Florida Rules of Appellate Procedure, In re, No. 50409-A

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; ENGLAND; BOYD; BOYD
Citation374 So.2d 992
Docket NumberNo. 50409-A
Decision Date20 September 1979
PartiesIn re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, FLORIDA RULES OF APPELLATE PROCEDURE.

Page 992

374 So.2d 992
In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, FLORIDA RULES OF APPELLATE PROCEDURE.
No. 50409-A.
Supreme Court of Florida.
Sept. 20, 1979.

PER CURIAM.

Appended to this opinion is a new appellate rule designated as Florida Rule of Appellate Procedure 9.331 entitled "Determination of Causes by a District Court of Appeal En Banc."

The Florida Appellate Structure Commission recommended that this Court adopt a new appellate rule authorizing the district courts of appeal to sit en banc to resolve intradistrict conflicts of decisions or to consider cases of exceptional importance and included a proposed rule for adoption in its report.

The Court has modified the en banc rule proposed by the Commission to limit its application to resolve intradistrict conflicts.

Page 993

The justification for an en banc rule was set forth by the Appellate Structure Commission in its report as follows:

The purpose of the proposed recommendation is to provide a formal procedural mechanism to permit the district courts to settle conflicts of decisions arising within the same district and to speak with one voice as a court on matters of exceptional importance.

Presently the district courts hold ad hoc conferences to discuss problems of conflicts between panels and to determine whether a panel should recede from a prior written opinion of the court. This proposal will formalize that process and provide a method for securing the input of counsel to resolve cases worthy of en banc determination. Although conflicts of decisions in cases decided by the same district court do not often arise, this recommendation will serve the dual purpose of reducing the Supreme Court's work load and furthering the goal of making the district courts the courts of last resort in most instances.

The Commission has carefully studied a possible constitutional infirmity in the en banc rule. Article V, section 4(a), Florida Constitution, provides: "Three judges shall be necessary to a decision." This provision might be construed to mean that district courts cannot constitutionally sit in panels larger than three judges. The Commission's studied opinion, however, is that such a rigid construction of article V, section 4(a), is neither required, nor is it the most reasonable. A memorandum of law prepared in 1961 by Charles A. Carroll, former judge of the Third District Court of Appeal, addressed this very issue. Judge Carroll concluded that this constitutional provision sets only a minimum standard and does not prohibit en banc review by district courts of appeal. Notably, a similar construction of a federal statute was necessary to permit federal circuit courts to hear cases en banc.

We agree that an en banc rule for the district courts would be beneficial to the appellate structure of this state. To ensure the propriety and clarity of the new rule and to provide all interested parties with an opportunity to present their objections or suggestions before this rule becomes effective, we invite interested persons to submit to the Court not later than November 1, 1979, any comments concerning the rule or the commentary. Any proposal for change in the rule should contain the precise language which the proponent would have the Court add, delete, or change.

Absent any modification by the Court before January 1, 1980, this rule shall take effect at 12:01 a. m., January 1, 1980.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

APPENDIX

RULE 9.331

DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC

(a) EN BANC MATTERS: GENERALLY. A majority of a district court of appeal may order that an appeal or other proceeding pending before the court be heard or reheard en banc. A district court of appeal en banc shall consist of the judges in regular active service on such court. En banc hearings and rehearings are not favored and ordinarily will not be ordered except when such consideration is necessary to maintain uniformity in the court's decisions.

(b) HEARINGS EN BANC: A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing, and a motion seeking such a hearing will be stricken.

(c) REHEARINGS EN BANC. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule...

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13 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2006
    ...to proceed en banc on the ground of the maintenance of uniformity in the court's decisions, In re: Fla. Rules of Appellate Procedure, 374 So.2d 992 (Fla.1979), and, in 1985, they were given the power of en banc review on the basis of exceptional importance. The Fla. Bar re: Rules of Appella......
  • Carroll v. State, No. 82-2565
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 1985
    ...provision " 'sets only a minimum standard and does not prohibit en banc review by district courts of appeal,' " In re Rule 9.331, 374 So.2d 992, 993 (Fla.1979) (quoting the Appellate Structure Commission's Report), modified on other grounds, 377 So.2d 700 (Fla.1979), 416 So.2d 1127 (Fla.198......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • August 23, 2019
    ...Commission, the supreme court devised a rule permitting cases to be decided en banc. In re Florida Rules of Appellate Procedure, 374 So. 2d 992 (Fla. 1979) ; see also Fla. R. App. P. 9.331. At the time, the court acknowledged that the new procedure arguably was at odds with the constitution......
  • Marr v. State, No. AU-499
    • United States
    • Court of Appeal of Florida (US)
    • January 29, 1985
    ...for an en banc proceeding was "to maintain uniformity in the court's decisions." In re Rule 9.331, Florida Rules of Appellate Procedure, 374 So.2d 992, 993 (Fla.1979). The exceptional importance standard was added by the supreme court's amendment to the rule, effective January 1, 1985. The ......
  • Request a trial to view additional results
13 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2006
    ...to proceed en banc on the ground of the maintenance of uniformity in the court's decisions, In re: Fla. Rules of Appellate Procedure, 374 So.2d 992 (Fla.1979), and, in 1985, they were given the power of en banc review on the basis of exceptional importance. The Fla. Bar re: Rules of Appella......
  • Carroll v. State, No. 82-2565
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 1985
    ...provision " 'sets only a minimum standard and does not prohibit en banc review by district courts of appeal,' " In re Rule 9.331, 374 So.2d 992, 993 (Fla.1979) (quoting the Appellate Structure Commission's Report), modified on other grounds, 377 So.2d 700 (Fla.1979), 416 So.2d 1127 (Fla.198......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • August 23, 2019
    ...Commission, the supreme court devised a rule permitting cases to be decided en banc. In re Florida Rules of Appellate Procedure, 374 So. 2d 992 (Fla. 1979) ; see also Fla. R. App. P. 9.331. At the time, the court acknowledged that the new procedure arguably was at odds with the constitution......
  • Marr v. State, No. AU-499
    • United States
    • Court of Appeal of Florida (US)
    • January 29, 1985
    ...for an en banc proceeding was "to maintain uniformity in the court's decisions." In re Rule 9.331, Florida Rules of Appellate Procedure, 374 So.2d 992, 993 (Fla.1979). The exceptional importance standard was added by the supreme court's amendment to the rule, effective January 1, 1985. The ......
  • Request a trial to view additional results

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