In re Amendments to the Florida Rules of Appellate Procedure (609 So. 2d 516, 1992)

Florida Supreme Court 1992-10-22

Citations

Full opinion text

PER CURIAM.

The Florida Bar Appellate Court Rules Committee has submitted for our consideration its quadrennial report of proposed amendments to the Florida Rules of Appellate Procedure pursuant to Rule of Judicial Administration 2.130. The Board of Governors of the Florida Bar has given unanimous approval to the proposed amendments. After full consideration of the recommendations of the Appellate Rules Committee, and the comments received from interested members of the Bar, we amend the rules as set forth below. While we have adopted, in large part, the Committee’s recommendations, we have modified the proposed rules where we deemed necessary.

At this time we do not accept the Committee’s proposed amendments to rule 9.130(a)(3)(C)(iv) (review of non-final orders), rule 9.140(c)(l)(I) (appeals by the state), or rule 9.330(a) (rehearing, clarification, or certification).

The following is a brief explanation of the substantive rule changes approved by this Court.

Rule 9.010 is amended to eliminate the statement that the Florida Rules of Appellate Procedure supercede all conflicting rules.

Rule 9.020(g) is amended to ensure that an authorized motion for clarification falls within those types of motions that delay rendition. Subdivision (g) is further amended to clarify that, in a multiparty situation, a single order can be “rendered” at different times depending upon when the trial court resolved authorized post-trial motions between particular parties.

Rule 9.040(h) is amended to provide that the failure to attach conformed copies of the order or orders designated in the notice of appeal is not a jurisdictional defect.

Rule 9.100(b) is amended to eliminate the practice of bringing original proceedings on the relation of the state and requires that all parties in the lower tribunal be named as either petitioners or respondents. Subdivision (c) is amended to create a special category for appellate review of final quasi-judicial actions of various agencies, boards, and commissions of local government.

Rule 9.110(m) is amended to expressly allow a premature appeal to be perfected by the filing of a final order prior to dismissal.

Rules 9.110(d), 9.130(c), and 9.160(c), and the forms contained at rule 9.900(a), (c), and (e), are amended to require that, except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal be attached to the notice or sent within 30 days to the reviewing court.

Rule 9.130 is amended to permit appeals from non-final orders granting or denying the certification of a class and from the appointment of a receiver or the termination of a receivership. Subdivision (a)(3)(C)(vi) incorporates the amendment approved in Mandico v. Taos Construction, Inc., 605 So.2d 850 (Fla.1992), permitting appeals from non-final orders that determine that a party is not entitled to workers’ compensation immunity as a matter of law.

Rule 9.140(b)(3)(A)(v) is amended, among other things, to prohibit the withdrawal of private counsel in public-funded cases until substitute counsel has been obtained or appointed. Rule 9.140(g) is amended to ensure that denials of motions made pursuant to Florida Rule of Criminal Procedure 3.800(a) have a specific review path to the appellate courts. We reject at this time, however, the additional proposal that would have eliminated briefs, except by court permission, for 3.800 and 3.850 appeals.

Rule 9.200 is amended to standardize the lower court clerk’s procedure with respect to the placement and pagination of the transcript in the record on appeal.

Rule 9.210(a)(2) is rewritten to require that all typewritten material in briefs, whether in the text or in footnotes, will be of the same size and the same spacing. Subdivision (g) is amended to provide that notices of supplemental authority may call the court’s attention to any authority discovered after the last brief was served. The amendment further provides that the notices may identify briefly the points on appeal to which the supplemental authorities are pertinent.

Rule 9.220 is amended to encourage the reduction of 8.5 by 14 inch appendix documents to 8.5 by 11 inches, if practical, and requires such documents to be bound separately if reduction is impractical.

Rule 9.300(b) is amended to provide that orders extending the time for the preparation of the record, the index to the record, or a transcript, automatically extend for the same period the time for service of the initial brief.

Rule 9.310(c)(1) is amended to eliminate the ability of a party posting a bond to do so through the use of two personal sureties.

Rule 9.800 is updated to make the citation format more accurate and uniform, and was amended to clarify that the rule applies to all legal documents, including court opinions. The ámended rule makes clear that the abbreviation for the Southern Reporter, Second Series should appear, as it does in The Bluebook: A Uniform System of Citation (15th ed. 1992), with a space between the “So.” and the “2d.” The abbreviations for “Florida Law Weekly” and “Florida Law Weekly Federal” are changed to “Fla. L. Weekly” and “Fla. L. Weekly Fed.,” respectively. Also, the wording “except in footnotes” is deleted from subdivision (o) to clarify that case names should be underscored in both text and footnotes. Finally, subdivision (k) is amended to indicate that, when citing decisions of the United States Supreme Court, all subsequent citations and pinpoint citations shall be to the United States Reports only.

Appended to this opinion are the new Florida Rules of Appellate Procedure. Deletions are indicated by the use of struck-through type. New language is indicated by underscoring. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules. These amendments shall become effective January 1, 1993, at 12:01 a.m.

It is so ordered.

BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.

APPENDIX

FLORIDA RULES OF APPELLATE PROCEDURE

9.010. EFFECTIVE DATE AND SCOPE [AMENDED]

9.020. DEFINITIONS [AMENDED]

9.030. JURISDICTION OF COURTS [AMENDED]

9.040. GENERAL PROVISIONS [AMENDED]

9.100. ORIGINAL PROCEEDINGS [AMENDED]

9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES [AMENDED]

9.120. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL [AMENDED]

9.125. REVIEW OF TRIAL COURT ORDERS AND JUDGMENTS CERTIFIED BY THE DISTRICT COURTS OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT [Editorial Changes Only] [AMENDED]

9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS [AMENDED]

APPEAL PROCEEDINGS IN CRIMINAL CASES [AMENDED] o

DISCRETIONARY PROCEEDINGS TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS [Editorial Changes Only] [AMENDED] o LO

9.160. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS [AMENDED]

9.200. THE RECORD [AMENDED]

9.210. BRIEFS [AMENDED]

9.220. APPENDIX [AMENDED]

9.300. MOTIONS [AMENDED]

9.310. STAY PENDING REVIEW [AMENDED]

9.315. EXPEDITED DISPOSITION [Editorial Changes Only] [AMENDED]

9.320. ORAL ARGUMENT [Editorial Changes Only] [AMENDED]

9.330. REHEARING; CLARIFICATION; CERTIFICATION [Editorial Changes Only] [AMENDED]

9.331. DETERMINATION OF CAUSES IN A DISTRICT COURT OF APPEAL EN BANC [AMENDED]

9.340. MANDATE [Editorial Changes Only] [AMENDED]

9.350. DISMISSAL OF CAUSES [Editorial Changes Only] [AMENDED]

9.360. PARTIES [Editorial Changes Only] [AMENDED]

9.370. AMICUS CURIAE [Editorial Changes to Committee Notes Only] [NO CHANGE]

9.400. COSTS AND ATTORNEY’S’ FEES [Editorial Changes Only] [AMENDED]

9.410. SANCTIONS [Editorial Changes Only] [AMENDED]

9.420. FILING; SERVICE OF COPIES; COMPUTATION OF TIME [Editorial Changes Only] [AMENDED]

9.430. PROCEEDINGS BY INDIGENTS [Editorial Changes Only] [AMENDED]

9.440. ATTORNEYS [Editorial Changes to Committee Notes Only] [NO CHANGE]

9.500. ADVISORY OPINIONS TO GOVERNOR [Editorial Changes Only] [AMENDED]

9.600. JURISDICTION OF LOWER TRIBUNAL PENDING REVIEW [Editorial Changes Only] [AMENDED]

9.700. GUIDE TO TIMES FOR ACTS UNDER RULES [Editorial Changes Only] [AMENDED]

9.800. UNIFORM CITATION SYSTEM [AMENDED]

9.900. FORMS [AMENDED]

FLORIDA RULES OF APPELLATE PROCEDURE

INTRODUCTORY COMMITTEE NOTE TO FLORIDA RULES OF APPELLATE PROCEDURE

1977 Revision. — 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 V-ice Chairmen 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-estensive 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 Cour-t-of FIoridar-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-Bowell 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 — MeM-ahon-r-Resear-Gh-oyde to Justice Arthur J. England, Jr.

The Florida appellate rules, 1977 Revision, and accompany-ing-Gommen-tar-y — were submitted by the-^Adv-isory— Committee-to the Florida Supreme Court for its consideration and final approval-on-April -1-3, — 1-97-7-A summary of the proposed rules was published in the Florida-Bar-Journal, following which-the ■-Floridar-Appellate-Rules-Commit-tee--met-to consider changes proposed by the ■ Advisory-Committee. — Oral-argument on-the-proposed-r-ules-was-held-on-J-une-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-s-y-stem — by reducing the cost of appeals, by standardizing and expediting the appellate process, and by — eliminating—unnecessar-y-technical procedures-which-have at times frustrated the-cause of justice.

RULE 9.010. EFFECTIVE DATE AND SCOPE "

These rules, cited as “Florida Rules of Appellate Procedurez”7 and abbreviated “Fla. R. App. P./’y 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 Ssupreme Ccourt, the district courts of appeal, and the circuit courts in the exercise of the jurisdiction described by Rrule 9.030(e); 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 revisionAmendment. These rules shall supersede all conflicting rules and statutes.

Committee Notes

1977 RevisionAmendment. 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 Rrule 9.800(h).

This rule sets an effective date and retains the substance of former Rrules 1.1, 1.2¿ and 1.4. A transition provision has been incorporated to make clear that proceedings already in the appellate stage pri- or tobefore 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 Rrule 9.030(c) in order to clarify those aspects of the jurisdiction of the circuit courts governed by these rules.

1992 Amendment. This rule was amended to eliminate the statement that the Florida Rules of Appellate Procedure supersede all conflicting rules. Other sets of Florida rules contain provisions applicable to certain appellate proceedings, and, in certain instances, those rules conflict with the procedures set forth for other appeals under these rules. In the absence of a clear mandate from the supreme court that only the Florida Rules of Appellate Procedure are to address appellate concerns, the committee felt that these rules should not automatically supersede other rules. See, e.g., In the Interest of E.P. v. Department of Health and Rehabilitative Services, 544 So.2d 1000 (Fla. 1989).

RULE 9.020. DEFINITIONS

The following terms have the meanings shown as used in these rules:

(a) Administrative Action. aAn order of any public official, including the ©governor in the exercise of all executive powers other than those derived from the ©constitution, or of a deputy commissionerjudge of compensation claims on a claim for birth-related neurological injuries, or of any agency, department, board, or commission of the Sstate or any political subdivision, including municipalities.

(b) Clerk. tThe 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. tThe Ssupreme ©court; the district courts of appeal; and the circuit courts in the exercise of the jurisdiction described by Rrule 9.030(c)j, and-includes-ing the ©chief Jjustice of the Ssupreme ©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. tThe court, agency, officer, board, commission or body whose order is to be reviewed.

(e) Order. aA decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries.

(f) Parties.

(1) Appellant. aA 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. aA party who seeks an order under Rrule 9.100 or Rrule 9.120.

(4) Respondent. «Every other party in a proceeding brought by a petitioner.

(g) Rendition (of an Order), the filing of An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. WhereHowever, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, clarification, or certification7; to alter or amende for judgment notwithstanding verdict or in accordance with prior motion for directed verdict, notwithstanding ver-die© or in arrest of judgment*; or a challenge to the verdict, the order shall not-be deemed rendered until disposition thereof. the following exceptions apply:

(1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.

(2) If such a motion or motions have been filed, a signed, written order granting a new trial shall be deemed rendered when filed with the clerk, notwithstanding that other such motions may remain pending at the time.

(3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.

Committee Notes

1977 RevisionAmendment. This rule supersedes former Rrule 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 wherein which 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, Cchapter 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 Aarticle VIII, Ssection 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 whereif 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 Gchief Jjus-tice of the Ssupreme Ccourt and the chief judges of the district courts of 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. Whenlf Ssupreme Gcourt 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 decision in Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So._2d 177 (Fla._1976). It was intended that this rule encourage the entry of written 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 Ssection 924.03, Florida Statutes (1975). It should be noted that whsreif a certiorari proceeding is specifically governed by a rule whichthat only refers to “appellant” and “appellee/’, a “petitioner” and “respondent” should proceed as if they were “appellant” and “ap-pellee/’y respectively. For example, certio-rari proceedings in the Ssupreme Ccourt involving the Public Service Commission and Industrial Relations Commission are specifically governed by Rrule 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/’, — sineebe-cause as a matter of substantive law the party invoking the Ccourt’s jurisdiction is seeking a writ of certiorari. The same is true of Rrule 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, Ssection 120.68(1), Florida Statutes (Supp.1976), but to set a point from which certain procedural times could be measured. Motions whichthat postpone the date of rendition have been narrowly limited to prevent deliberate delaying tactics. To postpone rendition the motion must be timely, authorizedj and one of those listed. However, whereif 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 Rrule 9.420(e).

The term “bond” is defined in Rrule 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.

1992 Amendment. Subdivision (a) has been amended to reflect properly that deputy commissioners presently are designated as judges of compensation claims.

Subdivision (g) has been rewritten extensively. The first change in this rule was to ensure that an authorized motion for clarification (such as under rule 9.330) was included in those types of motions that delay rendition.

Subdivision (g) also has been revised in several respects to clarify some problems presented by the generality of the prior definition of “rendition.” Although rendition is postponed in most types of cases by the filing of timely and authorized post-judgment motions, some rules of procedure explicitly provide to the contrary. The subdivision therefore has been qualified to provide that conflicting rules shall control over the general rule stated in the subdivision. See In Re Interest of E.P., 544 So. 2d 1000 (Fla. 1989). The subdivision also has been revised to make explicit a qualification of long standing in the decisional law, that rendition of non-final orders cannot be postponed by motions directed to them. Not all final orders are subject to postponement of rendition, however. Rendition of a final order can be postponed only by an “authorized” motion, and whether any of the listed motions is an “authorized” motion depends on the rules of procedure governing the proceeding in which the final order is entered. See Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986), review denied 494 So. 2d 1153.

Subdivision (g)(1) has been added to clarify the date of rendition when post-judgment motions have been filed. If there is only 1 plaintiff and 1 defendant in the case, the filing of a post-judgment motion or motions by either party (or both parties) will postpone rendition of the entire final order as to all claims between the parties. If there are multiple parties on either or both sides of the case and less than all parties file post-judgment motions, rendition of the final order will be postponed as to all claims between moving parties and parties moved against, but rendition will not be postponed with respect to claims disposed of in the final order between parties who have no post-judgment motions pending between them with respect to any of those claims. See, e.g., Phillips v. Ostrer, 442 So. 2d 1084 (Fla. 3d DCA 1983).

Ideally, all post-judgment motions should be disposed of at the same time. See Winn-Dixie Stores, Inc, v. Robinson, 472 So. 2d 722 (Fla. 1985). If that occurs, the final order is deemed rendered as to all claims when the order disposing of the motions is filed with the clerk. If all motions are not disposed of at the same time, the final order is deemed rendered as to all claims between a moving party and a party moved against when the written order disposing of the last remaining motion addressed to those claims is filed with the clerk, notwithstanding that other motions filed by co-parties may remain pending. If such motions remain, the date of rendition with respect to the claims between the parties involved in those motions shall be determined in the same way.

Subdivision (g)(2) has been added to govern the special circumstance that arises when rendition of a final order has been postponed initially by post-judgment motions, and a motion for new trial then is granted. If the new trial has been granted simply as an alternative to a new final order, the appeal will be from the new final order. However, if a new trial alone has been ordered, the appeal will be from the new trial order. See rule 9.110, According to the decisional law, rendition of such an order is not postponed by the pendency of any additional, previously filed post-judgment motions, nor can rendition of such an order be postponed by the filing of any further motion. See Frazier v. Seaboard System Railroad, Inc., 508 So. 2d 345 (Fla. 1987). To ensure that subdivision (g)(1) is not read as a modification of this special rule, subdivision (g)(2) has been added to make it clear that a separately appealable new trial order is deemed rendered when filed, notwithstanding that other post-judgment motions directed to the initial final order may remain pending at the time.

Subdivision (g)(3) has been added to clarify the confusion generated by a dictum in Williams v. State, 324 So. 2d 74 (Fla. 1975), which appeared contrary to the settled rule that post-judgment motions were considered abandoned by a party who filed a notice of appeal before their disposition. See In Re: Forfeiture of $104,591 in U.S. Currency, 578 So. 2d 727 (Fla. 3d DCA 1991). The new subdivision confirms that rule, and provides that the final order is rendered as to the appealing party when the notice of appeal is filed. Although the final order is rendered as to the appealing party, it is not rendered as to any other party whose post-judgment motions are pending when the notice of appeal is filed.

RULE 9.030. JURISDICTION OF COURTS

(a) Jurisdiction of Supreme Court.

(1) Appeal Jurisdiction.

(A) The Ssupreme Ccourt shall review, by appeak

(i) final orders of courts imposing sentences of death;1

(ii) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.2

(B) W-henlf provided by general law, the Ssupreme Ccourt shall review;

(1) by appeal final orders entered in proceedings for the validation of bonds or certificates of indebtedness;3

(ii) action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service.4

(2) Discretionary Jurisdiction. The discretionary jurisdiction of the Ssupreme Ccourt may be sought to review;

(A) decisions of district courts of appeal that;5

(i) expressly declare valid a state statute;

(ii) expressly construe a provision of the state or federal constitution;

(iii) expressly affect a class of constitutional or state officers;

(iv) expressly and directly conflict with a decision of another district court of appeal or of the Ssupreme Ccourt on the same question of law;

(v) pass upon a question certified to be of great public importance;

(vi) are certified to be in direct conflict with decisions of other district courts of appeal;

(B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the Ssupreme Ccourt, and;6

(i) to be of great public importance, or

(ii) to have a great effect on the proper administration of justice;

(C) questions of law certified by the Supreme Court of the United States or a United States Ccourt of Aappeals that are determinative of the cause of action and for which there is no controlling precedent of the Supreme Court of Florida.7

(3) Original Jurisdiction. The Ssu-preme Ccourt may issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction^ and may issue writs of mandamus and quo warranto to state officers and state agencies. The Ssupreme Ccourt or any justice may issue writs of habeas corpus returnable before the Ssupreme Ccourt or any justice, a district court of appeal or any judge thereof, or any circuit judge.8

(b) Jurisdiction of District Courts of Appeal.

(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal;

(A) final orders of trial courts,1'2 not directly reviewable by the Ssupreme Ccourt or a circuit court;

(B) non-final orders of circuit courts as prescribed by Rrule 9.130;9

(C) administrative action wheaif provided by general law.2

(2) Certiorari Jurisdiction.8 The certio-rari jurisdiction of district courts of appeal may be sought to review;

(A) non-final orders of lower tribunals other than as prescribed by Rrule 9.130;

(B) final orders of circuit courts acting in their review capacity.

(3) Original Jurisdiction.8 District courts of appeal may issue writs of mandamus, prohibition, quo warranto, and common law certiorari2 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.

(4) Discretionary Review.10 District courts of appeal^ may in their discretion may review by appeal;

(A) final orders of the county court otherwise appealable to the circuit court under these rules whichthat the county court has certified to be of great public importance;

(B) nomfinal orders otherwise appealable to the circuit court under rule 9.140(c) whichthat the county court has certified to be of great public importance.

(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;1-2

(B) non-final orders of lower tribunals as prescribed by Rrule 9.130(a)(3);9

(C) administrative action whenif provided by general law.

(2) Certiorari Jurisdiction.8 The certio-rari jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by Rrule 9.130.

(3) Original Jurisdiction.8 Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certio-rari, and habeas corpus2 and all writs necessary to the complete exercise of the courts’ jurisdiction.

!■ 9.140: Appeal Proceedings in Criminal Cases.

2- 9.110: Appeal Proceedings: Final Orders.

3- 9.110(i): Validation of Bonds.

4- 9.110: Appeal Proceedings: Final Orders; 9.100: Original Proceedings.

5- 9.120: Discretionary Review of District Court Decisions.

6- 9.125: Discretionary Review of Trial Court Orders and Judgments Certified by the District Court.

7- 9.150: Certified Questions from Federal Courts.

8- 9.100: Original Proceedings.

9- 9.130: Appeal Proceedings: Non-Final Orders.

l°- 9.160: Discretionary Review of County Court Decisions.

Committee Notes

1977 RevisionAmendment. This rule replaces former Rrules 2.1(a)(5) and 2.2(a)(4). It sets forth the jurisdiction of the Ssu-preme Ccourt, district courts of appeal, and that portion of the jurisdiction of the circuit courts to which these rules apply. It paraphrases Ssections 3(b), 4(b)¿ and, in relevant part, 5(b) of Aarticle V of the Florida Constitution. The items stating the certiorari jurisdiction of the Ssupreme Ccourt and district courts of appeal refer to the constitutional jurisdiction popularly known as the “constitutional certiorari” jurisdiction of the Ssupreme Ccourt and “common 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 areas of jurisdiction.

This rule does not set forth the basis for the issuance of advisory opinions by the Ssupreme Ccourt to the ©governor sineebe-cause the power to advise rests with the justices under Aarticle IV, Ssection 1(c), of the-Florida Constitution, and not the Ssu-preme Ccourt as a body. The procedure governing requests from the ©governor for advice are set forth in Rrule 9.500.

The Aadvisory ©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 histhat particular 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.

1980 Amendment. Seetionubdivision (a) of this rule has been extensively revised to reflect the constitutional modifications in the Ssupreme Ccourt’s jurisdiction as approved by the electorate on March 11, 1980. See Aarticle. V, Section^ 3(b), Florida. Constitution. (1980). The impetus for these modifications was a burgeoning caseload and the attendant need to make more efficient use of limited appellate resources. Consistent with this purpose, revised See-tionsubdivision (a) limits the Ssupreme Ccourt’s appellate, discretionary, and original jurisdiction to cases that substantially affect the law of the state. The district courts of appeal will constitute the courts of last resort for the vast majority of litigants under amended Aarticle V.

Subsactiondivision (a)(l)(A)(i) retains the mandatory appellate jurisdiction of the Ssu-preme Ccourt to review final orders of trial courts imposing death sentences.

Subsectiondivision (a)(l)(A)(ii) has been substantively changed in accordance with amended Aarticle V, Ssection 3(b)(1), Florida Constitution (1980), to eliminate the court’s mandatory appellate review of 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. Mandatory Ssupreme Ccourt review under this subsectiondivision is now limited to district court decisions “declaring invalid” a state statute or a provision of the state constitution. Jurisdiction to review final orders of trial courts in all instances enumerated in former subsectiondivision (a)(l)(A)(ii) now reposes in the appropriate district court of appeal.

Revised subseetioadivision (a)(1)(B) enumerates the tw©2 classes of cases that the Ssupreme Gcourt may review whenif provided by general law. See Aartiele. V, Section^ 3(b)(2), Florida. Constitution. (1980). Eliminated from the amended Aar-tiele V and rule is the legislative authority, never exercised, to require Ssupreme Gcourt review of trial court orders imposing sentences of life imprisonment.

Subseetioadivision (a)(l)(B)(i), pertaining to bond validation proceedings, replaces former subsoetioadivision (a)(l)(B)(ii). Its phraseology remains unchanged. Enabling legislation already exists for Ssupreme Gcourt review of bond validation proceedings. See Section^ 75.08, Florida. Statutes. (1979).

Subseetioadivision (a)(l)(B)(ii) is new. See Aartiele. V, Seetioajj 3(b)(2), Florida. Constitution. (1980). Under the earlier constitutional scheme, the Ssupreme Gcourt was vested with certiorari jurisdiction (which in practice was always exercised) to review orders of “commissions established by general law having statewide jurisdiction/’T including orders of the Florida Public Service Commission. See Aartiele. V, Section^ 3(b)(3), Florida. Constitution. (1968)¡ and Section^ 350.641, Florida. Statutes. (1979). This jurisdiction has been abolished. In its stead, amended Aartiele Y limits the Ssupreme Geourt’s review of Public Service Commission orders to those “relating to rates or services of utilities providing electric, gas, or telephone service.” Enabling legislation will be required to effectuate this jurisdiction. Review of Public Service Commission orders other than those relating to electric, gas, or utility cases now reposes in the appropriate district court of appeal. See Aartiele. V, Section^ 4(b)(2), Florida. Constitution. (1968); Florida. Rule. ©^Appellate. Procedure. 9.030(b)(1)(C); and Section^ 120.68(2), Florida. Statutes. (1979).

Subsectiondivision (a)(2) has been substantially revised in accordance with amended Aartiele V, Ssection 3(b)(3), Florida Constitution (1980^ to restrict the scope of review under the Ssupreme Gcourt’s discretionary jurisdiction. Under the earlier constitution, this jurisdiction was exercised by writ of certiorari. Constitutional certio-rari is abolished under amended Aartiele Y. Reflecting this change, revised subsection-division (a)(2) of this rule substitutes the phrase “discretionary jurisdiction” for “cer-tiorari jurisdiction” in the predecessor rule. This discretionary jurisdiction is restricted, moreover, to six6 designated categories of district court decisions, discussed below. Amended Aartiele V eliminates the Ssu-preme Gcourt’s discretionary power to review “any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the Supreme Court” as reflected in Subsectionsubdivision (a)(2)(B) of the predecessor rule. It also eliminates the Ssupreme Gcourt’s cer-tiorari review of “commissions established by general law having statewide jurisdiction” as reflected in Subsectionsubdivision (a)(2)(C) of the predecessor rule.

Seetioaubdivision (a)(2)(A) specifies the sis6 categories of district court decisions reviewable by the Ssupreme Gcourt under its discretionary jurisdiction.

Subsectiondivisions (a)(2)(A)(i) and (a)(2)(A)(ii) are new and pertain to matters formerly reviewable under the court’s mandatory appellate jurisdiction. Under former Rrule 9.030(a)(l)(A)(ii), the Ssupreme Geourt’s mandatory appellate jurisdiction could be invoked if a lower tribunal “inherently” declared a statute valid. See Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., Ill So._2d 439 (Fla._1959). The 1980 amendments to Aar-tiele V and this subseetioadivision require a district court to “expressly declare” a state* statute valid before the Ssupreme Gcourt’s discretionary jurisdiction may be invoked.

Subseetioadivision (a)(2)(A)(iii), pertaining to Ssupreme Ccourt review of district court decisions affecting a class of constitutional or state officers, has been renumbered. It tracks the language of the predecessor constitution and rule, with the addition of the restrictive word “expressly” found in amended Aarticle V.

Subseetioadivision (a)(2)(A)(iv) represents the most radical change in the Ssupreme Ccourt’s discretionary jurisdiction. The predecessor Aarticle V vested the Ssu-preme Ccourt with power to review district court decisions “in direct conflict with a decision of any district court of appeal or of the Supreme Court on the same point of law.” These cases comprised the overwhelming bulk of the court’s caseload and gave rise to an intricate body of case law interpreting the requirements for discretionary conflict review. With the enunciation of the “record proper rule” in Foley v. Weaver Drugs, Inc., 177 So._2d 221 (Fla._1965), the Ssupreme Ccourt extended its discretionary review in instances of discernible conflict to district court decisions affirming without opinion the orders of trial courts. Amended Aarticle V abolishes the Foley doctrine by requiring an “express” as well as a “direct” conflict of district court decisions as a prerequisite to Ssupreme Ccourt review. The new Aarti-cle also terminates Ssupreme Ccourt jurisdiction over purely intradistrict conflicts, the resolution of which is addressed in Rrule 9.331.

(a)(2)(A)(v) substitutes the phrase “great public importance” for “great public interest” in the predecessor constitution and rule. The change was to recognize the fact that some legal issues may have “great public importance,” but may not be sufficiently known by the public to have “great public interest.”

Subseetioadivision (a)(2)(A)(vi) is new and ■tracks the language of Aarticle V, Ssection 3(b)(4), Florida Constitution (1980).

Subsectiondivisions (a)(2)(B) and (a)(2)(C) are new. See Aarticle. V, See-tionsgfj 3(b)(5), (3)(b)(6), Florida. Constitution. (1980). Certification procedures under these subsectiondivisions are addressed in Rrule 9.125 and Rrule 9.150, respectively. "

Subsectiondivision (a)(3) is identical to the predecessor Aarticle V and rule, except it limits the issuance of writs of prohibition to “courts” rather than “courts and commissions” and limits the issuance of writs of mandamus and quo warranto to “state agencies” rather than “agencies.”*

1984 Amendment. Subsectiondivision (b)(4) was added in order to implement legislation authorizing district courts of appeal discretion to review by appeal orders and judgments of county courts certified to be of great public importance.

1992 Amendment. Subdivision (c)(1)(B) was amended to reflect correctly that the appellate jurisdiction of circuit courts extended to all non-final orders of lower tribunals as prescribed by rule 9.130, and not only those defined in subdivision (a)(3) of that rule.

Subdivision (c)(1)(C) was amended to reflect the jurisdiction conferred on circuit courts by article V, section 5, Florida Constitution, which provides that ‘Ttjhey shall have the power of direct review of administrative action prescribed by general law.”

RULE 9.040. GENERAL PROVISIONS

(a) Complete Determination. In all proceedings a court shall have such 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 defect 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. UpeOn 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. Whenif jurisdiction has been invoked pursuant founder Rrule 9.030(a)(2)(A)(v)¿ or_(a)(2)(A)(vi)ji or whenif a certificate has been issued by a district court pursuant-founder Rrule 9.030(a)(2)(B)1 the clerk of the district court of appeal shall transmit copies of the certificate and decision or order and any suggestion, replies^, or appendices 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-Jurisdictional Matters. Failure of a clerk or a party timely to file fees or additional copies of notices or petitions or the conformed copy of the order or orders designated in the notice of appeal shall not be jurisdictional; provided that such failure may be the subject of appropriate sanction.

Committee Notes

1977 RevisionAmendment. This rule sets forth several miscellaneous matters of general applicability.

Seetionubdivision (a) is derived from the last sentence of former Rrule 2.1(a)(5)(a), which concerned direct appeals to the Ssu-preme Ucourt. 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.

Soetionubdivisions (b) and (c) implement Aarticle V, Ssection 2(a)¿ of the-Florida Constitution. Former Rrule 2.1(a)(5)(d) authorized transfer whenif an improper forum was chosen, but the former rules did not address the problem of improper remedies being sought. The Aadvisory Ccom-mittee 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 will not be dismissed automatically because faea party 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 casé 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), wherein which 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), wherein which 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.

Seetionubdivision (d) is the appellate procedure counterpart of the harmless error statute, Ssection 59.041, Florida Statutes (1975). It incorporates the concept contained in former Rrule 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, whereif it would not result in irremediable prejudice.

Seetionubdivision (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. Wherelf less than the entire record as defined in Rrule 9.200(a)(1) is to be filed, Rrule 9.200(a)(2) requires service of a statement of the judicial acts for which review is sought. This requirement also applies under Rrule 9.140(d). As explained in the Ccommentary accompanying those provisions, such a statement does not have the same legal effect as an assignment of error under the former rules.

Seetionubdivision (f) permits payment of filing fees by check or money order and carries forward the substance of former Rrule 3.2(a), which allowed payments in cash.

Sectionubdivision (g) is derived from former Rrules 3.2(a) and 3.2(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 £ive5 days. The Aadvisory Ccommittee 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 whereif review of a final trial court order in a civil case is sought. When Ssupreme Ccourt 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 Ccourt along with the notice and fees.

Sectionubdivision (h) is intended to implement the decision in Williams v. State, 324 So._2d 74 (Fla._1975), wherein which it was held that only the timely filing of the notice of appeal is jurisdictional. The proviso permits the court to impose sanctions whereif there is a failure to timely file fees or copies of the notice or petition.

The Aadvisory Ccommittee considered and rejected as too difficult to implement a proposal of the Bbar Ccommittee 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 Aadvisory Ccommittee have been eliminated as irrelevant to appellate procedure. At its conference of June 27, however, the Ccourt 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 Aadvisory Ccommittee has recommended that its existence be continued by the Ssupreme Ccourt.

1980 Amendment. Sectionubdivision (g) was amended to direct the clerk of the district court to transmit copies of the district court decision, the certificate, the order of the trial court, and the suggestion, replies, and appendices in all cases certified to the Ssupreme Ccourt pursuant founder Rrule 9.030(a)(2)(B) or otherwise certified pursuant founder Rrule 9.030(a)(2)(A)(v) or (a)(2)(A)(vi).

1992 Amendment. Subdivision (h) was amended to provide that the failure to attach conformed copies of the order or orders designated in a notice of appeal as is now required by rules 9.110(d), 9.130(c), and 9.160(c) would not be a jurisdictional defect, but could be the basis of appropriate sanction by the court if the conformed copies were not included with the notice of appeal.

RULE 9.100. ORIGINAL PROCEEDINGS

(a) Applicability. This rule applies to those proceedings whichthat invoke the jurisdiction of the courts described in Rrules 9.030-(⅞)(3)⅛ (b)(2);, (b)(3);, (c)(2), and (c)(3) for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction; and for review of non-final administrative action.

(b) Commencement; Parties. 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. If the original jurisdiction of the court is invoked to enforce a private right, the proceeding shall not be brought on the relation of the state. If the petition seeks review of an order entered by a lower tribunal, all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents.

(c) Exceptions; Petitions for Common Law-Certiorari; and-Review of Non-fFi-nal Administrative Action. A petition-for common law certiorari or for-review of-aon-final administrative- action shall be filed within 30- days of-rendition of the order to be reviewed.The following shall be filed within 30 days of rendition of the order to be reviewed:

(1) A petition for common law certiorari.

(2) A petition for review of final quasi-judicial action of agencies, boards, and commissions of local government, which action is not directly appealable under any other provision of general law but may be subject to review by certiorari.

(3) A petition for review of non-final administrative action under the Florida Administrative Procedure Act.

Lower court judges shall not be named as respondents to petitions for common law certiorari; individual members of the agencies, boards, and commissions of local government shall not be named as respondents to petitions for review of final quasi-judicial action; and hearing officers shall not be named as respondents to petitions for review of non-final agency action. A copy of the petition 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 court 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 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 par-tyall parties 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 thereofof the petition and appropriate citations of authority-

Whenlf the petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by Rrule 9.22(k, and the petition shall contain references to the appropriate pages of the supporting appendix.

(f) Order to Show Cause. If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, 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-andof the response, appropriate citations of authority, and may-serve a supplemental appendix-references to the appropriate pages of the supporting appendices.

(i) Reply. Within 20 days thereafter or such other time set by the court, the petitioner may serve a reply and supplemental appendix.

Committee Notes

1977 RevisionAmendment. This rule replaces former Rrule 4.5, except that the procedures applicable to Ssupreme Ccourt review of decisions of the district courts of appeal on writs of constitutional certiorari are set forth in Rrule 9.120; and Ssupreme Ccourt direct review of administrative action on writs of certiorari is governed by Rrule 9.100. This rule governs proceedings invoking the Ssupreme Ccourt’s jurisdiction to review an interlocutory order passing upon a matter where_, on final judgment a direct appeal would lie in the Ssu-preme Ccourt. The procedures set forth in this rule implement the Ssupreme Ccourt’s decision in Burnsed v. Seaboard Coastline R.R. — C©t, 290 So._2d 13 (Fla._1974), that such interlocutory review rests solely within its discretionary certiorari jurisdiction under Aarticle V, Ssection 3(b)(3)2 of the-Florida Constitution, and that its jurisdiction would be exercised only where-when, on the peculiar circumstances of a particular case2 the public interest required it. This rule abolishes the wasteful current practice in such cases of following the procedures governing appeals, with the Ssu-preme Ccourt 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, Ssection 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 Aadvisory Ccom-mittee that such a right of review is guaranteed by the statute and is not dependent on a court rule, sineebecause Aarticle V, Ssection 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 Aadvisory Ccommittee 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.

Sectionubdivisions (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. Wherelf common law certiora-ri is sought to review an order issued by a lower tribunal consisting of more than ©sel person, a copy of the petition should be furnished to the chairperson of that tribunal.

Seetiosubdivision (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 whichthat, 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 ©sel 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 Heraldr Publishing Co. v. McIntosh, 340 So._2d 904, 911 (Fla._1977).

This new provision implements the "strict procedural safeguards” requirement laid down by the