AMEND. TO FLA. RULES OF APPELLATE PROCEDURE, SC02-270.

• Decision Date: 29 August 2002
• Docket Number: No. SC02-270.,SC02-270.
• Citation: 827 So.2d 888
• Parties: AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE.
• Court: Florida Supreme Court

827 So.2d 888

AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE.

No. SC02-270.

Supreme Court of Florida.

August 29, 2002.

Terrence Russell, President, The Florida Bar, Fort Lauderdale, FL; Tod Aronovitz, President-elect, The Florida Bar, Miami, FL; Winifred John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Winifred J. Sharp, Chair, Appellate Court Rules Committee, Daytona Beach, FL; and James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Michael L. Rosen of Bricklemyer, Smolker & Bolves, Tallahassee, FL, on behalf of Florida Home Builders Association; and Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, FL, Responding.

PER CURIAM.

We have for consideration the biennial report of proposed amendments filed by The Florida Bar's Appellate Court Rules Committee (Committee). We have jurisdiction. See art. V, ž 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(c).

The Committee proposes amendments to Florida Rules of Appellate Procedure 9.020, 9.040, 9.120, 9.140, 9.180, 9.190, 9.330, 9.370, 9.440, and 9.800. Pursuant to Florida Rule of Judicial Administration 2.130(c)(2), the proposed changes were submitted to the Board of Governors of The Florida Bar, which recommended approval with the exception of proposed new rule 9.140(d). The Committee addressed the Board's concerns and amended proposed rule 9.140(d) before its proposal was submitted to this Court. The Committee's proposals were published pursuant to Florida Rule of Judicial Administration 2.130(c)(5), and two comments were received. After reviewing the Committee's proposals and the comments received and hearing oral argument, we adopt the Committee's proposed amendments, with the noted exceptions, as discussed below. Purely editorial amendments are not discussed.

Rule 9.020 (Definitions), subdivision (h) (Rendition (of an Order)) is amended as proposed by the Committee to replace the reference to Florida Family Law Rule of Procedure 12.492 with a reference to Florida Family Law Rule of Procedure 12.491.

Rule 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal), subdivision (f) (Briefs on Merits) is amended as proposed by the Committee to require a petitioner seeking discretionary review in this Court to include, with the brief on the merits, an appendix containing a conformed copy of the decision of the district court of appeal. This amendment to the rule is in accord with the actual practice in this Court.

We next address amendments to rule 9.140 (Appeal Proceedings in Criminal Cases). In accordance with the Committee's proposal, rule 9.140, subdivision (b)(5) (Withdrawal of Defense Counsel after Judgment and Sentence) is deleted and a new subdivision (d) (Withdrawal of Defense Counsel after Judgment and Sentence or After Appeal by State) is adopted. This new subdivision addresses both defense and state appeals, and was proposed in response to the Second District Court of Appeal's decision in State v. White, 742 So.2d 374 (Fla. 2d DCA 1999).

In White, the Second District observed that "neither the applicable statutes nor the rules of procedure are well written to address the issue of substitution of counsel in a case in which an indigent defendant is the appellee." Id. at 375. As the Committee explained:

In cases in which the state takes an appeal, and the defendant was represented by counsel, there was no clear provision in this rule for continued appellate representation. As White points out, problems resulting from this deficiency in the rule are particularly common when the court has appointed private counsel for an indigent defendant for the trial proceedings. In many cases, defendants have not been afforded representation for the state appeal proceedings.

However, in response to concerns expressed when the rule was submitted to the Board of Governors that the rule as initially proposed might force an attorney to represent a defendant on appeal, contrary to his or her contract or retainer, or wishes, the Committee proposed subdivision (E) and explained:

(E) makes clear that, in publicly-funded cases, public defenders and private counsel appointed to handle indigent cases at the trial level retain specified responsibilities to insure representation of defendants for their appeal or the state's appeal. It also specifies that retained trial defense counsel may withdraw from representation of a defendant seeking to appeal, or in the event of a state appeal, but requires that the attorney file a motion to withdraw in the appellate court with service on the defendant, stating what the defendant's plans for representation are for the appeal, or may be, if any. This is a new requirement in the rule, but parallels the procedure set forth in the White case. The committee felt it would not impose too great a burden on retained defense counsel.

With these provisos, we approve the amendments to this rule, which are intended to ensure that indigent defendants are afforded continued representation after the conclusion of trial court proceedings when the State files an appeal.

Next, we amend rule 9.180 (Appeal Proceedings to Review Workers' Compensation Cases), subdivision (c)(3) (Relinquishment of Jurisdiction by Court to Consider Settlement) as proposed by the Committee to conform to chapter 2001-91, section 17, Laws of Florida, which eliminated the requirement that a Judge of Compensation Claims approve the entirety of a settlement if the claimant is represented by counsel.

The next amendment is to rule 9.330, which governs motions for rehearing. This amendment was proposed in response to the Court's appointed committee's report on Per Curiam Affirmances. The Committee proposes amending subdivision (a) to allow a litigant to request, as part of a motion for rehearing, that a district court of appeal issue an opinion in a case where that court has issued a decision without opinion. A new Committee Note explains that the addition to subdivision (a) is not a limitation on the right to seek rehearing on other grounds. The note provides in full:

2002 Amendment. The addition of the language at the end of subdivision (a) allows a party to request the court to issue a written opinion that would allow review to the supreme court, if the initial decision is issued without opinion. This language is not intended to restrict the ability of parties to seek rehearing or clarification of such decisions on other grounds.

The rule also requires that a request "shall include" the following statement signed by the attorney for the party:

I express a belief, based upon a reasoned and studied professional judgment, that a written opinion will provide a legitimate basis for supreme court review because (state with specificity the reasons why the supreme court would be likely to grant review if an opinion were written).

This requirement is similar to rule 9.331, which governs motions for rehearing en banc. However, as attorney Gregory Philo points out in his comments, rule 9.331 limits the requirement of the statement accompanying the request to motions filed by attorneys. Mr. Philo suggests that a similar limitation be included in this amendment. We agree with this suggested limitation, as did the Chair of the Appellate Court Rules Committee at oral argument. Thus, rule 9.330(a) is amended as proposed by the Committee to allow a litigant to request, as part of a motion for rehearing, that a district court of appeal issue an opinion in a case where that court has issued a decision without opinion. However, we have added language to make it clear that only those requests filed by attorneys must include the signed statement set forth in the rule.

We also adopt the Committee's proposal to amend rule 9.330(d) to expressly provide that the Court will not entertain motions for rehearing addressed to the dismissal of a petition for an extraordinary writ when that writ is used to seek review of a district court of appeal decision without an opinion. This is in accord with our opinion in Grate v. State, 750 So.2d 625 (Fla.1999).

We next note that there are substantial amendments to the rule governing the filing of briefs by amici curiae, rule 9.370, and we amend the rule as proposed by the Committee. In this regard, we retain the language that appears in rule 9.370, which also appeared in the predecessor rule, that the brief may be filed only "by leave of court or by consent of all parties," provided that the brief otherwise is in compliance with the time requirements and page limitations of the rule. We are aware that despite the alternative language of the rule, courts do exercise their own inherent authority to decide if the brief should be permitted. The comments of the Florida Home Builders Association request that we clarify whether this rule authorizes the filing of an amicus brief solely on the written consent of all parties, or whether the rule always requires leave of court. Because the Committee has advised that it did not consider this precise issue when considering the revision of the rule, and in light of the concerns brought to light by the comments filed, we request that the Committee study this matter further and make recommendations to the Court on this issue after receiving input from all of the appellate courts as to their practice and policy.

In accordance with the Committee's proposal, rule 9.440 (Attorneys), subdivision (a) (Foreign Attorneys) is amended to make it consistent with Florida Rule of Judicial Administration 2.061 and subdivision (b) (Withdrawal of Attorneys) is amended to make it consistent with Florida Rule of Judicial Administration 2.060(i) (Withdrawal of Attorney).

Finally, rule 9.800 (Uniform Citation System), subdivision (i) (Florida Rules) is amended as proposed by the Committee to change the form for citation to the Rules Relating to...