AMEND. TO FLA. RULES OF APPELLATE PROC.

• Decision Date: 26 December 1996
• Docket Number: No. 87134,86881.,87134
• Parties: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE.
• Court: Florida Supreme Court

696 So.2d 1103

AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE.

Nos. 87134, 86881.

Supreme Court of Florida.

November 22, 1996.

As Corrected on Denial of Rehearing December 26, 1996.

John W. Frost, II, President, Bartow; Edward R. Blumberg, President-elect, Miami; and John F. Harkness, Jr., Executive Director, Tallahassee, on behalf of The Florida Bar; Michael P. Walsh, West Palm Beach, on behalf of the Board of Governors of The Florida Bar; and Honorable Marguerite H. Davis, Chair, and Thomas D. Hall, Tallahassee, on behalf of the Appellate Court Rules Committee, for Petitioner.

Louis O. Frost, Jr., Public Defender, Jacksonville; Ward L. Metzger, Chair, Juvenile Court Rules Committee, Jacksonville; Robert A. Butterworth, Attorney General and James W. Rogers, Bureau Chief, Criminal Appeals, Office of the Attorney General, Tallahassee; Stephen Krosschell, Holiday; Deborah K. Brueckheimer, Chief, Appeals Division, Assistant Public Defender, Bartow; Nancy A. Daniels, Public Defender; and Paula S. Saunders and David A. Davis, Assistant Public Defenders, Tallahassee, on behalf of The Florida Public Defenders Association; Dedee S. Costello, Chair, The Florida Bar Criminal Procedure Rules Committee, Panama City; Henry P. Trawick, Jr., Sarasota; Anthony C. Musto, Chair, The Florida Bar Appellate Practice and Advocacy Section, Fort Lauderdale; Susan Hartmann, Sarasota, Florida; Robert L. Young of de Manio & Young, Sarasota; Honorable Gerald B. Cope, Jr., Judge, Third District Court of Appeal, Miami; William A. Haddad, Clerk, Second District Court of Appeal, Lakeland; and Charles A. Valcarce-Stuart, Coral Gables, Responding.

PER CURIAM.

We have for consideration The Florida Bar Appellate Rules Committee's (Committee) quadrennial report of proposed rule changes filed in accordance with Florida Rule of Judicial Administration 2.130(c)(3). We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution. We have consolidated the Committee's report with the file opened as a result of this Court's initiation of proposed rule amendments designed to simplify criminal appeals from guilty pleas and appeals relating to sentencing errors.

The Committee proposed a new rule 9.100(f), which imposes additional requirements on proceedings in the circuit court which seek to invoke the jurisdiction of the circuit court described in rules 9.030(c)(2) and (c)(3) to the extent that the petition seeks review of judicial or quasi-judicial action. We agree with the Committee that this amendment will clarify when Florida Rule of Civil Procedure 1.630 applies and when rule 9.100 applies in the circuit court.

On December 21, 1995, this Court issued an opinion suggesting that scarce resources were being unnecessarily expended in appeals from guilty pleas and appeals relating to sentencing errors. Amendments to Florida Rules of Appellate Procedure 9.020(g) & 9.140(b) & Florida Rule of Criminal Procedure 3.800, No. 86,881 (Fla. Dec. 21, 1995). On our own motion, we proposed amendments to rule 9.020(g) and rule 9.140(b), as well as Florida Rule of Criminal Procedure 3.800. These amendments were designed to limit the record and the issues which could be raised on appeals from pleas of guilty and nolo contendere without reservation and to require that sentencing issues first be raised in the trial court.

As a consequence of our opinion, the Committee revised its recommendations to address our proposed amendments. With certain minor exceptions, the Committee concurred with the Court's proposed amendments. However, the Committee proposed an additional provision which would provide a multi-faceted procedure in which a defendant could seek to have the trial court correct any sentencing error before it was considered by the appellate court by (1) raising the issue at the time of sentencing, (2) raising the issue by posttrial motion, or (3) raising the issue by "notice" in the appellate court, which would then send the issue to the trial court to rule on the issue first. The Committee gave several reasons for its proposal, including the concern that the requirement that all sentencing errors be raised in the trial court in order to be considered on appeal would result in a substantial increase in the number of claims of ineffective assistance of counsel for failing to preserve sentencing errors.

While these matters were under consideration, the legislature enacted the "Criminal Appeal Reform Act of 1996" (the Act), which became effective on July 1, 1996. Ch. 96-248, § 4, Laws of Fla. Because certain provisions of the Act appeared to conflict with the current appellate rules, this Court requested and received comments from interested parties concerning the effect of the Act upon the rules and the proposed amendments.

Our attention has become focused upon those portions of the Act which created section 925.051, which provides in part as follows:

(3) An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

(4) If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.

In their comments, the Committee as well as public defenders and others contend that the provisions of the Act are procedural in nature and cannot override this Court's Rules of Appellate Procedure. On the other hand, the Attorney General insists that the Act's provisions are substantive and, therefore, controlling.

The United States Supreme Court has consistently pointed out that there is no federal constitutional right of criminal defendants to a direct appeal. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985) ("Almost a century ago the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors."). Accord Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Moreover, in State v. Creighton, 469 So.2d 735 (Fla.1985), this Court stated that there was no right to appeal set forth in our state's constitution. We reasoned that while our immediately preceding constitution provided that "appeals may be taken as a matter of right from all final judgments or decrees," the 1972 revision to article V eliminated the constitutional right to appeal by altering the language to authorize "appeals, that may be taken as a matter of right, from final judgments or orders."

However, the issue in Creighton was whether the State had a constitutional right to appeal. Furthermore, we did not consider in Creighton the fact that nowhere in the voluminous documents which reflect the history and intent of the 1972 revision of article V is there any suggestion that the revisers intended to remove from the constitution the right to appeal. Therefore, we now recede from Creighton to the extent that we construe the language of article V, section 4(b) as a constitutional protection of the right to appeal. However, we believe that the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants' legitimate appellate rights.¹ Of course, this Court continues to have jurisdiction over the practice and procedure relating to appeals.

Applying this rationale to the amendment of section 924.051(3), we believe the legislature could reasonably condition the right to appeal upon the preservation of a prejudicial error or the assertion of a fundamental error. Anticipating that we might reach such a conclusion, this Court on June 27, 1996, promulgated an emergency amendment designated as new Florida Rule of Criminal Procedure 3.800(b) to authorize the filing of a motion to correct a defendant's sentence within ten days. Amendments to Florida Rule of Appellate Procedure 9.020(g) & Florida Rule of Criminal Procedure 3.800, 675 So.2d 1374 (Fla.1996). Because many sentencing errors are not immediately apparent at sentencing, we felt that this rule would provide an avenue to preserve sentencing errors and thereby appeal them. However, since our adoption of the emergency amendment, a number of parties have expressed the view that the ten-day period is too short. They say that because of the copying process in the clerk's office or for other reasons, attorneys often do not timely receive copies of the sentencing orders. Others point out that as a result of the short time period, many public defenders are ordering expedited transcripts of the sentencing hearing at additional cost to the State. For these reasons, we have extended the time for filing motions to correct sentencing errors under rule 3.800(b) to thirty days.

The other issue immediately before us is the effect of the Act on the proposed rule on appeals from pleas of guilty or nolo contendere without reservation. In Robinson v. State, 373 So.2d 898 (Fla.1979), this Court addressed the validity of section 924.06(3), Florida Statutes (1977), which read:

A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such defendant shall obtain review by means of collateral attack.

The Court agreed that the statute properly foreclosed appeals from matters which took place before the defendant agreed to the judgment of conviction. However, the Court...