Florida Appellate Law and the Appeals Process
Frequently Asked Questions (FAQs) from The Law Offices of Robin Bresky
While many website visitors researching appellate law and the appeals process have an understanding of the terms, laws, and guidelines involved in the appeal process, we realize that some visitors to this site may have some questions. Here we will answer some of the common questions about appeals and appellate law. If you have other questions, feel free to contact our law firm at 561-994-6273, or use the contact form on our Contact page.
We also provide you with video clips that Appellate and Litigation Support Attorney Robin Bresky has created to answer questions on appellate law, trial support services, summary judgments, motions to dismiss, writs of certiorari, writs of prohibition and interlocutory and administrative appeals and more.
Note that the party who files an appeal is called an appellant or petitioner, and a party on the other side is called appellee or respondent. The appellant can be the plaintiff or defendant from the original case, depending on who is challenging the ruling of the court.
1. What is the basic concept of an appeal?
After an opinion is rendered in a civil or criminal case by a lower tribunal, any party who disagrees with the ruling has the right to have the decision reviewed by a higher court. This process is known as the appeals process or appellate process, and typically requires the services of an appellate attorney. Your right to an appeal is both a U.S. Constitutional right and a Florida Constitutional right.
2. What is the first step in the appeals process?
The first step in the process is the filing of a “notice of appeal.” This is the document a person must file with the trial court in order to initiate and pursue an appeal.
3. How long do you have to file an appeal after a court decision is announced?
Typically, you have 30 days, but your lawyer will verify this for you.
4. How long is the time period between filing the appeal and obtaining a decision from the appellate court?
The process can be lengthy. Transcripts of the original hearings or trial must be prepared. All sides prepare and submit briefs and responses to briefs. Once all the information for the appeal is prepared, it is assigned to a panel of three judges for review and consideration. There may also be an oral argument before the panel issues a decision, and there may be post-decision motions such as a motion for rehearing.
5. What are the requirements for appealing a decision or how do you know if you can appeal?
To determine eligibility for appeal, first you must consider whether you are a party who can appeal, which an appellate attorney can verify. Next, the court must have made a judgment, an appealable order, or an order after judgment that is appealable. Third, you must have the paperwork to substantiate the judgment. There must have been an error of law, fact, or procedure in your trial. Your attorney can advise you on whether you meet the requirements for filing an appeal.
6. Who can render an appealable decision?
Any lower tribunal, including trial courts and administrative agencies, can have their decision appealed.
7. Will oral arguments for my case be presented before the judges, or will they only consider written documents?
Oral arguments are not always presented in an appeal. The court or judge schedules oral argument only if one of the parties made a timely request and the court agrees that this oral argument could be helpful in their decision, or if the judges feel that they need to hear oral argument. The court will review the appellant’s brief and the appellee’s brief created by the attorneys for both the appellee and the appellant. The brief establishes the legal arguments and explains why the appellate court should affirm or reverse the lower court’s judgment. The appellate briefs are typically created by appellate attorneys, whose area of practice is appeals.
8. What decisions can the panel of appellate judges make or what options do they have?
- The appeals court may AFFIRM the lower court’s order (meaning that the decision of the lower court will stand).
- If the appellate court finds that the decision of the lower court was erroneous, it will either REVERSE the lower court decision or REVERSE AND REMAND to the lower court decision for further proceedings.
In some cases, the appellate judges may rule that the mistake was a harmless error – that it did not affect the outcome of the case or would not have made a difference legally. With harmless error like this, the original decision still stands.
9. Can the appellate court turn down an appeal?
Yes, an appellate court can dismiss an appeal if it’s a non-appealable order, which your appellate attorney can verify. The highest appellate courts have the broad discretion to decide which cases they want to accept, such as the Florida Supreme Court. There are only a few types of orders from which the Florida Supreme Court must accept review.
10. If you disagree with the decision of the appeals panel, do you have any recourse?
In limited situations, you can move for rehearing by the appellate panel, and in even more-limited circumstances you can move for rehearing en banc (by all the judges of that court). In rare cases with very specific criteria, you can appeal to the highest court possible – the Florida Supreme Court or the Supreme Court of the United States. Your appellate lawyer can advise you on this matter.
11. What is the appellate court structure in Florida?
In Florida, all appellate proceedings are governed by the Florida Rules of Appellate Procedure. Florida’s court system has three tiers, two of which are appellate. The county courts and circuit courts are the trial-level courts in which actions are filed, and the circuit courts also have some appellate authority (final orders of county courts and administrative actions sometimes are appealable to the circuit courts). However, circuit trial courts (sitting in their appellate capacity) have jurisdiction of appeals from county courts (except appeals of county court orders or judgments declaring invalid a state statute or a provision of the State Constitution, and except orders or judgments of a county court which are certified by the county court to the district court of appeal to be of great public importance and which are accepted by the district court of appeal for review).
District courts of appeal have appellate jurisdiction in standard cases. There are five district courts of appeal. They are in Tallahassee (First District Court of Appeal), Lakeland (Second District Court of Appeal), Miami (Third District Court of Appeal), West Palm Beach (Forth District Court of Appeal) and Daytona Beach (Fifth District Court of Appeal). The Florida Supreme Court (in Tallahassee) is the highest court for important decisions on Florida law. It reviews the decisions of the district courts of appeal. In limited circumstances, the Florida Supreme Court may review the final order of a trial court directly, such as via “pass-through jurisdiction.”
12. Is there more than one type of appeal?
Many jurisdictions recognize two types of appeals, particularly in the criminal context. There is the traditional “direct” appeal in which the appellant files an appeal with the next higher court of review.
The other is the collateral appeal (or post-conviction petition), in which the appellant files the “appeal” or motion in a court of first instance – usually the court that tried the case.
The main distinguishing factor between direct and collateral appeals is that the former only reviews evidence that was presented in the trial court, but the latter allows review of additional evidence such as depositions, affidavits, and witness statements that were not present in the trial. The standard for post-conviction relief is quite high and requires the appellant to demonstrate that the new evidence being presented wasn’t available during the normal period of trial discovery.
13. Do I have to have an attorney to appeal my case?
An appellant can represent him or herself in an appeal and present their arguments pro se (without legal representation). This is unusual, however, and not advised.
14. What is an Appellate Lawyer?
Just as trial lawyers focus in trial law, appellate lawyers focus on appellate law. They are knowledgeable in the appeals process and skilled in researching and writing effective appellate briefs. Whereas trial lawyers are typically effective in weaving facts of the case together into a persuasive story to present to a trial judge and jury, an appellate lawyer is effective at dealing with the facts and the law and concisely explaining why the appellate court judges should or should not affirm the circuit court’s decision, based on legal precedent.
15. Where is the Fourth District Court of Appeal and what do I need to know about it?
The Fourth District Court of Appeal is located in West Palm Beach, Florida (address, phone and website below) and handles appeals from Palm Beach County, Broward County, St. Lucie County, Martin County, Indian River County, and Okeechobee County. Court hours are Monday through Friday from 8 AM to 4 PM excluding holidays. The Rules of Appellate Procedure can be found on their website, on the left side column of the home page. There are a total of 12 Fourth District judges and their biographies can be viewed on the website as well.
The Fourth District Court of Appeal is located at:
1525 Palm Beach Lakes Blvd.
West Palm Beach, FL 33401-2399
Telephone: (561) 242-2000
Note that the Third District Court of Appeal is located in Miami, Florida. Their website address is: www.3dca.flcourts.org