Elimination of Florida Terms of Court and its Effect on Appellate Mandates
A “term of court” generally can be defined as a fixed period of time prescribed by law for the administration of judicial duties within which the business of the term should be transacted.1 Put simply, a term of court signifies a time period between two specific dates on the court’s calendar.
But this definition was not always so narrow in Florida. The phrase “terms of court,” as it is used today, appears to have transcended its original meaning and purpose over the years. Our legislature has recognized some of the problems with applying this antiquated notion to our modern courts, and has enacted legislation aimed at its removal.
In 1868, the Florida Constitution divided the state into seven judicial circuits and assigned one judge to each circuit.2 Each of the seven circuits encompassed multiple counties within the state.3 The judge assigned to a particular circuit was required to reside within that circuit.4 Every year, each of the seven judges was required to hold two annual “terms of his court in each county within his circuit.”5 Unexcused absence of a circuit judge on the first day of the term resulted in a $100 deduction from his salary and required him to explain his reasons for nonattendance in writing.6 The circuit judges literally “rode the circuit,” passing from county to county in order to conduct court affairs.7 In a time when travel was difficult and communications were slow, these “terms of court” were created to ensure that the circuit judges completed these journeys to each county on a regular basis.8
Similar to the requirements of the circuit courts, the Florida Supreme Court was required under the state constitution to hold three terms annually, commencing on the second Tuesday of October, January, and April.9 A Supreme Court justice — which was a part-time job in the early days of our state — required time for travel to Tallahassee to attend these terms.10
In 1957, at the same time Florida’s intermediary appellate courts were created, the Florida Legislature established our current terms of court for the Supreme Court and newly founded district courts of appeal.11 Presently, the Florida Supreme Court’s terms commence annually on January 1 and July 1, respectively, unless these days fall on a Sunday or legal holiday, in which case the term commences on the first subsequent non-Sunday or nonlegal holiday.12 Similarly, the district courts’ terms commence on the second Tuesday in January and July.13
The Purpose and Effect of Present Day Terms of Court
Today, “terms of court” are largely considered to be “archaic”14 and “anachronistic.”15 Travel and communication have improved drastically; many courts sit perpetually throughout the year rather than just twice a year, and the purpose of the original terms — to ensure that each judge travel to each circuit — is no longer a great concern. Yet present day terms of court are still important in two arguable respects: 1) to designate terms of local grand juries; and 2) to limit withdrawal of an appellate mandate.16 This article is limited to a discussion of the latter aspect, i.e., terms of court and their effect on the recall of appellate mandates.
The beginning of each term of court constitutes the deadline of the preceding term, and represents the time when all court mandates17 issued during the preceding term are declared final.18 Principles of common law dictate that a court has the authority to modify or vacate a mandate during the term of court in which that mandate is rendered.19 Florida continues to adhere to these same principles, and appellate courts today have the authority to recall or modify mandates, so long as they do so within the term during which the mandates were issued.20
One problem with this system is that a reviewing court may have more than 180 days to recall a mandate in some instances, and only one day to recall a mandate in others. For example, if a district court of appeal were to issue a mandate on the Wednesday immediately succeeding the second Tuesday in January of a particular year, it would have until the second Tuesday in July of that year (approximately six months later) to decide whether to revoke the mandate before a final decree is issued. In this situation, the mandating panel would also have the advantage of being able to assess new cases, future mandates, changes in the law, or other pertinent matters coming into existence over the next six months, and consider such developments before deciding to withdraw a mandate. Yet a district court of appeal that issues a mandate in early July before the second Tuesday of the month, has, at best, less than two weeks, and at worst, less than 24 hours before that mandate is finalized and irrevocable.
In recognition of some of the issues highlighted above, on April 17 Governor Rick Scott signed into law a bill,21 taking effect January 1, which eliminates numerous sections referencing statutory “terms of court,” and adds §43.43, which states: “Terms of courts.—The Supreme Court may establish terms of court for the Supreme Court, the district courts of appeal, and the circuit courts; may authorize district courts of appeal and circuit courts to establish their own terms of court; or may dispense with terms of court.”
In effect, §44.43 takes the power to dictate the terms of court from the legislature and bestows it upon the judiciary.
The new law also adds §43.44, which reads:
An appellate court may, as the circumstances and justice of the case may require, reconsider, revise, reform, or modify its own opinions and orders for the purpose of making the same accord with law and justice. Accordingly, an appellate court may recall its own mandate for the purpose of allowing it to exercise such jurisdiction and power in a proper case. A mandate may not be recalled more than 120 days after it has been issued.
Section 43.44 appears to have been enacted as a substantive law — rather than as a procedural law — which provides the right to finality of an opinion.22 The bill as a whole eliminates statutory “terms of court” applicable to the circuit and appellate courts, and appears to sever mandate recall deadlines from terms of court entirely.
This change by the legislature can have positive results on Florida’s appellate system. In particular, the new law could effectively solve the problem of inconsistent appellate review times when considering the recall of a mandate. For example, should the Supreme Court issue a rule to this effect, or should it choose to dispense with the terms of court entirely, an appellate court could theoretically have 120 days to recall a mandate after its issuance regardless of what date that mandate was issued. Thus, rather than potentially having 24 hours to correct a defective mandate, a court would have a third of a year, in virtually all instances, to reconsider that mandate before it is deemed final.
Perhaps a reasonable choice for the Supreme Court would be to accept the legislature’s invitation to dispense with terms of court entirely, and allow §43.44’s 120-day rule to govern all final mandate deadlines. “Terms of court,” an outmoded phrase that no longer appears to serve its original function, may be better suited in the annals of history than in our current court rules.
1 See People v. Wilson, 190 N.E. 270, 273 (Ill. 1934).
2 See Fla. Const. art. VI, §7 (1868); Fla. Const. art. XVI, §3 (1868).
3 See Fla. Const. art. XVI, §3 (1868).
4 See Fla. Const. art. VI, §7 (1868).
6 See Laws of Fla. Ch. 252 (1849).
7 See Fla. H.R. Comm. on Judiciary, Subcomm. on Civil Justice, HB 7017 (2013) Staff Analysis 1, 2 (Mar. 7, 2013) (on file with comm.) [hereinafter Staff Analysis], available at http://www.flsenate.gov/Session/Bill/2013/7017/Analyses/MJMNP0G8RQfblPIOIKfs6pxY=PL=2I=|14/Public/Bills/7000-7099/7017/Analysis/h7017a.JDC.PDF.
8 See id. This staff analysis disclaims being a reflection of the intent or official position of the bill sponsor or House of Representatives. Florida courts recognize that “[a]lthough not determinative of legislative intent, staff analyses are one touchstone of the collective legislative will.” Sun Bank/South Fla., N.A. v. Baker, 632 So. 2d 669, 671 (Fla. 4th DCA 1994).
9 See Fla. Const. art. VI, §4 (1868).
10 See Staff Analysis at 2.
11 See Laws of Fla. Ch. 57-274, §1 at 543; Laws of Fla. Ch. 57-248, §1 at 476-77.
12 See Fla. Stat. §25.051 (2012).
13 See Fla. Stat. §35.10 (2012). Unlike the directive placed upon the Supreme Court under §25.051, the district courts of appeal have the authority to “adjourn [such terms] from time to time as may be deemed necessary for the dispatch of business.” See Fla. Stat. §35.10. In addition to the two mandatory terms, the district courts also have the authority to hold “special terms” of court as deemed necessary for public interest. See Fla. Stat. §35.11 (2012).
14 See Staff Analysis at 2.
15 See Pinecrest Lakes Inc. v. Shidel, 802 So. 2d 486, 487 n.2 (Fla. 4th DCA 2001) (criticizing the concept of “terms of court” as a relic of a time past).
16 See Staff Analysis at 2.
17 A mandate is an appellate court document directing the lower court to act based on the appellate court’s decision in the case. See Staff Analysis at 2.
18 See note 20.
19 See Bronson v. Schulten, 104 U.S. 410, 415 (1881); Lovett v. State, 11 So. 176, 392 (Fla. 1882), overruled in part by Chapman v. St. Stephens Protestant Episcopal Church, 138 So. 630 (Fla. 1932).
20 See State Farm Mut. Auto. Ins. Co. v. Judges of the Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980 (Fla. 1981); Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005), disapproved of on other grounds by Garzon v. State, 980 So. 2d 1038 (Fla. 2008); State v. In Interest of D.I., 477 So. 2d 71 (Fla. 4th DCA 1985).
21 H. B. 7017, 23rd Leg., 1st Reg. Sess. (Fla. 2013).
22 R ules of practice and procedure are strictly within the province of the Florida Supreme Court, but the legislature is entrusted with the task of enacting substantive law. See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995); Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So. 2d 1020, 1021 (Fla. 4th DCA 1981). For a more in-depth discussion on the classification of statutes as either substantive or procedural, see Massey v. David, 979 So. 2d 931 (Fla. 2008).
Scott S. Amitrano is a staff attorney for Judge Chris W. Altenbernd in Florida’s Second District Court of Appeal in Tampa. He received his J.D. from Rutgers School of Law-Camden in 2011, and is licensed to practice law in Florida, New Jersey, and Washington, D.C.
This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus , chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.