Revisiting the Florida Supreme Court’s Conflict Jurisdiction to Review Per Curiam Affirmances Signaling Contrary Authority
This article has two modest aims pertaining to the Florida Supreme Court’s discretionary jurisdiction under Fla. Const. art. V, §3(b)(3) to review “any decision of a district court of appeal…that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.”1 First, it seeks to remind appellate practitioners that while the 1980 amendment to §3(b)(3), as interpreted by the Florida Supreme Court, has eliminated that court’s “conflict jurisdiction” to review nearly all per curiam affirmances (PCAs) and other district court decisions rendered without written opinion, there is one narrow yet long-standing exception that often goes overlooked. Specifically, the court has recognized on several occasions that it does in fact possess conflict jurisdiction under §3(b)(3) to review PCAs that signal authority contrary to the authority upon which the PCA relies. As its second aim, this article respectfully suggests that the Florida Supreme Court revisit this exception in a future case because it was adopted without critical analysis and without consideration of potentially strong counterarguments.
Background: The 1980 Amendment
Several Florida Supreme Court opinions and scholarly articles have recounted in detail the history of the 1980 amendment to §3(b)(3).2 Briefly summarized, when Fla. Const. art. V was amended in 1956, the district courts of appeal were created in order to absorb the rising caseload of the Florida Supreme Court, which up to that point was the state’s only appellate court. Interpreting that amendment shortly thereafter, the Florida Supreme Court emphasized that, under the 1956 Constitution, the district courts were intended to act not as intermediate appellate courts, but rather as courts of final review in most cases. The Florida Supreme Court was to act as a supervisory body and the court of last resort only in a limited number of cases presenting issues of statewide importance or requiring legal harmonization. Included in that latter category were cases in which there was a “direct conflict” among appellate decisions.
In the following years, however, the court began to examine the “record proper” underlying PCAs rendered without opinion in order to determine whether a “direct conflict” existed. The court squarely approved of this practice in Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 223-25 (Fla. 1965). Undermining the purpose of the 1956 Constitution, Foley and the record proper doctrine resulted in the continued expansion of the Florida Supreme Court’s jurisdiction and effectively transformed the district courts back into “way stations on the road to the Supreme Court,”3 not courts of final review.
In response to the Florida Supreme Court’s rising caseload, several members of the court — particularly Justice Arthur J. England, Jr.4 — successfully urged the legislature to propose a constitutional amendment limiting the court’s jurisdiction. Following months of debate among the legislature, the court, The Florida Bar, and other stakeholders, in 1980 the voters approved an amendment to Fla. Const. art. V, §3. One of the key revisions was the addition of the word “expressly” to §3(b)(3), such that the court would have conflict jurisdiction under that provision only when there was an “express” and “direct” conflict. The intent of this revision was to overrule Foley’s record proper doctrine and preclude the court from exercising conflict jurisdiction over PCAs rendered without written opinion.
Shortly thereafter, the Florida Supreme Court effectuated that purpose in Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Relying heavily on the history and language of the amendment, the court held that it lacked conflict jurisdiction under §3(b)(3) to review an unelaborated PCA, even if a conflict could be discerned from an accompanying concurring or dissenting opinion. Over the last 35 years, the court has extended Jenkins to various types of decisions rendered without written opinion, including: PCAs and orders supported only by citation;5 per curiam denials of relief, whether unelaborated6 or supported only by citation;7 and per curiam dismissals, whether unelaborated or supported only by citation.8 The court has also held that its extraordinary writ jurisdiction may not be used to circumvent Jenkins and its progeny,9 and even the court’s mandatory jurisdiction to review decisions declaring invalid a state statutory or constitutional provision does not allow for review of unelaborated per curiam decisions.10
Jurisdiction over PCAs Signaling Contrary Authority
While Jenkins and its progeny preclude §3(b)(3) conflict jurisdiction over virtually all PCAs, there are exceptions. The most well-known exceptionwas articulated in Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981), when the court permitted review of PCAs relying on a case that is either pending before, or has been reversed by, the Florida Supreme Court.11 However, there is another equally long-standing, yet often overlooked, exception in addition to Jollie.12 As mentioned at the outset, several Florida Supreme Court decisions support the proposition that it has conflict jurisdiction under §3(b)(3) to review a PCA that refers, via citation, to a district court (or, less likely, a Florida Supreme Court)13 decision that is contrary to the authority upon which PCA relies.
In State Farm Mutual Automobile Insurance Company v. Lawrence, 401 So. 2d 1326, 1327 (Fla. 1981), the court first exercised conflict jurisdiction over a citation PCA that also included a “contra” citation to a decision by another district court. The court did so without explanation and over the dissent of Justice Joseph A. Boyd, Jr. The court’s summary treatment is surprising considering how meticulous it was in the formative post-amendment years to thoroughly interpret §3(b)(3) and carefully circumscribe its conflict jurisdiction over PCAs.
Two years later, the court in Stevens v. Jefferson, 436 So. 2d 33, 34 (Fla. 1983), again over the dissent of Justice Boyd, exercised conflict jurisdiction under §3(b)(3) “because the per curiam affirmance by the district court indicated contrary authority.” In that case, the PCA included a “but see” citation to another district court opinion, and the district court “deem[ed]” that case “to be in conflict with [its] decision.”14 The Florida Supreme Court, however, offered no additional reasoning. Two years later, the court in Frederick v. State, 472 So. 2d 463, 464 (Fla. 1985), similarly exercised conflict jurisdiction under §3(b)(3) to review a PCA that included a “but see” citation, “with which this decision is in conflict.”15
A few years later, the court in Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988), had occasion to restate its prior precedents addressing §3(b)(3)’s conflict jurisdiction. In doing so, the court included the following footnote: “[T]here can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this court, or has been reversed on appeal or review, or receded from by this court, or unless the citation explicitly notes a contrary holding of another district court or of this court.”16 While the italicized proposition of this footnote was supported by the cases discussed above, the court instead cited Jollie, which supported only the nonitalicized proposition quoted. The court in Florida Star,thus, perpetuated the unexplained jurisdictional proposition adopted in Lawrence, Stevens, and Frederick. The court has since repeated Florida Star’s footnote, including the italicized language, again without critical analysis.17
Further solidifying the doctrinal entrenchment, the court in Young v. State, 641 So. 2d 401, 402, n.1 (Fla. 1994), relied on Stevens and exercised conflict jurisdiction under §3(b)(3) of a citation PCA that “noted conflict” with another district court decision. In its only attempt to explain jurisdiction over this type of PCA, the court included a brief footnote distinguishing Dodi, the case in which the court first extended Jenkins to traditional citation PCAs. In doing so, the court in Dodi “reject[ed] the assertion that we should reexamine a case cited in a per curiam decision to determine if the contents of that cited case now conflict with other appellate decisions.”18 No such examination was necessary in Young, however, because the PCA itself “indicated contrary authority.”19
Although the rationale supporting the cases above has never been formally articulated, it can be expressed as follows: When a PCA (A) finds dispositive another appellate decision (B), and that decision (B) conflicts with another appellate decision (C), then the PCA (A) also conflicts with that latter decision (C). In other words, if A is controlled by B, and B conflicts with C, then A also conflicts with C. Viewed this way, allowing jurisdiction over PCAs signaling contrary authority arguably complies with Dodi’s instruction to look to “the decision of the district court before us for review, not whether there is conflict in a prior written opinion which is now cited for authority.”20 This is so because the conflict is “express” and “direct,” in that it “appears within the four corners of the majority [PCA] decision.”21 And, as a practical matter, a PCA signaling contrary authority, unlike an unelaborated PCA or a traditional citation PCA, conspicuously and conveniently highlights the existence of a conflict on the face of the decision.22
The Counterarguments Against Jurisdiction
Despite the doctrinal strength and practical appeal of allowing conflict jurisdiction over PCAs signaling contrary authority, there are forceful counterarguments against it. These arguments are summarized below.
• The Purpose of the 1980 Amendment — As explained above, the purpose of adding the word “expressly” to §3(b)(3) in 1980 was to overrule the record proper doctrine, require a written opinion as a predicate for review, and thereby eliminate conflict jurisdiction over PCAs.23 exercising jurisdiction over PCAs, even those signaling contrary authority, it could be argued that the court is contravening the purpose of the amendment.
Moreover, the court in Jenkins,relying on the amendment’s purpose, emphasized that the word “express” meant to “represent in words” or “give expression to,” and “[t]he single word ‘affirmed’ comport[ed] with none of these definitions.”24 Justice Boyd, in his Stevens dissent, likewise argued that a PCA, even one signaling contrary authority, could not create an express and direct conflict with another decision because it was “not an opinion in the sense of a discussion, analysis, or statement of the principles of law applied in reaching the decision.”25 Nor did it “contain any statement of law capable of causing confusion or disharmony in the law of the state,”26 and, as the court had concluded months earlier, PCAs lack precedential value.27
On this view, it is the substantive basis for — not the mere existence of — the conflict that must be express. Further supporting that view, the court held in Ford v. Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981), that “[i]t is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an ‘express’ conflict under §3(b)(3),” so long as the “court’s opinion discusses…the basis” of its decision and “the legal principles which the court applied.” In that regard, it is curious that conflict jurisdiction exists to review PCAs containing a mere contrary citation signal, but not PCAs accompanied by a concurring or dissenting opinion fully detailing the basis of a conflict.
Furthermore, in arguing that conflict jurisdiction over PCAs signaling contrary authority ran afoul of the purpose of the 1980 amendment, Justice Boyd emphasized in his Lawrence dissent that it would effectively resurrect the record proper doctrine by “authoriz[ing] us to look beyond the published decision of a district court” and “sanction[ing] our examination of the cited cases to search for conflicting views.”28 While a contrary citation signal on the face of the PCA may enable the court to discern the existence of a conflict, it will not enable the court to determine the substantive basis or nature of that conflict. And the court may still need to examine the record and authorities cited in order to determine whether the conflict was significant enough to warrant review29 and, if so, whether the case presented a proper vehicle for resolving the conflict.
• Certified-Conflict Jurisdiction Under §3(b)(4) — In addition to “express and direct” conflict jurisdiction under §3(b)(3), the Florida Supreme Court also has discretionary conflict jurisdiction under §(3)(b)(4) to review “any decision of a district court of appeal…that is certified by it to be in direct conflict with a decision of another district court of appeal.”30 The 1980 amendment added this independent basis for conflict jurisdiction.31 Allowing conflict jurisdiction under §3(b)(3) over PCAs signaling — but not certifying — contrary authority is potentially incompatible with §3(b)(4)’s certified-conflict jurisdiction.
In order to explain why that may be so, two points about certified-conflict jurisdiction must be made. First, the district court must expressly “certify” a conflict in order to trigger jurisdiction under §3(b)(4). Justice Boyd recognized this magic-word requirement in his Stevens dissent,32 and the Florida Supreme Court has subsequently confirmed “that district court decisions that simply acknowledge, discuss, cite, suggest, or in any other way recognize conflict” are insufficient to support certified-conflict jurisdiction under §3(b)(4).33 Rather, “[t]o support such review, conflict must be ‘certified.’”34
Second, in Vetter v. State Farm Mutual Automobile Insurance Company, 439 So. 2d 1387 (Fla. 1983), the Florida Supreme Court, over yet another Justice Boyd dissent, recognized that district courts may certify conflict in the form of a PCA.35 While Justice Boyd reiterated that exercising jurisdiction over such a PCA conflicted with the purpose of the 1980 amendment,36 he failed to recognize that, unlike §3(b)(3), the word “expressly” is absent from §3(b)(4), which refers only to a “direct” conflict.37 Moreover, no actual conflict at all is required to confer jurisdiction under §3(b)(4), because the very act of certification alone “provides [the Court] with jurisdiction per se,”38 such that the court has “discretion to hear certified conflict cases even if it ultimately finds no conflict, something that cannot be done for express and direct conflict” under §3(b)(3).39
In light of the above authority, exercising conflict jurisdiction under §3(b)(3) over PCAs that signal, but do not “certify,” contrary authority arguably renders superfluous certified-conflict jurisdiction under §3(b)(4). Whenever a district court certifies conflict under §3(b)(4), even if in a PCA, that will (under the cases discussed above) also necessarily establish conflict jurisdiction under §3(b)(3). Thus, allowing conflict jurisdiction under §3(b)(3) over PCAs signaling, but not certifying, contrary authority may effectively eliminate §3(b)(4)’s “certification” requirement and obviate it as an independent basis for conflict jurisdiction. To be sure, a district court’s certification remains practically important, in that it increases the odds of the Florida Supreme Court accepting review,40 but that is a matter of the court’s discretion, not its jurisdictional authority.41 And while allowing conflict jurisdiction over PCAs only when there is a “certification,” but not an acknowledgment, of contrary authority may appear to elevate form over substance, that formalism is, under this view, required by the constitution and, therefore, should be respected.
In addition to potentially jeopardizing the structural design of the 1980 amendment, allowing jurisdiction over PCAs signaling but not certifying contrary authority may also be inconsistent with §3(b)(4)’s purpose, which was to “add to the district court’s arsenal the authority to certify the more important decisional conflicts for supreme court reconciliation.”42 When a district court issues a PCA that merely signals but does not certify a conflict, it may imply that the court does not consider the conflict to be one warranting resolution by the Florida Supreme Court.43 That is particularly true given that the Florida Supreme Court has explicitly “advise[d] district courts that when they intend to certify conflict under article V, §3(b)(4) of the Florida Constitution, they use the constitutional term of art ‘certify.’”44
Lastly, conflating these two independent bases of conflict jurisdiction may create uncertainty. For example, situations may arise in which a court’s signal to contrary authority is not a “but see” or a “contra” signal, but rather a more ambiguous “cf.” or “but cf.” signal.45 It is unclear whether such citation signals would sufficiently establish a “direct” conflict for purposes of §3(b)(3).46 Limiting jurisdiction to PCAs formally certifying conflict would create a bright-line rule and eliminate that potential uncertainty. It may also avoid doctrinal confusion. For instance, in one early post-amendment case, the Florida Supreme Court itself relied on §3(b)(4) rather than §3(b)(3) to exercise conflict jurisdiction over a PCA that signaled contrary authority with a “contra” citation, but did not actually certify conflict.47
Conclusion
Ever since Lawrence, the Florida Supreme Court has sporadically recognized that it possesses conflict jurisdiction over PCAs signaling contrary authority. Admittedly, the floodgates have not opened. Indeed, such PCAs appear to be uncommon, for when a legal issue divides the appellate courts, a district court is likely to issue a written opinion addressing it or certify the conflict under §3(b)(4), even if only in a PCA. Thus, time has not vindicated Justice Boyd’s warning in Lawrence that allowing conflict jurisdiction over PCAs signaling contrary authority would represent the “first step in returning…the district courts [to] mere intermediate appellate courts.”48
Justice Boyd was nonetheless correct to emphasize the importance of “firmly adhering to the letter of the 1980 amendment.”49 Such adherence is always critical in matters of constitutional interpretation, but it takes on added significance in this context, given that the 1980 amendment was necessitated by the court’s own departure from the 1956 amendment.50 Fortunately, over the last 35 years, the court has, for the most part, carefully circumscribed the scope of its conflict jurisdiction over PCAs, restored the district courts to courts of final review in most cases, and effectuated the will of the people who approved the 1980 amendment.51 The court deserves praise for its sustained efforts in that regard.
Despite this overall success, this article has nonetheless identified one line of authority in the court’s PCA conflict-jurisdiction jurisprudence that, while affecting only one discrete and uncommon type of PCA, is well-suited for reconsideration. Again, despite intermittently exercising conflict jurisdiction over PCAs signaling but not certifying contrary authority, the court has never meaningfully justified that jurisdiction or considered the potential counterarguments inveighing against it.
That is not to say that the court was incorrect to exercise jurisdiction in the cases summarized above. There are valid arguments both for and against allowing conflict jurisdiction over this type of PCA, which falls in a gray area. Nonetheless, if the court has been incorrectly recognizing such jurisdiction, then principles of stare decisismay not preclude the court from eliminating that enduring vestige of the Foley era. If, however, the court were to re-affirm its jurisdiction, it should endeavor to explain its reasoning, as it has effectively done in its other precedents examining the scope of its conflict jurisdiction under §3(b)(3) with respect to PCAs.
In sum, however the court resolves this narrow jurisdictional issue in a future case, it should do so in a thorough manner, considering the competing arguments outlined above. Until that time, practitioners should bear in mind that, while nearly all PCAs fall outside the scope of the court’s conflict jurisdiction, a narrow exception does remain for those PCAs that not only certify, but also merely signal, the existence of contrary authority.52
1 Fla. Const. art. V, §3(b)(3). This is “[b]y far the largest and most disputatious subcategory” of the court’s discretionary jurisdiction. Harry Lee Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 511 (2005).
2 For the seminal opinions, see Jenkins v. State, 385 So. 2d 1356 (Fla. 1980); id. at 1360 (England, C.J., concurring specially). For the seminal article, see Arthur J. England, Jr. et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. 147 (1980). The summary in this section is drawn from these sources.
3 Lake v. Lake, 103 So. 2d 639, 642 (Fla. 1958).
4 See Andrew L. Adler, A Tribute to Justice Arthur J. England, Jr.: Father of Florida’s Modern-Day Appellate Judicial Structure, 88 Fla. B. J. 26 (Feb. 2014).
5 Robles Del Mar, Inc. v. Town of Indian River Shores, 385 So. 2d 1371 (Fla. 1980); Pena v. Tampa Fed. Sav. & Loan Ass’n, 385 So. 2d 1370 (Fla. 1980); Dodi Pub. Co. v. Editorial Am., S.A., 385 So. 2d 1369 (Fla. 1980).
6 Stallworth v. Moore, 827 So. 2d 974, 978 (Fla. 2002).
7 Gandy v. State, 846 So. 2d 1141, 1144 (Fla. 2003).
8 Wells v. State, 132 So. 2d 1110, 1113-14 (Fla. 2014).
9 See Persaud v. State, 838 So. 2d 529, 533 (Fla. 2003); Grate v. State, 750 So. 2d 625, 626 (Fla. 1999); St. Paul Title Ins. Corp. v. Davis, 392 So. 2d 1304, 1304-05 (Fla. 1980).
10 Jackson v. State, 926 So. 2d 1262 (Fla. 2006). Most recently, however, the court, in a divided opinion, notably declined to extend Jenkins’ progeny beyond decisions rendered without written opinion, exercising conflict jurisdiction over a one-sentence affirmance citing a district court decision that acknowledged a conflict. See Miles v. Weingrad, 164 So. 3d 1208 (Fla. 2015), 2015 WL 2401261 at *2 (Fla. May 21, 2015); id. at *5-8 (Pariente, J., concurring); id. at *8-10 (Canady, J., dissenting).
11 Jollie v State, 405 So. 2d 418, 420 (Fla. 1981) (“Common sense dictates that this [c]ourt must acknowledge its own public record actions in dispensing with cases before it.”).
12 See, e.g., Steven Brannock & Sarah Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. 367, 367-68, 374, 382-85 (2003) (recognizing Jollie and describing motions for clarification or written opinion as “one possible exception” to the rule prohibiting review of PCAs). There is also another notable exception, where the court has exercised conflict jurisdiction to review a citation PCA appending an explanatory parenthetical to the citation. See Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011) (reviewing 994 So. 2d 425 (Fla. 3d DCA 2008)).
13 See Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 514, n.477 (2005) (noting that “[a] district court may seem foolish recognizing contrary authority from the Supreme Court of Florida, but this sometimes happens with good reason,” such as when district court departs from dicta by the Supreme Court of Florida that it believes to be incorrect).
14 Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983) (Boyd, J., dissenting) (quoting Stevens v. Jefferson, 408 So. 2d 634 (Fla. 5th DCA 1983)).
15 Frederick v. State, 459 So. 2d 326, 326 (Fla. 5th DCA 1984).
16 Fla. Star v. B.J.F., 530 So. 2d 286, 288, n.3 (Fla. 1988).
17 See Gandy, 846 So. 2d at 1143-44; Persaud, 838 So. 2d at 532.
18 Dodi, 385 So. 2d at 1369.
19 Young v. State, 641 So. 2d 401, 402, n.1 (Fla. 1994).
20 Dodi, 385 So. 2d at 1369.
21 Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986).
22 See Persaud, 838 So. 2d at 532 (“[I]n those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by this [c]ourt.”).
23 See England et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. at 179-80, 188-90.
24 Jenkins, 385 So. 2d at 1359 (citations omitted).
25 Stevens, 436 So. 2d at 36 (Boyd, J., dissenting).
26 Id.
27 Dep’t of Legal Affairs v. Dist. Ct. of Appeal, 5th Dist., 434 So. 2d 310, 311-12 (Fla. 1983).
28 See Lawrence, 401 So. 2d at 1327-28 (Boyd, J., dissenting).
29 See note 43.
30 Fla. Const. art. V, §3(b)(4).
31 England et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. at 193.
32 See Stevens, 436 So. 2d at 36 (Boyd, J., dissenting).
33 State v. Vickery, 961 So. 2d 309, 311 (Fla. 2007). Those decisions may still be reviewed under §3(b)(3), but only if they create an “express and direct” conflict. Id. at 311-12.
34 Id. at 311.
35 Vetter v. State Farm Mut. Auto. Ins. Co., 423 So. 2d 991 (Fla. 3d DCA 1992); see also Alvarez v. Allstate Ins. Co., 439 So. 2d 1386, 1386-87 (Fla. 1983) (exercising certified-conflict jurisdiction to review a decision that, while not a PCA, included only one sentence stating its conclusion).
36 See Vetter, 439 So. 2d at 1387-88 (Boyd, J., dissenting).
37 See Philip J. Padovano, 2 Florida Appellate Practice §3:11 (2015 ed.) (“Even a summary type decision made on the basis of a single citation, in the absence of any stated legal reasoning, will qualify for review if it is certified to be in conflict.”); see also Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 529 (“The [c]ourt sometimes has accepted jurisdiction even if study of the district court opinion is needed to find the exact conflict.”).
38 Vickery, 961 So. 2d at 312.
39 Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 530 (“The policy for accepting such cases…is that the very act of certifying conflict creates confusion or uncertainty in the law that should be resolved by the [c]ourt, a view the [c]ourt has approved.”).
40 See Diana L. Martin & Robin I. Bresky, Taking the Pathway of Discretionary Review Towards Florida’s Highest Court, 83 Fla. B. J. 55, 56-57 (Nov. 2009) (observing that, in 2008, the court granted requests for conflict review in less than 2 percent of §3(b)(3) cases but 37 percent of §3(b)(4) cases).
41 See Fla. Star, 530 So. 2d at 288 (addressing “separate concepts” of jurisdiction and discretion).
42 England et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. at 193.
43 See Stevens, 436 So. 2d at 36 (Boyd, J., dissenting) (arguing against jurisdiction because the district court “did not even find that the case was sufficiently important, complex, or difficult as to require the writing of an opinion”);Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 523 (acknowledging that not all conflicts are “significant enough” to warrant review).
44 Vickery, 961 So. 2d at 312.
45 Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 514 and n.479.
46 See id. at 514 (opining that “because the signal [but cf.] indicates contradiction only by analysis,” it “may not meet the constitutional requirement for ‘direct’ conflict”).
47 Parker v. State, 406 So. 2d 1089, 1090 (Fla. 1981) (reviewing 386 So. 2d 1297 (Fla. 5th DCA 1980)).
48 Lawrence, 401 So. 2d at 1327-28 (Boyd, J., dissenting).
49 Id. at 1328 (Boyd, J., dissenting).
50 See id. at 1327 (Boyd, J., dissenting) (“Today’s decision is to the 1980 reform what the Foley decision was to the 1956 amendment.”).
51 See England et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. at 149 (predicting that the court’s “construction and application of the amendment, particularly in its formative years, will either realize or frustrate the voters’ hopes for a new day in Florida appellate justice”).
52 Notably, while the Florida Rules of Appellate Procedure allow practitioners to request a written opinion or certification from the district court in order to facilitate further review, there is no explicit mechanism for requesting the court to acknowledge contrary authority. See Fla. R. App. P. 9.330(a); see also Brannock & Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. at 375-92 (discussing further litigation options upon receiving a PCA).
Andrew L. Adler is an appellate attorney with the federal public defender’s office for the Southern District of Florida.
This column is submitted on behalf of the Appellate Practice Section, Christopher Vincent Carlyle, chair, and Brandon Christian, editor..
