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Appellate Standards of Review

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Since 2000, when Florida Rule of Appellate Procedure 9.210(5)(b) was amended, all briefs filed in Florida appellate courts must include explicit reference to the standard of review applicable to each issue raised in the appeal. And, while the rule is directed to appellate courts, practitioners at the trial level would be wise to couch their arguments, and their presentation of evidence, around the standards that guide trial judges in their decisions and, at the same time, establish records for use in the appellate courts.

There are three main standards of appellate review that practitioners will confront: de novo, abuse of discretion, and competent substantial evidence. (There are, of course, others — such as the clear and convincing evidence and manifest weight of the evidence standards1 — but they are less common and more case-specific).

These three main standards can conceptually be broken down to decisions of law and decisions of fact. Thus, when the appellate court is asked to interpret a statute or contract, for example, and there are no factual resolutions that must be made, the reviewing court is essentially in the same position as was the trial court and the standard of review is de novo. On the other hand, where the matter is fact-specific — where it entails resolving conflicting facts or determining the factual sufficiency in a case — the appellate court will often defer to the trial court for such determinations and the standard of review is whether the record contains competent substantial evidence to support the order under review. Finally, when the challenged action is one that is ordinarily left to trial court discretion — such as the admission of evidence or the administration of trial — the standard is whether the lower tribunal abused that discretion.

De novo review, or “free review,”2 means that “although the trial court is presumed to be correct, the appellate court is free to decide the legal issue differently without paying deference to the trial court’s review of the law.”3 In these purely legal matters, the appellate court stands on the same footing as the trial court. Examples of decisions of pure law in which the appellate court applies the de novo standard include reviewing orders dismissing a complaint,4 entering summary judgment, directed verdict or judgment of acquittal,5 interpreting a statute or contract,6 suppressing evidence (legal matters only)7 and determining whether a criminal sentence exceeds the statutory maximum.8 While evidentiary rulings are most often reviewed under the abuse of discretion standard, there are some rulings that may be reviewed under the de novo standard; for example, whether evidence falls within the statutory definition of hearsay9 or, in the case of novel scientific evidence, whether a particular scientific principle or testing procedure is generally accepted by the relevant scientific community.10 Each of these rulings can be reviewed as a pure matter of law; they do not rest upon the determination of factual aspects of the case.

In contrast, where the rulings are fact-specific, appellate courts are more prone to defer to trial courts to make such decisions. This is so because trial courts are in a better position to assess the characteristics of testimony or other evidence they admit.11 This is the case, e.g. , when assessing witness credibility or assigning weight to the evidence.12 This is also the case when the appellate court looks to the evidentiary basis behind a jury verdict and nonjury findings.13

Other examples of the use of the competent substantial evidence standard include determining a party’s earning capacity in a child support case14 and factual findings in rulings on a motion to suppress.15

Finally, a great many decisions made in the administration of trial proceedings are left to the trial court’s discretion and appellate courts will not disturb them absent an abuse of discretion. Examples of discretionary court decisions include the granting of continuances,16 allowing jurors to ask witnesses questions,17 and limiting voir dire or opening and closing statements.18

Sometimes, orders on review involve mixed questions of law and fact which require the practitioner to parcel out the different aspects of the order and apply the standard of review appropriate to each. For example, when challenges are brought to the admissibility of novel scientific evidence, the appellate court will apply a two-part analysis to implement the Frye test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): 1) whether a particular scientific principle or testing procedure is generally accepted in the relevant scientific community (de novo standard); and 2) whether the testing conditions are substantially similar to commonly accepted testing conditions for that particular principle (abuse of discretion standard).19 Some statutory analyses involve both ultimate rulings of law (de novo standard) and factual findings (competent substantial evidence standard).20 And, in some sentencing decisions in criminal cases, courts have used several standards of review within the same issue.21

Whether we use former 11th Circuit Court of Appeals’ Chief Judge Godbold’s description of appellate standards (“[I]f you do not [couch arguments in accordance with the applicable standard of review], you may find you get up there on appeal and [the judge is] playing by basketball rules and you’re proceeding under football rules.”),22 or simply follow the requirements of Florida Rule of Appellate Procedure 9.210(b)(5), vigilant adherence to appellate standards of review is critical.

1 See generally Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956).

2 See Childress & Davis, 1 Federal Standards of Review §2.14, 276 (LEXIS Pub. 3d ed. 1999).

3 Padovano, Standards of Review in Criminal Cases 5 (unpublished manuscript of address to Florida Public Defender Association seminar (Feb. 17, 1999)).

4 See Fox v. Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175 (Fla. 5th D.C.A. 2001).

5 See Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla. 1989); Ritz v. Florida Patient’s Compensation Fund, 436 So. 2d 987 (Fla. 5th D.C.A. 1983); D.R. v. State, 734 So. 2d 455 (Fla. 1st D.C.A. 1999).

6 See Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20 (Fla. 2004); Burns v. Barfield, 732 So. 2d 1202 (Fla. 4th D.C.A. 1999).

7 See Conner v. State, 803 So. 2d 598 (Fla. 2001).

8 See Demps v. State, 761 So. 2d 302 (Fla. 2000).

9 See Burkey v. State, 922 So. 2d 1033 (Fla. 4th D.C.A. 2006).

10 See, e.g., General Motors Corp. v. Porritt, 891 So. 2d 1056 (Fla. 2d D.C.A. 2004).

11 See Zack v. State, 911 So. 2d 1190 (Fla. 2005).

12 See State of Florida Highway Patrol v. The Forfeiture of Twenty Nine Thousand Nine Hundred and Eighty ($29,980.00) in U.S. Currency, 802 So. 2d 1171 (Fla. 3d D.C.A. 2001) (nonjury); White v. State, 446 So. 2d 1031 (Fla. 1984) (jury).

13 See Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2005) (jury); North American Islamic Trust, Inc. v. Muslim Center of Miami, Inc., 771 So. 2d 1227 (Fla. 3d D.C.A. 2000) (nonjury).

14 See Jones v. Jones, 920 So. 2d 800 (Fla. 5th D.C.A. 2006).

15 See Caso v. State, 524 So. 2d 422 (Fla. 1988).

16 See Myers v. Siegel, 920 So. 2d 1241 (Fla. 5th D.C.A. 2006).

17 See Jimenez v. State, 928 So. 2d 508 (Fla. 3d D.C.A. 2006).

18 See King v. State, 790 So. 2d 1253 (Fla. 5th D.C.A. 2001) (voir dire); Stockton v. State, 544 So. 2d 1006 (Fla. 1989) (closing); Maleh v. Florida East Coast Properties, Inc., 491 So. 2d 290 (Fla. 3d D.C.A. 1986) (opening).

19 See General Motors Corp. v. Porritt, 891 So. 2d 1056 (Fla. 2d D.C.A. 2004).

20 See North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003).

21 See Blanco v. State, 706 So. 2d 7 (Fla. 1997) (mitigating circumstances in capital case).

22 Godbold, How to Communicate with Appellate Judges, Address to the Annual Convention of the International Society of Barristers, Marco Island, Florida, 18 Int’l Society of Barristers Q. 274 (1983).