AMEND. TO FLA. RULES OF APPELLATE PROC., SC00-718.

• Decision Date: 12 October 2000
• Docket Number: No. SC00-718.,SC00-718.
• Parties: AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE.
• Court: Florida Supreme Court

780 So.2d 834

AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE.

No. SC00-718.

Supreme Court of Florida.

October 12, 2000.

Herman J. Russomanno, President, The Florida Bar, Miami, Florida; Terrence J. Russell, President-elect, The Florida Bar, Fort Lauderdale, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; Susan W. Fox, Past Chair, Appellate Court Rules Committee, of Macfarlane, Ferguson & McMullen, Tampa, Florida; and Deborah K. Brueckheimer, Chair, Appellate Court Rules Committee, Bartow, Florida, for Petitioner.

Nancy A. Daniels, Public Defender, and Paula S. Saunders and Chet Kaufman, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida; and David B. Pakula, Fort Lauderdale, Florida, Responding.

PER CURIAM.

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

The committee proposes amendments to Florida Rules of Appellate Procedure 9.020, 9.030, 9.040, 9.120, 9.125, 9.130, 9.140, 9.141, 9.146, 9.180, 9.190, 9.200, 9.210, 9.330, 9.350, 9.420, 9.800, and 9.900. The committee's proposed amendments were submitted to The Board of Governors of The Florida Bar, which recommends approving them. The committee's proposed amendments were published for comment and several comments were filed.

After reviewing the committee's proposed amendments, considering the comments filed by interested persons, and hearing oral argument, we adopt the committee's proposed amendments with the exceptions noted below. Purely editorial amendments are not discussed.

In rule 9.020 ("Definitions"), we decline to adopt the committee's proposal to add new subdivision (h)(4) regarding rendition of appellate orders which, as proposed, provides:

If such a motion or motions [i.e., an authorized and timely motion for new trial, for rehearing, for clarification, for certification, to alter or amend, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, to correct a sentence or order of probation pursuant to Florida Rule of Criminal Procedure 3.800(b)(1), to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l), or to vacate an order based upon the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.492] have been filed in a district court of appeal, the final order shall not be deemed rendered as to any party to the appeal until the filing of a written order disposing of all such motions.

In referring to "such a motion or motions," the text of this proposed subdivision directly refers to several non-appellate motions (such as, for example, a motion for new trial or motion to challenge the verdict), thereby rendering it at least partially inapplicable to district courts of appeal. Additionally, although as urged by the committee the language of this proposed subdivision is facially consistent with this Court's holding in St. Paul Fire & Marine Insurance Co. v. Indemnity Insurance Co. of North America, 675 So.2d 590 (Fla. 1996), the committee's underlying intent in proposing this subdivision exceeds the scope of St. Paul. Specifically, this Court's holding in St. Paul that "a district court's order is not `rendered' until there has been a disposition of all motions relative to the order," id. at 592, neither compels nor directly supports the committee's underlying intent in proposing subdivision (h)(4) to establish that "[a] party [in a district court] who wishes to seek further review in the Supreme Court may not do so until the [district] court has disposed of all motions for rehearing, clarification, certification, or rehearing en banc." We accordingly decline to adopt proposed subdivision (h)(4).

However, we do adopt the committee's proposal to amend subdivision (h) ("Rendition (of an Order)") of rule 9.020 to replace the term "judgment notwithstanding the verdict" with "judgment to challenge the verdict," and to include provisions currently located in subdivision (i) ("Rendition (of an Order Based on Florida Family Law Rule of Procedure 12.492)"), which is stricken.

In rule 9.140 ("Appeal Proceedings in Criminal Cases"), we decline to adopt the committee's proposal to add a new subdivision (i) to set forth comprehensive rules regarding the filing of Anders briefs.¹ In addition to setting forth existing procedures for filing Anders briefs, proposed subdivision (i) also creates new procedures for filing Anders memoranda (as opposed to briefs) in cases where the appellant has pled guilty or nolo contendere without reserving a right to appeal or raising any substantive issue. Additionally, as urged by Public Defender Nancy A. Daniels and Assistant Public Defender Paula S. Saunders of the Second Judicial Circuit, the portion of proposed subdivision (i) providing that "Anders briefs or memoranda may include arguments on the merits relating to minor sentencing errors" may conflict with this Court's recent decision construing the Criminal Appeals Reform Act in Maddox v. State, 760 So.2d 89 (Fla. 2000). Another portion of proposed subdivision (i) may be improperly substantive in nature by requiring that "counsel who file Anders briefs or memoranda ... shall not argue against the interests of their clients" and that such briefs or memoranda "shall reflect a thorough review of the record." We recognize the merit of codifying Anders procedures and commend the committee for its extensive efforts in this regard but, due to these and other possible problems with proposed subdivision (i), we decline to adopt it at this time. We instead request that the committee further study this issue with input from all the district courts of appeal and any other interested persons.

However, we do adopt the committee's proposal to amend subdivision (b)(1)(B) of rule 9.140, which addresses appeals permitted by defendants, to provide that a defendant may appeal a final order withholding adjudication after a finding of guilt. We likewise adopt the committee's proposal to renumber subdivision (b)(1)(C) as subdivision (b)(1)(D) and to amend it to provide that a defendant may appeal orders denying relief under Florida Rule of Criminal Procedure 3.800(a) or 3.850. We also adopt the committee's proposal to amend subdivision (b)(6)(B), which addresses the procedure in death penalty appeals, to require court reporters to file transcripts on computer disks in the appellate record in capital cases. Finally, we adopt the committee's proposal to delete existing subdivisions (i) ("Appeals from Summary Denial of Motion for Post-Conviction Relief Under Florida Rule of Criminal Procedure 3.800(a) or 3.850") and (j) ("Petitions Seeking Belated Appeal or Alleging Ineffective Assistance of Appellate Counsel") and to transfer their substance in large part to new rule 9.141 (discussed immediately below).

In rule 9.141 ("Review Proceedings in Collateral or Post-conviction Criminal Cases"), the committee proposes moving the subject matter of existing subdivisions 9.140(i) and (j) (discussed immediately above) to new rule 9.141 in order to separately address review proceedings in collateral or post-conviction criminal cases. We agree with the committee's observation that "[r]ule 9.140 was becoming too lengthy, and the collateral/post-conviction area was one that should be given its own rule," and accordingly adopt most of rule 9.141 as proposed by the committee.

However, we are concerned that proposed subdivision (a) ("Death Penalty Cases") may cause confusion insofar as it provides that "[t]his rule does not apply to cases in which the death penalty was imposed." We change this language to read that "[t]his rule does not apply to death penalty cases" in order to make clear that, once in effect, rule 9.141 will apply to cases in which the death sentence "was imposed" but then reduced to life imprisonment on direct appeal in this Court. See McCray v. State, 699 So.2d 1366 (Fla.1997)

(recognizing that, where death sentence had been reduced to life imprisonment on direct appeal in this Court, predecessor rule 9.140(j)(3)(B) applied to petition alleging ineffective assistance of appellate counsel, but denying petition under doctrine of laches). Thus, in such cases, under proposed subdivision (c)(4)(B), "[a] petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel." Accord McCray. We further make clear that, in cases in which this Court on direct appeal reduces a death sentence to life imprisonment, petitions alleging ineffective assistance of appellate counsel shall be filed in this Court. As set forth in proposed subdivision (c)(2), "[p]etitions ... alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was or should have been taken."²

In rule 9.210 ("Briefs"), we decline to adopt the committee's proposal to amend subdivision (a)(2) to provide that "[t]yped matter that is not proportionally spaced shall be in 12 point or larger type and shall not exceed 10 characters per inch (10 pitch) and 27 lines per page; typed matter that is proportionally spaced shall be in 13 point or larger Times Roman, Times New Roman, CG Times, or similar type and shall not exceed 23 lines per page." We instead require that computer-generated briefs shall be submitted in either Times New Roman 14-point font or Courier New 12-point font.³ We also sua sponte add the requirement that in computer-generated briefs, immediately following the certificate of service, counsel (or the party if unrepresented) shall sign a certificate...