APPELLATE MOTIONS IN A30-MINUTE NUTSHELLJARED M. KRUKAR, B.C.S. APPELLATE PRACTICE

ERIC J. NETCHER

SO MANY MOTIONS…

• Extension of time

• Supplement or correct the record

• Amend a brief

• Motion for stay (9.310)

• Motion for review of denial of stay or bond (9.310(f))

• Rehearing/Rehearing enbanc/Written opinion/Clarification (9.330, 9.331)

• Stay of mandate

• Substitute counsel

• Substitute Parties

• For Fees/Costs

• For review of order of trial court on appellate fees or costs

• Sanctions

• Review of denial of indigent status

• Proceed in forma pauperis

• Appear pro hac vice

• Withdraw

• Submit case to mediation

• Dispense with mediation

• Motion to disqualify judge/attorney/court/mediator

• Accept filing out-of-time

• Determine jurisdiction

• File document under seal

• Stay order granting access to press or public

• Motion to certify appeal as requiring immediate resolution by Florida Supreme Court

• Appointment of appellate counsel

• Relinquish jurisdiction

• Strike

APPELLATE MOTIONS, GENERALLY

• Rule 9.300 governs most appellate motions.

• All motions must

• State the grounds on which it is based

• State the relief sought

• Provide argument in support

• Cite relevant authority

APPENDICES FOR MOTIONS • If you want to submit documents in support of your

motion, file an appendix• Follow rule 9.220 for formatting requirements.• Common mistakes

• Not including order on appeal• Not including sufficient information on the cover. • Not bookmarking/paginating in the PDF program

correctly

Use an Appendix

• Do NOT, generally, attach the documents to your motion.

• Attaching documents may result in your filing being rejected.

Do Not use attachments

DOES MY MOTION TOLL?

• Motion for Extension of Time• Motions related to preparing the record• Anything not listed in 9.300(d)

Yes (Default)

• Motion to supplement the record

Probably not

• Anything filed in the supreme court (unless a tolling motion is filed)

• Long list in 9.300(d) – post trial release; stay pending appeal; oral argument; joinder and substitution; amicus curiae; appellate attorneys’ fees; service; admission or withdrawal of attorneys; sanctions; expediting appeal;

• Motions related to appeal proceedings to review a fiinal order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, rule 9.147

• Motion for mediation filed more than 30 days after notice of appeal

No

MOTIONS FOR EXTENSION OF TIME

• Must certify that counsel has consulted opposing counsel, and:

• that the movant’s counsel is authorized to represent that opposing counsel either

• Has no objection

• Or will promptly file an objection

• Other motions may also contain this type of certification if appropriate.

• May be more persuasive to the court.

MOTIONS TO CORRECT OR SUPPLEMENT THE RECORD (9.200(F))

• Before the record is transmitted• The parties can stipulate to fix an error or

omission, OR the appellate court can fix it.

• Once the record is transmitted• The court can direct the parties to supply

omitted parts of a record.

• The parties may move to supplement.

• Appellant’s burden to ensure the record is proper and transmitted.

POST-OPINION MOTIONS

• 9.330 – Rehearing, Clarification, Certification, Written Opinion

• 9.331 – Rehearing En Banc

• 15 days from date of opinion or order to file any of these.

POST-OPINION MOTIONS

• Rehearing• Based only on something the court overlooked or misapprehended.

• Cannot raise any arguments not previously raised

• Should not re-argue the points previously raised

• Clarification

• State with particularity the points that require clarification

• Certification

• Identify the cases that the opinion expressly and directly conflicts with or identify the issue to be certified as of great public importance

• Written Opinion

• Explain how the opinion would provide a legitimate basis for supreme court review or be of use to the bench and bar of the state. The rule provides many options here

POST-OPINION MOTIONS

• Rehearing En Banc – 9.331

• Only on basis case is of exceptional importance or en banc consideration is necessary to maintain uniformity in the court’s decisions.

• Required statement required – see the rule

STRATEGIC CONSIDERATIONS

Timing to file a motion

Opposing a motion

Time-certain requests

Motions to strike

Motion for rehearing/rehearing en banc/written opinion

SPECIFICS FOR 9.146

APPEALS (1)

• 9.146 governs appeals in dependency, termination of parental rights, and cases involving families and children in need.

• Who may appeal? Child, parent, guardian ad litem, any party affected by the order, appropriate state agency

• Who may not appeal? Anyone else. No family members unless they are a partyto the lower court proceedings.

SPECIFICS FOR 9.146 APPEALS

(1I)

STAYS

• Party seeking a stay of an order pending any final or nonfinal appeal under 9.146 files a motion in the trial court, and obtains review of an order in the trial court by motion in the appellate court. Similar to other stays.

• No stay from a TPR order except that placement for an adoption will be stayed. Child remains in custody.

SPECIFICS FOR 9.146 APPEALS (III)

TIME

• Time limitations to prepare the appeal are reduced by rule.

• Court reporters need extraordinary reasons for extensions

• Parties need “extraordinary circumstances in which the extension is necessary to preserve the constitutional rights of a party, or in which substantial evidence exists to demonstrate that without the extension the child’s best interests will be harmed.”

• The motion must (a) explain it is from TPR or Dependency order, set out the extraordinary circumstances meriting an extension, specify the amount of time necessary, and explain the effect of the extension on the progress of the case.

SPECIFICS FOR 9.146 APPEALS (IV)

POST-OPINION MOTIONS

• 9.330 and 9.331 motions are the same as in a regular appeal, EXCEPT that no response is permitted.

SPECIFICS FOR 9.146 APPEALS (V)

INEFFECTIVE ASSISTANCE OF COUNSEL

• Like criminal cases and unlike civil cases, a parent may claim ineffective assistance of counsel in TPR cases (Fla. R. Juv. Proc. 8.530)

• In the trial court, filing a motion claiming ineffective assistance will toll rendition of the TPR order.

• There are lots of special rules that affect the pending TPR appeal when a motion is filed, or a trial court rules on the motion. 9.146(i)

• An order denying a motion for ineffective assistance can be appealed, but the appeal is addressed WITHIN the appeal from the order of TPR.

9.147 APPEALS – FINAL ORDERS DISMISSING PETITIONS FOR JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF

PREGNANCY

These appeals, from start to finish, last a maximum of

7 days.

Unlikely to be a pro bono matter.

LOCAL RULES AND

PREFERENCESAGREED

EXTENSIONS OF TIME

• First DCA – AO 19-2 (effective 2/21/19)

• Most Criminal Appeals

• 60 days for IB and AB, no RB

• Most Civil Appeals

• 90 days for IB and AB, 15 days for RB

• NOT FOR workers’ comp, adoptions, dependency, TPR, dependency, emergencies, or any other expedited appeal

LOCAL RULES AND

PREFERENCESAGREED

EXTENSIONS OF TIME

• Second DCA, 2013-1 (effective 6/3/13)

• Final Civil and Criminal appeals

• 90 days for IB and AB, 60 days RB

• Not for nonfinal or original proceedings

• Not for adoptions, dependency, TPR, emergencies, or any other expedited appeal, including domestic relations appeal with custody or visitation matter at issue.

LOCAL RULES AND

PREFERENCESAGREED

EXTENSIONS OF TIME

• Third DCA, A03D13-01(effective 6/3/19)

• Final Civil and Criminal appeals, including dissolution of marriage

• 120 days for IB and AB, none for RB

• Not for nonfinal or original proceedings

• Not for adoptions, dependency, TPR, emergencies, or any other expedited appeal

LOCAL RULES AND

PREFERENCESAGREED

EXTENSIONS OF TIME

• Fourth DCA, 2018-1(effective 3/27/18)

• Final Civil and Criminal appeals

• 90 days for IB and AB, 15 days RB

• Not for nonfinal, adoptions, dependency, TPR, emergencies, or any other expedited appeal

• Silent on extraordinary relief, but only mentions “briefs” and not “petitions” or “responses.”

LOCAL RULES AND

PREFERENCESAGREED

EXTENSIONS OF TIME

• Fifth DCA, AO5D19-02 (Amended) (effective 3/14/19)

• Does not apply when a date has been set by the court

• Criminal appeals

• 30 days for IB and AB, 10 days RB

• If cross appeal, reply/cross-answer and cross-reply each get 10 days

• Civil Appeals

• 60 days for IB and AB, 30 days RB

• If cross appeal, reply/cross-answer and cross-reply each get 30 days

• Must certify extension has been sent to client.

• Not for adoptions, dependency, TPR, emergencies, or any other expedited appeal, or original proceedings.

OTHER LOCAL RULES AND PREFERENCES

• First DCA Administrative Order 10-1 (effective 3/24/10)

• Docketing statements

• Fifth DCA AO5D18-02 (Amended) (effective 3/5/19)

• Any request for extension of time must certify that the client has been given a copy of the request.

• Fifth DCA A05D19-03 (effective 5/16/19)

• Lots of restrictions on rescheduling oral argument

• Fifth DCA A05DCA06-03 (effective 8/14/06)

• Appellate mediation program

ABOUT THE PRESENTERS

• Jared M. Krukar is a board-certified appellate attorney with Kynes, Markman & Felman, P.A., in Tampa, Florida. He is a former law clerk of The Florida Second District Court of appeal, where he contributed in both Central Staff and as a judicial staff attorney to the Honorable Darryl C. Casanueva. Jared chairs The Florida Bar Appellate Practice Section’s Diversity Committee and is the current President of the North Tampa Bar Association. He is also a Past Chair of the Hillsborough County Bar Association Appellate Law Section. Outside of practice, Jared teaches Appellate Advocacy at the University of Tampa as an Adjunct Professor.

• Eric J. Netcher is a Shareholder with the firm of Walker, Revels, Greninger & Netcher, PLLC in Orlando, Florida. Eric is a former law clerk to the Honorable David A. Faber, Senior Judge of the United States District Court for the Southern District of West Virginia. He is also the Vice Chair of the Florida Bar Appellate Practice Section Pro Bono Committee and the Chair of the Orange County Bar Association Appellate Practice Committee.