Florida Criminal Appeals
You Can't Afford to Lose Your Florida Criminal Appeal!
In federal court, whether you won or lost your trial, there is a lot to consider if you are deciding whether to pursue an appeal in Florida. First, you have to ascertain whether you can actually appeal.
So let’s talk about that.
Can You Appeal?
In Florida criminal cases, only certain matters can be appealed.
According to Rule 9.140(b)(1) of the Florida Rules of Appellate Procedure, a defendant can appeal:
1. A final judgment adjudicating guilt;
2. A final order withholding adjudication after a finding of guilt;
3. An order granting probation or community control, or both, whether or not guilt has been adjudicated;
4. Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.850, 3.851, or 3.853;
5. An unlawful or illegal sentence;
6. A sentence, if the appeal is required or permitted by general law; or
7. As otherwise provided by general law.
If you entered a plea, your ability to appeal is even more circumscribed.
Florida Rule of Appellate Procedure 9.140(b)(2) provides that a “defendant may not appeal from a guilty or nolo contendere plea except” in certain circumstances.
“Reservation of the Right to Appeal” -
Florida Rule of Appellate Procedure 9.140(b)(2)(i)
The first scenario giving rise to a permissible appeal from a guilty / nolo contendere plea involves a “reservation” of the right to appeal.
Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(i), a “defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”
The rule seems clear enough, but the case law suggests otherwise.
For instance, as a general rule, an issue is “dispositive” if there will be no trial. M.Z. v. State, 747 So. 2d 978 (Fla. 1st DCA 1999). But there is an enormous body of case law on the meaning of “dispositive” and how, exactly, a defendant can “expressly reserve” appellate rights.
Both terms are slippery and can be very fact-dependent. Even if your plea agreement “expressly reserve[s]” the right to appeal a “dispositive” issue, do not feel confident you can actually do so until you consult an experienced appellate practitioner.
“Appeals Otherwise Allowed” -
Florida Rule of Appellate Procedure 9.140(b)(2)(ii)
Florida Rule of Appellate Procedure 9.140(b)(2)(ii) establishes the very limited circumstances a criminal defendant can appeal after entering a plea if the defendant has not reserved the right to appeal a certain issue.
Absent a reservation of the right to appeal, “a defendant who pleads guilty or nolo contendere may otherwise directly appeal only”
The lower tribunal's lack of subject matter jurisdiction;
A violation of the plea agreement, if preserved by a motion to withdraw plea;
An involuntary plea, if preserved by a motion to withdraw plea;
A sentencing error, if preserved; or
As otherwise provided by law.
How Long Do You Have To Appeal In Florida?
If the appellate rules permit an appeal in your circumstances, Rule 9.140(b)(3) of the Florida Rules of Appellate Procedure establishes that you have 30 days to file your Notice of Appeal in a Florida criminal case.
The Notice of Appeal must be in the form “prescribed by rule 9.110(d)” and filed with the clerk of the lower tribunal “at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence.” Fla. R. App. P. 9.140(b)(3).
“Rendition” is an important term (in all Florida appeals, not just criminal appeals). It is defined in Florida Rule of Appellate Procedure 9.020(i).
The catch with “rendition” is that certain motions filed after entry of an order/judgment/sentence postpone rendition, while others do not.
Knowing Your Timeframe to Appeal is Crucial
A common pitfall arises when trial attorneys think a certain motion postpones “rendition,” when, in fact, it does not.
The consequence of this mistake is that while the post-trial motion is pending, the 30-day clock is ticking away.
If it takes the trial court more than 30 days to resolve the post-trial motion (it usually does), a defendant can find the time has run out for filing a Notice of Appeal.
The Notice of Appeal must be filed, at the very latest, within 30 days of sentencing.
The good news is very little is required to complete a Notice of Appeal.
The bad news is that if you miss the deadline, the consequences are harsh in Florida.
As a result, if you think you have an appealable issue, consult an appellate attorney as quickly as possible.
What If There Was An Error In The Trial Court Proceedings?
If there was an error in your trial court proceedings, it does not necessarily mean that you will obtain relief on appeal.
Even if an error was made in the trial court, two concepts are critical to understand in evaluating the likelihood of success on appeal in a criminal case.
- Preservation of Error – if an error was made in the trial court proceedings, it needs to have been “preserved.” That means the error must have been brought to the trial court’s attention, or else it is considered waived or forfeited, and except in the rarest of circumstances, an appellate court will not provide relief for an unpreserved error. Here are 3 quick “preservation of error” concepts important to bear in mind in criminal appeals:
- Any argument raised on appeal must have been preserved in the proceedings below, unless it rises to the level of “fundamental error.” To constitute fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So. 2d 481, 484 (Fla. 1960).
Whether an error is fundamental is a highly fact-specific inquiry, and the definitions vary depending on context.
- To preserve an issue for appellate review, the specific legal argument must be presented to the trial court. For an objection to preserve an argument for appeal, it must be made contemporaneously and specifically. This is another highly fact-specific inquiry that depends on context.
- Sentencing errors are not reviewable on direct appeal unless they are preserved in the trial court, either by a timely objection at sentencing or by a timely filed 3.800 motion. See Brannon v. State, 850 So. 2d 452 (Fla. 2003). A motion to correct a sentence can be made either prior to an appeal, see rule 3.800(b)(1), or during an appeal, see rule 3.800(b)(2).
If filed during an appeal, the motion must be served before the party’s first brief is served, and notice of the pending motion must be filed with the appellate court. Appellate counsel’s failure to preserve a sentencing error by neglecting to file a 3.800(b)(2) motion with the trial court constitutes ineffective assistance of counsel. Hernandez v. State, 137 So. 3d 542 (Fla. 4th DCA 2014).
- Harmless Error: To win any appeal in Florida, you must be able to establish the error you are complaining about made a difference. In criminal cases, the defendant has the initial burden of showing error; the burden then shifts to the State to show beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).
Filing an appeal in Florida requires the skill and knowledge of a professional appeals attorney who knows and understands the entire appeal process.
Contact The Brownlee Law Firm
 An issue is “dispositive” if there will be no trial. M.Z. v. State, 747 So. 2d 978 (Fla. 1st DCA 1999). Be careful here though - there is an enormous body of case law on what constitutes “dispositive” and how you “expressly reserve” appellate rights. These terms are slippery and can be very fact-dependent.