Recent Changes in the Appellate Rules and Administrative Orders

By: Carrie Ann Wozniak, Esq., and Heather M. Kolinsky, Esq.
OCBA Appellate Practice Committee

Florida Rule of Appellate Procedure 9.220 Changes Concerning Appendices

In October 2017, Florida Rule of Appellate Procedure 9.220 was amended to provide new requirements for filing appendices with briefs. Regardless of whether it is an original proceeding, or a non-final appeal, attorneys must now create an appendix that includes a cover page, an index, a certificate of service, and a fully text-searchable document. Each document must be bookmarked with a title and filing date as well.

The cover sheet must be properly captioned and identify the party on whose behalf the appendix is filed. The cover sheet must also include the title of the petition, brief, motion, response, or reply for which the appendix is served, and the name and address of the attorney filing the appendix. The entire document must be consecutively paginated, including the cover page. The index must reflect the page numbers of the documents based on the consecutive pagination. Also, condensed transcripts are not acceptable.

Having had some personal experience filing appendices since this rule was adopted, we can both attest that it isn’t always as easy as it seems. Thus far our experience has been that the District Courts of Appeal have been very strict in enforcing this rule. This means that your appendix often gets rejected the first time it is filed. In the Fourth District, the appendix may be accepted initially, then rejected upon further review. The court issues an order providing forty-eight (48) hours to file an amended appendix. A software glitch may also create problems: we have had the experience of filing an otherwise proper appendix and the court’s system stripping the bookmarks from the PDF. The best advice is to be patient, take your time constructing your appendix and refer to the rule while you are constructing it, and expect that it may be rejected at least once before it is accepted for filing.

The Fifth District Court of Appeal Shortens the Length of Available Extensions for Briefs

In its Third Amended Administrative Order AO5D13-02, the Fifth District Court of Appeal has shortened the available extension time for briefs in criminal and civil appeals to sixty (60) days for initial and answer briefs and thirty (30) days for reply briefs. Any extension within this amount of time in the cases the Administrative Order designates may be confirmed by filing a notice of extension of time by agreement with opposing counsel, in lieu of seeking an extension by motion. Any extension beyond sixty (60) days for initial and answer briefs and thirty (30) days for reply briefs, whether agreed upon or not, must be sought by motion to the court.

The Fifth District Court of Appeal Establishes Pilot Program for Remote Oral Arguments

Effective June 5, 2018, the Fifth District has implemented a pilot program for remote oral arguments to permit parties to present oral argument from the Marion County Courthouse, located at 110 NW 1st Avenue, Ocala, Florida. Administrative Order AO5D1801 sets forth the guidelines for the program and notes that the use of the remote oral argument location is not restricted to those appeals stemming from Marion County or the Fifth Circuit. Participation is optional, and either or both sides may appear remotely. Counsel not participating remotely will participate by personal attendance at the Fifth District Court of Appeal. Notably, if there is a technical issue, the oral argument will not be rescheduled, and counsel will instead participate in the oral argument by conference call.  

First District Court of Appeal Now Permits Agreed Notices of Extension of Time to File Briefs

In other news, the First District Court of Appeal has adopted an agreed-notice policy for extensions of time on filing briefs. Each of the District Courts of Appeal now accept an agreed notice in lieu of unopposed motions for extension of time, but be careful because each court allows for different amounts of time to file. For example, the First District Court of Appeal allows only fifteen (15) days’ extension for a reply brief. Also, this notice provision does not apply to certain types of appeals, but generally is permitted in civil and criminal final and non-final appeals. Be sure to check each District Court of Appeal’s Administrative Order when you are considering filing a notice in lieu of agreed motion.

Carrie Ann Wozniak, Esq., is a partner at Akerman LLP and is Board Certified by The Florida Bar in appellate practice. She has been a member of the OCBA since 2007. 

Heather M. Kolinsky, Esq., practices appellate law with the Law Office of Chad A. Barr, P.A. She has been a member of the OCBA since 2015. 

The Briefs, June 2018