4th District Shortens Allowable Extensions for Reply Briefs and Criminal Appeals

The Fourth District Court of Appeal has shortened the allowable time period for agreed extensions of time: Effective May 1, 2018, parties will only be allowed to agree to 90 days for an initial or answer brief, and 15 days for a reply brief. The Court has also shortened the agreed extension period for criminal appeals significantly, once again applying the same standards to criminal and state appeals.

The new order, AO 2018-1 [.pdf], keeps the amount of time of an agreed extension for the initial brief at 90 days (which in 2016 came down from the original 120 days), but shortens the reply brief stipulation time from 30 days to 15. See AO 2016-1 [.pdf]. When the Fourth District first allowed agreed enlargements in 2011, the time periods were much larger: 120 days for initial or answer, and 60 days for reply. In 2016, the Court changed the rules to keep the 120/60 for criminal, but shorten it to 90/30 for civil. The new Order applies to both civil and criminal cases, and once again aligns the timing for both. Now, however, the time for a reply brief is even shorter, and the rule is 90/15 for all.

Be on the lookout, as we will soon be offering our readers a handy download to keep all of the different rules straight!

Fifth District Changes Procedures for Extensions of Time

The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

Appeals 101: How do I initiate my Florida civil appeal?

The Second District Court of Appeals’ Clerk’s Office is in Lakeland, FL. But you don’t have to visit — you can file your filing fee by mail or online!

Timing of Your Notice of Appeal

In a standard civil case in Florida, one initiates an appeal by (1) filing a notice of appeal and (2) paying the filing fee.  This applies to appeals from both final (see Fla. R. App. P. 9.110) and non-final (see Fla. R. App. P. 9.130(b)) orders.  You have 30 days from the date your ordered is rendered to file your notice (stay tuned for an upcoming Appeals 101 post on what “rendered” means for appellate purposes).

Format of Your Notice of Appeal

The notice is a simple document — it does not contain argument, and it does not have to tell the court why you are appealing. Rather, it contains only basic contents — just enough to let the Court know what you are appealing and by what authority. Specifically, the notice must contain a caption, the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. It is also critical to attach a copy of the order on appeal to the notice. The rules actually contain a sample notice to follow [.pdf].

Filing and Fees for Your Notice of Appeal

So how, and where, do you accomplish these filings?  You go to the court that issued the order you want to appeal (sometimes referred to as the “trial court” or the “lower tribunal”).  That is where you will file your notice of appeal.  As far as fees, you’ll have to pay a fee both to that court, and to the appellate court.  These days, both your notice of appeal and your filing fees to the courts can be paid online.

An example:  You are appealing to the district court of appeal a final order of the circuit court.  You must file your notice of appeal with the circuit court clerk, along with a $100 filing fee.  You may also have to pay other small handling fees, such as a $2 “certification” fee, or credit card fees.  Your notice of appeal will be sent to the district court of appeal.  Upon receipt of the notice, the district court will assign your case a new number, and will often issue an order or notice stating that its filing fee has not been paid.  You then must pay the district court an additional $300. Note that this procedure doesn’t really match up with the rules — before electronic filing, you were supposed to send your check to the circuit court clerk for both filing fees, but the rules haven’t caught up with technology, and the District Court does not take issue with you paying your filing fees after it assigns a case number, so long as you do it quickly. At that point, your appeal is fully initiated.

Filing a Notice of Appeal of a County Court Decision

The process is generally the same for appealing county court orders to the circuit courts, although the amounts of the fees vary slightly.

Filing a Notice of Cross-Appeal

And if someone else has filed a notice of appeal already and you want to file a cross-appeal, you’ll have to pay the appellate court $295.

For more information, look to the rules for final appeals and non-final appeals, and check out some of our other blog posts at flabarappellate.org.

What Happens if My Notice of Appeal is Late?

Be careful, because failing to file the notice of appeal on time will result in dismissal of your appeal for lack of jurisdiction.  A late notice of appeal is not something that can be fixed.  And while the courts are somewhat forgiving if you merely file in the wrong court or don’t pay the filing fee right away, they can still dismiss your appeal before you even get a chance to argue the merits if you don’t straighten out those defects fast.

Don’t Mess Around With Your Notice of Appeal

The rules of appellate procedure can be complicated and intimidating, but we’re here to help. Because the 30 day deadline comes fast, call our office for a consultation at 813-778-5161 if you are thinking of filing an appeal. Day 31 is too late. Count wrong, and it can be too late. Misunderstand rendition, and it can be too late. In fact, because understanding rendition can be tricky — and because your appeal can sometimes be stronger if you file a timely and authorized motion for rehearing, which has a shorter deadline — we recommend you contact appellate counsel within a day or two of learning of the order you want to appeal.

About Appeals 101

This post is part of our continuing Appeals 101 series. Click the link to find all of our posts on the basics of litigating an appeal.