Florida Bar Journal

A Practical Guide to the Amendments to the Florida Appellate Rules of Procedure

As we continue to navigate the uncharted waters prompted by the coronavirus pandemic, it is clear that the December 2020 amendments to Florida’s Rules of Appellate Procedure are here to stay as we continue to work remotely and attend virtual hearings. While there were many changes to Florida’s appellate rules, this article addresses some of the most notable amendments, and what specifically these changes mean for appellate practitioners. Think of it as a cheat sheet for your next appeal.

For starters, the appellate rules underwent changes that introduced new technical requirements for appellate drafting and filing. These changes are a direct result of the Florida Supreme Court’s efforts to resolve issues stemming from procedural rules lagging behind technological advancement, as lawyers move further away from handwritten and typewritten work product to computer-generated appellate briefs. This article discusses how changes to the font styles of filings, and the transition from page limits to word limits, should improve the readability and accessibility of electronically generated appellate documents.

This article also delves into appellate rule changes and legislative amendments that have resulted in the transfer of appellate jurisdiction from the circuit courts to the district courts of appeal, and the corresponding implications to appellate practice. Finally, this article discusses the notable changes to filing deadlines, along with specific rule additions by the Florida Supreme Court that broaden the scope of appealable matters by right from nonfinal orders.

Considerations for Drafting Appellate Petitions, Briefs, and Responses

The most notable change to the technical requirements for drafting and filing appellate documents was the Florida Supreme Court’s addition of Rule 9.045. The Supreme Court moved the technical requirements previously enumerated under Rules 9.100, 9.120, and 9.210 to the newly created Rule 9.045.^[1] Among other things, Rule 9.045 sets forth new requirements for drafting electronic appellate documents that include acceptable font types, word limits for certain appellate documents, and a certificate of compliance that specifies the newly required font type and word count for appellate documents.^[2] Rules 9.100 (l) and 9.210 (a)(1)-(3) were deleted by the Supreme Court as being duplicative of the newly added Rule 9.045.^[3] In light of these changes, here are some general guidelines to follow along with some background of the applicable rule changes for context.

• When Drafting Appellate Petitions, Briefs, and Responses, Use Either 14-point Bookman Old Style or 14-point Arial Font — Say goodbye to Times New Roman and welcome to your new friends, Bookman Old Style and Arial. This is a shift for appellate practitioners as Rule 9.045 requires that electronic appellate court filings conform with the new font types of either 14-point-size Bookman Old Style or Arial.^[4]

This shift toward a different font type for filing electronic appellate documents will hopefully resolve the enduring “battle of the fonts” that began when the legal profession transitioned from handwritten and typewritten briefs to computer-generated documents.^[5] Since the Supreme Court began mandating e-filing of documents, electronically generated documents have become the norm, but this has compounded appellate drafting and filing problems.^[6] The battle of the fonts can be characterized as the Supreme Court’s ongoing challenge to keep the appellate rules on pace with typography advancements that have ushered in a rapid proliferation of different fonts.^[7] The emergence of so many different font types allowed some filers to cram a large number of words into their appellate briefs by relying on different font types and smaller font sizes.^[8] While this strategy allowed some to circumvent the page-limit requirement under the appellate rules, it also created significant issues with readability.

After surveying judges, lawyers, and other members of the legal profession, The Florida Bar Rules Committee found that many complained of the lack of “white space” in appellate briefs.^[9] While one can debate the aesthetics, the committee ultimately determined that Bookman Old Style and Arial were the preferred fonts for readability instead of the previously allowed font types of 14-point Times New Roman and 12-point Courier under Rule 9.100 (l).^[10]

From the standpoint of advancing public policy considerations, appellate court documents are a matter of public record that should be easily accessible.^[11] In addressing the prior amendments to the font type to Times New Roman 14-point and Courier New 12-point, the Florida Supreme Court noted its policy to lower financial and physical barriers to public record inspection.^[12] A key consideration is that, unlike written documents, electronic documents that are displayed on the internet will not be displayed properly if they are set in fonts that are unusual.^[13]

• Keep It Brief: The New Word Limit — Although the 14-point Bookman Old Style and Arial font types will likely improve the readability of electronic court filings, these font types take up more space than the Times New Roman and Courier font types.^[14] To rectify this, the Florida Supreme Court replaced the page limit requirements with word limits for computer-generated documents. The page limits for handwritten and typewritten documents were left unchanged.^[15]

This rule change is commensurate with the word limits required under the Federal Rules of Appellate Procedure.^[16] The new word limits are intended to address the issue concerning lawyers circumventing the page limit requirement through electronic type setting. By introducing the word-limit requirement, the new rule should effectively keep appellate briefs “brief.”^[17] For quick reference, Figure 1 shows the new word limit for each appellate document.^[18]

• All Briefs Must Certify Compliance with the Font and Word Count Requirements — Computer-generated documents subject to the word count limit continue to require the appellate attorney to include a certificate of compliance certifying that the appellate document conforms with the font and word count requirements under the appellate rules.^[19] As a final practical consideration, appellate practitioners should be cognizant of these rule changes to ensure compliance. Previous holdings confirm that repeated and intentional noncompliance with the technical font and spacing requirements may warrant the imposition of attorneys’ fees and could result in other disciplinary measures.^[20] The following list highlights the requirements appellate practitioners must follow in order to properly conform with the certificate of compliance requirements when filing computer-generated documents:

1) The certificate of compliance shall be contained in a document immediately following the certificate of service;

2) The word count shall exclude words in a caption, cover page, table of contents, table of citations, certificate of compliance, certificate of service, or signature block;

3) The word count shall include all other words, including words used in headings, footnotes, and quotations; and

4) The person preparing the certificate may rely on the word count of the word-processing system used to prepare the documents.^[21]

Considerations for Filing Appeals in Light of Recent Appellate Rule Changes and Statutory Enactments/Repeals

• Florida Circuit Courts Have Been Divested of Jurisdiction Over County Court Appeals — The Florida Legislature enacted its first significant change to appellate jurisdiction in 40 years by amending F.S. §26.012 (2020), which sets out the jurisdiction of circuit courts and repeals F.S. §924.08 (2020), which gives the circuit courts jurisdiction over appeals of judgments in misdemeanor cases.^[22] In effect, these statutory changes divest circuit courts’ jurisdiction over appeals from county court orders and judgments for both criminal and civil matters. Effective since January 1, 2021, final county court appeals are now required to be filed in their respective district court of appeal.^[23]

The following amendments to the Florida Rules of Appellate Procedure were in response to the legislature’s transfer of much of the circuit courts’ appellate jurisdiction to the district courts of appeal. Rule 9.030(b) specifies the jurisdiction of the district courts of appeal and was amended in the following ways: Rule 9.030(b)(1)(A) was amended to remove superfluous language; Rule 9.030(b)(4)(A) replaced “under these rules” with “by general law” to clarify that the appellate jurisdiction of the circuit courts is derived from general law under Fla. Const. art. V, §5, which provides that “[t]hey shall have the power of direct review of administrative action prescribed by general law.”^[24]

Notwithstanding these changes, circuit courts continue to have appellate jurisdiction under statutes that were not amended. For instance, pursuant to F.S. §§26.012(1) and 162.11, circuit courts continue to have appellate jurisdiction from final administrative orders rendered by local code enforcement boards. The circuit courts additionally retained appellate jurisdiction over certain decisions entered in noncriminal infraction cases.^[25]

This reform to circuit court appellate jurisdiction originated from the conclusions of the “Judicial Management Council’s Workgroup on Appellate Review of County Court Decisions.”^[26] It was of particular importance for the Judicial Management Council to assess the circuit courts’ appellate capacity given the disparities in the ways county courts appeals were managed.^[27] For instance, the Judicial Management Council concluded that 24 counties consistently used three-judge panels to hear county court appeals, while 31 counties did not use three panel judges, and in 11 counties, some appeals were heard by a single judge while some were heard by a three judge panel.^[28] Finally, the Judicial Management Council concluded that only nine circuit courts published all or some of the appellate decisions on their respective circuit court website.^[29]

This jurisdictional transition marks a significant, yet favorable, departure as the appellate resources available to circuit courts were limited. The transfer of much of the circuit courts’ appellate jurisdiction to the district courts of appeal is anticipated to promote consistency and timeliness of appellate decisions.^[30] With this being said, this jurisdictional transition has fast tracked a large volume of cases to the district courts that raises questions that are of relevant interest to appellate lawyers. Specifically, there are concerns about potential delays in resolution of cases at the district court level, and whether motions and oral argument are going to be less frequently granted as part of a judicial effort to ramp up resolution of cases that are currently pending appeal.^[31]

• Rule Expansion to Appealable Non-Final Orders — The Florida Supreme Court added Rule 9.130(a)(3)(C)(viii), which allows appeals of nonfinal orders that deny a motion asserting entitlement to absolute or qualified immunity in civil rights claims under federal law, immunity pursuant to F.S. §768.28(9), and sovereign immunity.^[32] In general, the Supreme Court now allows government agencies to appeal nonfinal orders rendered by a trial court that have denied motions that assert entitlement to absolute immunity, qualified immunity, or sovereign immunity regardless whether the trial court’s denial is based on factual or legal grounds.^[33]

The addition of this subdivision, in pertinent part, removed the requirement that orders “determine that, as a matter of law, a party is not entitled” to the immunity asserted.^[34] As a result of this change, any order denying entitlement to the aforementioned immunities is immediately appealable as a matter of right.^[35] This rule change marks a departure from the Supreme Court’s prior holding that affirmed the state’s rules did not allow appellate courts to reconsider nonfinal orders denying immunity under F.S. §768.38(9).^[36]

It Is All in the Timing: Changes to Rule 9.120

The Florida Supreme Court amended Rule 9.120(e), discretionary proceedings to review decisions from the district courts of appeal.^[37] Rule 9.120(e), concerning accepting or postponing decisions on jurisdiction, was amended to shorten the period of time for transmission of the record from 60 to 25 days.^[38] In addition, Rule 9.120(g) was amended to extend the period of time for service of the initial brief from 20 days to 35 days after the court accepts or postpones a decision on jurisdiction.^[39]

Rule 9.110 (d) was amended to require notices of appeal to indicate whether a motion for rehearing or other tolling motion is still pending in the lower tribunal. The 2014 amendments to the rule addressed the scenario where an appeal had been filed and the rehearing is pending. This amendment resulted in the appeal being held in abeyance until the rehearing was resolved. Rule 9.100(d) now requires the attorney to give the appellate court notice within 10 days after the tolling motion is resolved or withdrawn.^[40]

Rules 9.320(a)(4) and (d), pertaining to Florida Supreme Court review, were amended to require requests for oral argument in the Supreme Court to be made by the due date of the jurisdictional brief. The exception to this rule is when jurisdiction is based on a certified question, in this context, the request for oral argument is due five days after the filing of the notice to invoke discretionary review. Furthermore, the rule now requires a description of why oral argument is necessary to enhance the court’s review, and the opposing party has five days to serve a response.^[41]

Other Changes

In keeping with the philosophy of promoting the right of the general population to inspect matters that are of public record, please see the Florida Supreme Court’s newly created Rule 9.040 (j). This rule effectively requires every appellate court or circuit court sitting in an appellate capacity to publish its opinions in searchable PDF format on the court website, unless the opinions are deemed confidential under Florida Rule of Judicial Administration 2.420.^[42] Finally, Rule 9.120(f) was amended to require parties to include a statement of the issues section in their jurisdictional brief to the Supreme Court if they intend to raise issues independent of those triggering jurisdiction.^[43]

Conclusion

In sum, the Florida Supreme Court has made changes to Florida’s appellate rules to respond to ongoing technological advancements and changes in the scope of appellate jurisdiction for the courts at every level. These changes touch upon multiple rules and will affect both where and when appeals are filed, as well as how briefs are submitted in support of those appeals. The aim of this article was to provide lawyers with a practical guide to some of the more important amendments and to further address how these changes are likely to impact appellate practice. Appellate practitioners, as well as the occasional appellate attorney, should be mindful of these changes as they continue to practice before the circuit courts, the district courts of appeal, and the Florida Supreme Court.

This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.