The Florida Bar

Florida Bar Journal

The Trial is the Beginning of Your Appeal

Featured Article

” Objection!” Ahh, that magic word that an appellate lawyer wants to see when reviewing trial transcripts for purposes of taking an appeal. Appeals do not really commence when the notice of appeal is filed; they are born at the trial level and it is up to trial counsel to set the stage for the eventual appeal. If trial counsel did his or her job properly, “objection” will be followed by a specific, legally sound reason for the objection. Otherwise, the failure to properly object will waive most objections for purposes of review by an appellate court.1

“Fundamental error,” on the other hand, is a concept that appellate counsel does not want to have to argue, since it is used most often when trial counsel has failed to raise a proper specific objection before the trial court in order to raise an issue that has not been properly preserved for appeal. Fundamental error — error which goes to the foundation of the case or to the merits of the action — can be brought up for the first time on appeal, even without objection in the trial court.2 However, it is an uphill battle to argue and one that should be avoided, if possible.3

The trial is, in fact, the beginning of the appeal, and it is most important that trial counsel realize this fact when trying a case. An appeal is only as good as the record made by trial counsel, who should see to it that every trial is recorded by a court reporter for purposes of possible review. Without a transcript, the trial court’s rulings are presumed correct.4 Trial counsel should be certain that all objections are ruled upon by the trial court.5 An appellate court will not consider for the first time on appeal issues not presented in the trial court.6

It is sometimes forgotten that the initial pleading, whether a complaint or petition, is the foundation for the entire case. Failing to research and draft a legally sound complaint, petition, or information — or indictment in a criminal action — often results in the dismissal of the initial pleading, summary judgment for the defendant, judgment on the pleadings, a directed verdict, or a judgment of acquittal. The failure to timely file a motion to dismiss the initial pleading will waive objections for purposes of an appeal.7

Motions in limine are useful tools. Such motions are usually made prior to or at the commencement of the trial and set forth a legal basis for the inclusion or exclusion of evidence or other allegedly prejudicial material. When the ruling is made to admit evidence, trial counsel must make a timely objection or motion to strike, on the record, and state the specific ground for the objection if it is not apparent. When the motion is made to exclude evidence, the substance of the evidence must be proffered to the court or made apparent within the context of the questions asked at the hearing on the motion. Pursuant to F.S. §90.104(1)(b), once the court has ruled to admit or exclude evidence, it is not necessary to renew the objection or make an offer of proof at trial in order to preserve the assertion of error on appeal. The Florida Supreme Court recently approved this legislative amendment to F.S. §90.104 , which had been in effect since July 1, 2003.8 This is an important development in the law because it contradicts the long line of cases which held that one had to renew an objection at trial in order to preserve the error for purposes of appeal. At the same time, it highlights the pitfalls that can befall trial counsel when situations involve procedural versus substantive matters.9 If a party is successful in obtaining an order in limine and the opposing party violates the order in limine during the trial, a contemporaneous objection must be made to the violation of the order in limine, because the failure to do so may result in a waiver of the argument that the evidence was improperly excluded.10

In a jury trial, the voir dire itself may raise issues for appeal.11 Counsel must renew an objection to the seating of a juror before tendering the panel. Trial counsel has a duty to renew objections made during voir dire prior to the jury being sworn, in order to preserve the issue.12 Improper questioning of prospective jurors may also form the basis for an issue on appeal — but not without a proper objection.13

Opening statements may result in a successful appeal if trial counsel’s statement is legally improper. A specific, contemporaneous objection, a request for curative instruction, and a motion for mistrial are necessary to preserve this issue for appeal.14

When witnesses are testifying or documents are being offered into evidence, it is imperative that trial counsel be alert and make timely and legally sufficient objections. This requirement is known as the contemporaneous objection rule, which originated in the English legal system as a way to preserve error for appellate review.15 This requirement was carried forward and generally adopted in the U.S. If there is no objection, or if trial counsel stipulates to the introduction of objectionable material without realizing the consequences of such action, there is a waiver for purposes of appeal, and such objectionable evidence will not form the basis for a successful appeal.16 At that point, the only thing appellate counsel can do is to try to argue that the admission of the objectionable material constituted fundamental error that deprived the appellant of due process and a fair and impartial trial, and that the trial court had a duty to prohibit the introduction of such evidence.17 However, this is a difficult position to maintain on appeal. It is much easier for appellate counsel to have a properly preserved record with legally sufficient objections set forth in the record by trial counsel.

At the close of the plaintiff/petitioner’s case in a civil action, the defendant should make a motion for directed verdict, which must be renewed at the close of all of the evidence in order to preserve the record for an appeal.18 Similarly, in a criminal case, defense counsel should make a motion for judgment of acquittal at the close of the state’s case and renew it at the close of all of the evidence.19 It is possible to try to cure the failure to make a motion for directed verdict in a civil case by filing a motion for new trial that states that the verdict is contrary to the evidence or to the weight of the evidence.20 However, the authors would not recommend failing to make the proper motions at the proper time, as an outright reversal in the event of success on appeal for insufficiency of the evidence is unlikely to occur in such a situation; only a new trial might be ordered.21 It is important for trial counsel to set forth the legal basis for the motions and not make a “bare-bones” motion for directed verdict or for judgment of acquittal. Such a general claim will result in failure to preserve the sufficiency of the evidence issue for appellate review.22

Closing arguments, like opening statements, must be objected to if legally improper. As in the case of an improper opening statement, an objection should be made at the time of the improper conduct and a request for a curative instruction should follow, together with a motion for mistrial.

In Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Florida Supreme Court recognized an exception to the contemporaneous objection requirement in civil cases in the context of improper, but unobjected to, closing argument. In Murphy, the court outlined a four-point test to determine when a civil judgment could be reversed on the grounds that jurors heard improper but unchallenged closing argument. A complaining party must establish that the unchallenged argument is 1) improper, 2) harmful, 3) incurable, and 4) has so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.23 With this test, the court has not totally closed the door on appellate review of unobjected to, improper closing argument, but has come as close to so doing as due process considerations permit.

In a jury trial, jury instructions often form the basis of a successful appeal so long as the matter is preserved.24 Objections to jury instructions must be timely made (at the charge conference, because once the jury has retired to deliberate, the objection is no longer timely) and renewed before the jury retires to deliberate.25 Fla. R. Crim. P. 3.390(d) is quite specific that a party must object to the giving or the failure to give a jury instruction in order to preserve that issue for appellate review. The contemporaneous objection rule applies to jury instructions.26 The objections should be specific enough to alert the trial court to the nature of the objection. If a trial court misreads an instruction to the jury, counsel must object to preserve the record.27

When a jury returns a verdict, trial counsel should have the jury polled.28 Any irregularities with respect to the verdict or the jury’s deliberations should be raised immediately before the trial court.

Proper post-trial motions should be made and all objections should be renewed in an abundance of caution. A motion for new trial is the most common post-trial motion in both civil and criminal cases. It must be filed within 10 days of the judgment or verdict in either a civil or criminal case.29 The motion for new trial should be made in writing and should set forth with specificity all of the grounds for a new trial.

The appeal time runs from the rendition of the judgment in a bench trial or rendition of the verdict in a jury trial.30 In a criminal case, the notice of appeal must be filed any time after rendition of the judgment and within 30 days of the written order imposing sentence.31 A notice of appeal (with a copy of the judgment being appealed attached to it) is filed with the clerk of the trial court and must be accompanied by proper fees. In a civil case, the notice must be filed within 30 days from rendition of the judgment or verdict.32 “Rendition” means that a signed written order is filed with the clerk of the lower tribunal.33 A motion for new trial or rehearing may extend the time for rendition so long as it is timely and authorized. However, caution should be exercised as some situations have more specific rules that may not extend the time period. A complete list of motions that may extend the time to file an appeal are set forth in Fla. R. App. P. 9.020(h).34 Oral motions will not suspend rendition of an order.35

Unless the record is protected at the trial level, and a notice of appeal is timely filed, an appeal is almost certain to be unsuccessful. Often, employing appellate counsel to act in an advisory capacity during the trial in order to be certain that the record is being preserved for any possible appeal may be helpful. Do object! Don’t be shy! A successful appeal truly begins at trial.


1 FB v. State, 852 So. 2d 226 (Fla. 2003); Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981), opinion modified Worrell v. John F. Kennedy Memorial Hospital, Inc., 421 So. 2d 1 (Fla. 4th D.C.A. 1981).

2 Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970).

3 See Farina v. State, 937 So. 2d 612 (Fla. 2006); Keech v. Yousef, 815 So. 2d 718 (Fla. 5th D.C.A. 2002), cause dism. 829 So. 2d 918 (Fla. 2002), reh. den. 2002; Seaboard Airline Railroad Company v. Strickland, 88 So. 2d 519 (Fla. 1956).

4 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979); Lannon v. Foley, 914 So. 2d 518 (Fla. 5th D.C.A. 2005).

5 Tolbert v. State, 922 So. 2d 1013 (Fla. 5th D.C.A. 2006)(failure to obtain court ruling waives objection).

6 Dober, 401 So. 2d 1323-4.

7 Abrams v. Paul, 453 So. 2d 826 (Fla. 1st D.C.A. 1984) (holding that failure to make timely motion to dismiss complaint waives failure to state a cause of action in a civil matter). See also Roberts v. State, 374 So. 2d 1000 (Fla. 3d D.C.A. 1979) (appellate court in criminal case will not review sufficiency of indictment or information absent objection in the trial court).

8 In re Amendments to the Florida Evidence Code, 914 So. 2d 940 (Fla. 2005).

9 Prior to the Florida Supreme Court’s approval of the amendment to §90.104(1), the Fifth District Court of Appeal noted that it was mindful of the 2003 amendment to §90.104(1) but added this caveat: “[A]s of the trial date [emphasis added] this provision of the statute has not yet been adopted by the Florida Supreme Court. It is the constitutional prerogative of the Florida Supreme Court, not the [l]egislature, to enact rules that regulate court procedure. Art V, Sec. 2(a), Fla. Const.
(‘The supreme court shall adopt rules for the practice and procedure in all courts….’). Therefore, when the legislature enacts a procedural rule of evidence, it must be adopted by the [S]upreme [C]ourt.” Crumbley v. State, 876 So. 2d 599 (Fla. 5th D.C.A. 2004). While the court ultimately refrained from deciding the case on that issue (and did note that the Supreme Court usually specifies that the effective date of the rule is the date the legislature designated as the effective date of the enactment), it poses an interesting dilemma when the Supreme Court has not yet approved a procedural statute that might affect a pending case.

10 Tobin v. Alfieri Maserati S.P.A., 513 So. 2d 699 (Fla. 3d D.C.A. 1987).

11 See State v. Neil, 457 So. 2d 431 (Fla. 1984); State v. Slappy, 522 So. 2d 18 (Fla. 1988) (discriminatory use of peremptory challenges as issues on appeal); Moore v. State, 525 So. 2d 870 (Fla. 1988) (failure to exclude juror for cause constitutes reversible error).

12 Joiner v. State, 618 So. 2d 174 (Fla. 1993); Scott v. State, 618 So. 2d 174 (Fla. 3d D.C.A. 2006); Gonzalez v. Martinez, 897 So. 2d 525 (Fla. 3d D.C.A. 2005).

13 Steinhorst v. State, 412 So. 2d 332 (Fla. 1982); Moore v. State, 939 So. 2d 1116 (Fla. 3d D.C.A. 2006).

14 Grau v. Branham, 761 So. 2d 375 (Fla. 4th D.C.A. 2000); Hasegawa v. Anderson, 742 So. 2d 504 (Fla. 2d D.C.A. 1999).

15 Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1016 (Fla. 2000); Castor v. State, 365 So. 2d 701 (Fla. 1978).

16 Brack v. State, 919 So. 2d 578 (Fla. 4th D.C.A. 2006)(Stipulation to deposition and no objection to use at trial constitutes a waiver.); Frederickson v. Levinson, 495 So. 2d 842 (Fla 3d D.C.A. 1986)(Failure to object to testimony concerning a transaction with a deceased person constitutes a waiver.).

17 See Seaboard Airline Railroad Company v. Strickland, 88 So. 2d 519 (Fla. 1956).

18 Fla. R. Civ. P. 1.480; 6551 Collins Avenue Corporation v. Millen, 104 So. 2d 337 (Fla. 1958).

19 Fla. R. Crim. P. 3.380.

20 Ruth v. Sorensen, 104 So. 2d 10 (Fla. 1958).

21 G eneral Motors v. City of Miami Beach, 420 So. 2d 601 (Fla. 3d D.C.A. 1982).

22 Cornwall v. State, 425 So. 2d 1189 (Fla. 1st D.C.A. 1983).

23 See also Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 1989); Sawczak v. Goldenberg, 710 So. 2d 996 (Fla. 4th D.C.A. 1988); Bertoglio v. American Savings and Loan Ass’n, 491 So. 2d 1216 (Fla. 3d D.C.A. 1986).

24 Fla. R. Civ. P. 1.470(b).

25 Bunkley v. State, 882 So. 2d 890 (Fla. 2004).

26 City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989).

27 Klepper v. J.C. Penney, Inc., 340 So. 2d 1170 (Fla. 4th D.C.A. 1977).

28 Fla. R. Crim. P. 3.450; Thyssen Krupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th D.C.A. 2003); Beverly Health and Rehabilitation Services, Inc. v. Freeman, 7098 So. 2d 549 (Fla. 2d D.C.A. 1998).

29 Fla. R. Civ. P. 1.530; Fla. R. Crim. P. 3.590.

30 Fla. R. App. P. 9.110(b)(3).

31 Fla. R. App. P. 9.140(b)(3).

32 Fla. R. App. P. 9.020(h).

33 Id.

34 See also Fire & Casualty Insurance Company of Connecticut v. Sealey, 810 So. 2d 988 (Fla. 1st D.C.A. 2002).

35 Weinberg v. Stein, 555 So. 2d 379 (Fla. 3d D.C.A. 1989).