an expedited procedure in appeals as of right to the Supreme Court from an order of a district court of appeal.
Rule 9.120 Certiorari Proceedings to Review Orders of District Courts of Appeal
(a) Applicability. This rule applies to those proceedings which invoke the certiorari jurisdiction of the Supreme Court described in Rule 9.030(a)(2)(A).
(b) Commencement. The jurisdiction of the Supreme Court described in Rule 9.030(a)(2)(A) shall be invoked by filing two copies of a notice, accompanied by the filing fees prescribed by law, with the clerk of the district court of appeal within 30 days of rendition of the order to be reviewed.
(c) Notice. The notice shall be substantially in the form prescribed by Rule 9.900. The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. The notice shall contain the date of rendition of the order to be reviewed and the basis for invoking the jurisdiction of the court.
(d) Briefs on Jurisdiction. Petitioner’s brief, limited solely to the issue of the Supreme Court’s jurisdiction and accompanied by an appendix containing a conformed copy of the decision of the district court of appeal, shall be served within 10 days of filing the notice. Respondent’s brief on jurisdiction shall be served within 20 days after service of petitioner’s brief. A reply brief may be served within 10 days thereafter. When jurisdiction is invoked pursuant to Rule 9.030(a)(2)(A)(ii) (certificate of great public interest), no briefs on jurisdiction shall be filed.
(e) Accepting or Postponing Decision on Jurisdiction; Record. If the Supreme Court accepts or postpones decision on jurisdiction, the Court shall so order and advise the parties and the clerk of the district court of appeal. Within 60 days thereafter or such other time set by the Court, the clerk shall transmit the record.
(f) Briefs on Merits. Within 20 days of rendition of the order accepting or postponing decision on jurisdiction, the petitioner shall serve the initial brief on the merits. Additional briefs shall be served as prescribed by Rule 9.210.
Commentary
This rule replaces former Rule 4.5(c) and governs all certiorari proceedings to review final decisions of the district courts. Cer-tiorari proceedings to review interlocutory orders of the district courts where Supreme Court jurisdiction exists under Article V, Section 3(b)(3) of the Florida Constitution are governed by Rule 9.100.
Section (b) sets forth the manner in which certiorari proceedings in the Supreme Court are to be commenced. Petitions for the writ are abolished and replaced by a simple notice to be followed by briefs. Two copies of the notice, which must substantially comply with the form approved by the Supreme Court, are to be filed with the clerk of the district court within 30 days of rendition along with the requisite fees. Failure to timely file the fees is not jurisdictional.
Section (c) sets forth the contents of the notice. The requirement that the notice state the date of rendition, as defined in Rule 9.020, is intended to permit the clerk of the court to determine timeliness from the face of the notice. The statement of the basis for jurisdiction should be a concise reference to whether the order sought to be reviewed (1) conflicts with other Florida appellate decisions; (2) affects a class of constitutional or state officers; or (3) involves a question of great public interest certified by the district court.
Section (d) establishes the time for filing jurisdictional briefs and prescribes their content. When Supreme* Court jurisdiction is based on certification of a question of great public interest no jurisdictional briefs are permitted. Briefs on the merits in such cases are to be prepared in the same manner as in other cases.. Briefs on the merits are to be served within the time provided after the Court has ruled that it will accept jurisdiction or has ruled that it will postpone decision on jurisdiction.
The jurisdictional brief should be a short, concise statement of the grounds for invoking jurisdiction and the necessary facts. It is not appropriate to argue the merits of the substantive issues involved in ,the case or discuss any matters not relevant to the threshold jurisdictional issue. The petitioner may wish to include a very short statement of why the Supreme Court should exercise its discretion and entertain the case on the merits if it finds it does have certiorari jurisdiction. An appendix must be filed containing a conformed copy of the decision of the district court. If the decision of the district court was without opinion, or otherwise does not set forth the basis of decision with sufficient clarity to enable the Supreme Court to determine whether grounds for jurisdiction exist, a conformed copy of the order of the trial court should also be included in the appendix.
Sections (e) and (f) provide that within 60 days of the date of the order accepting jurisdiction, or postponing decision on jurisdiction, the clerk of the district court must transmit the record to the Court. The petitioner has 20 days from the date of the order to serve the initial brief on the merits. Other briefs may then be served in accordance with Rule 9.210. Briefs which are served must be filed in accordance with Rule 9.420.
It should be noted that the automatic stay provided by former Rule 4.5(c)(6) has been abolished because it encouraged the filing of frivolous petitions and was regularly abused. A stay pending review may be obtained under Rule 9.310. If a stay has been ordered pending appeal to a district court, it remains effective under Rule 9.310(e) unless the mandate issues or the district court vacates it. The Advisory Committee was of the view that the district courts should permit such stays only where essential. Factors to be considered are the likelihood that jurisdiction will be accepted by the Supreme Court, the likelihood of ultimate success on the merits, the likelihood of harm if no stay is granted and the remediable quality of any such harm.
Rule 9.130 Proceedings to Review Non-Final Orders
(a) Applicability.
(1) This rule applies to review of the non-final orders authorized herein in the district courts of appeal and the circuit courts. Review of other non-final orders in such courts, non-final orders in the Supreme Court, and non-final administrative action shall be by the method prescribed by Rule 9.100.
(2) Review of non-final orders in criminal cases shall be as prescribed by Rule 9.140.
(3) Review of non-final orders of lower tribunals is limited to those which:
(A) concern venue;
(B) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) jurisdiction of the person;
(ii) right to immediate possession of property;
(iii) right to immediate monetary relief or child custody in domestic relations matters; or
(iv) the issue of liability in favor of a party seeking affirmative relief.
(4) Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.
(5) Orders entered on motions filed pursuant to Fla.R.Civ.P. 1.540 are reviewable by the method prescribed by this rule.
(6) Review authorized by this rule shall be by the court which has jurisdiction' to review the final order in the cause.
(b) Commencement. The jurisdiction to seek review of orders described in subsections (a)(3)-(5) shall be invoked by filing two copies of a notice, accompanied by the filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.
(c) Notice. The notice, designated as a notice of interlocutory appeal, shall be substantially in the form prescribed by Rule 9.110(d).
(d) Record. A record shall not be transmitted to the court unless ordered.
(e) Briefs. Appellant’s initial brief, accompanied by an appendix as prescribed by xRule 9.220, shall be served within 15 days of filing the notice. Additional briefs shall be ■ served as prescribed by Rule 9.210.
(f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not re