Whipple v. State, 82-1710

Decision Date09 March 1983
Docket NumberNo. 82-1710,82-1710
PartiesDouglas Bret WHIPPLE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

H. Dohn Williams, Jr., of Varon & Stahl, P.A., Hollywood, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Affirmed.

GRIMES, A.C.J., and SCHEB and RYDER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant was convicted of drug trafficking and carrying a concealed firearm. We affirmed the trial court and issued a per curiam affirmance, commonly referred to as a PCA. Appellant has filed a motion for a rehearing asking the court to reconsider points he previously briefed and argued. Additionally, he complains of this court's failure to write an opinion. The motion for rehearing must be denied; however, we take the occasion to address the function of a motion for rehearing and to explicate why counsel cannot reasonably expect a written opinion from this court in all affirmances of lower tribunals.

Appellant, on rehearing, focuses on two of the five points he previously argued: first, that his own testimony established his defense of coercion and duress as a matter of law; and second, that there was insufficient evidence of his knowledge of the presence of the contraband to uphold the jury's finding that he possessed it. After reviewing the record and briefs and listening to oral argument, we found no merit in appellant's position on these or the other points he raised. On the first point we concluded that while there was evidence from which the jury could have found that appellant was coerced or acted under duress, the jury did not err in rejecting that defense. The jury was instructed as to the circumstances under which coercion and duress may be a defense, and there was no attack on the correctness of the court's instruction. On the second point, we determined that the evidence was sufficient for the jury to conclude that appellant had knowledge of the contraband that was contained in his own plane which he was flying en route from Jamaica to Florida.

Having concluded that appellant's conviction and sentence should be affirmed, we decided that to write an opinion in this case would merely serve to refute appellant's arguments and would not show any conflict in law which would merit an application for discretionary review to the supreme court. Furthermore, an opinion would not have been of any significant assistance to the bench or bar of this state.

At the outset of this discussion, we wish to point out that we have not singled out appellant's motion for rehearing as being any less meritorious than many other similar motions filed in this court. Rather, we have taken this occasion to speak generally to the bar, and particularly to those who practice before this court, because our experience indicates that for many practitioners a motion of this type has become a routine step in appellate practice. In 1982, for example, motions for rehearing were filed in about one out of every four cases we heard on the merits. With very few exceptions they were denied.

Florida Rule of Appellate Procedure 9.330 governs motions for rehearing or for clarification. Subsection (a) provides:

A motion for rehearing or for clarification of decision may be filed within 15 days of an order or within such other time set by the court. The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended. The motion shall not re-argue the merits of the court's order. A reply may be served within 10 days of service of the motion.

From our experience, most motions for rehearing or clarification contain a condensed version of all or some of the points previously argued. Frequently, such motions urge the court to reconsider matters previously considered, or to write an opinion to refute contentions of counsel. Occasionally, the motion is misused by attorneys merely to express their displeasure with the court's judgment.

This leads to our first point: counsel should carefully and seriously consider the necessity or desirability of asking the court to rehear a case.

Shortly after the district courts of appeal were established, Judge Wigginton, in State v. Green, 105 So.2d 817 (Fla. 1st DCA 1958), cert. discharged, 112 So.2d 571 (Fla.1959), addressed the function of a motion (then petition) for rehearing and noted:

Certainly it is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral argument and necessarily considered by the court, or to request the court to change its mind as to a matter which has already received the careful attention of the judges, or to further delay the termination of litigation.

105 So.2d at 818, 819.

We recommend that counsel carefully review Judge Wigginton's well articulated views in Green prior to filing a motion for rehearing. We subscribe to those views and urge counsel to file a motion only where careful analysis indicates a point of law or a fact which the court has overlooked or misapprehended, or where clarification of a written opinion is essential. Counsel should not use such motion as a vehicle to reargue the merits of the court's decision or to express displeasure with its judgment.

The second matter we address is the appellant's contention, and one frequently made by other counsel, that he cannot invoke the supreme court's discretionary review because of our failure to write an opinion.

Appellant argues that by our having issued a PCA, we have thwarted his right to obtain review in the supreme court. The fallacy of this contention is that under our constitution he did not have such a "right" of review in the supreme court in the first place. While Florida guarantees each litigant a right of review, that guarantee does not extend to having the supreme court hear each appeal. With Florida's rapidly growing population and enormous appellate caseload, if every litigant had a right of review in the supreme court, the court would be so overwhelmed that it could not possibly focus on the important cases. 1 In fact, this was one of the principal reasons which led to the creation of the district courts of appeal in 1957. When the supreme court caseload reached 1,225 cases in 1955, the Judicial Council of Florida proposed creation of the district courts of appeal. Their objective was to restrict access to the Supreme Court of Florida in order to avoid double appeals and to make appellate justice more readily available to litigants by hearing appeals near the source. 2 The legislature agreed, and on November 6, 1956, the voters overwhelmingly adopted an amendment to Article V of the Florida Constitution providing for creation of the district courts of appeal. 3 It was originally intended that the district courts were to have final appellate jurisdiction in most cases. 4 However, this finality eroded as the supreme court began looking to trial records, rather than to district court holdings to establish conflict jurisdiction. 5 The landmark case, of course, was Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). As the finality of the district courts continued to erode, the supreme court caseload, which had decreased to 555 in 1959, 6 became even more staggering with 2,676 cases filed in that court in fiscal year 1978-79. 7 About half of those were petitions for conflict certiorari. As a result of considerable study, an amendment to Article V of the Florida Constitution was proposed to revise the jurisdiction of the supreme court and district courts of appeal. The amendment was adopted by the voters on March 11, 1980. 8 The amendment limits the supreme court's mandatory review of district court of appeal decisions to those declaring invalid a state statute or provision of the state constitution. It provides for discretionary review of district court decisions declaring valid state statutes or expressly construing a provision of the state or federal constitution or affecting a class of constitutional or state officers. Discretionary review is also given in those cases which expressly and directly conflict with the decision of another district court of appeal or the supreme court on the same question of law. The supreme court may no longer search into the "record proper" to determine whether a district court affirmance creates a necessary conflict. 9 See, Jenkins v. State, 385 So.2d 1356 (Fla.1980); Dodi Publishing Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla.1980). Thus, the district courts of appeal now have final appellate jurisdiction in most cases, as was originally intended.

Under our present constitutional scheme, the district courts of appeal engage primarily in the so-called error-correcting function to insure that every litigant receives a fair trial. This frees the supreme court to discharge its judicial policy-making function of clarifying the law and promulgating new rules of law. These are matters which have an impact on those other than the individual litigants. District courts can now certify matters "of great public importance" or decisions "in direct conflict" with the decision of another district court of appeal. Moreover, the district courts can also certify trial court judgments which are "of great public importance" or which have "a great effect on the proper administration of justice throughout the state" as needing "immediate resolution by the supreme court." 10 As recently pointed out by Justice Overton, "[t]he real effect of the amendment is the substantial reduction in the amount of time the supreme court spends on its screening responsibility," relieving an overworked state supreme court. 11

We recognize that if we decide a case without writing an opinion, the losing party...

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