Florida state and federal appellate rules: distinctions with a difference.

AuthorBurns, Thomas A.

While the Florida and federal appellate rules are in many respects similar, in other ways they are quite different. This article briefly highlights some important distinctions between the state appellate rules applicable to civil appeals of final orders in the Florida district courts of appeal, and the federal appellate rules applicable to civil appeals of final judgments in the 11th Circuit. (1)

Notice of Appeal At the outset, lawyers must understand that the deadline for filing a notice of appeal is jurisdictional--subject to a narrow exception in federal court only. In both state and federal court, unless the government is a party, the notice of appeal must be filed within 30 days of the rendition or entry of a final order. (2)

State appellate courts strictly enforce this 30-day jurisdictional deadline. Absent facts indicating "a party's ability to file a notice of appeal in a timely manner was stymied or hindered by action attributable to the trial court or the clerk," state appellate courts have no discretion to grant any good cause or excusable neglect exceptions to extend the 30-day window. (3)

Although the federal rules provide an exception to the default rule that allows for the district court either 1) to extend the 30-day deadline by motion, (4) or 2) to reopen the 30-day deadline by motion, (5) prudent practitioners should not depend on these exceptions. Compliance with the 30-day window is strongly advised in all appeals.

In state court, the notice of appeal is filed with the circuit court clerk, along with the appropriate filing fee, and with a copy of the final order attached. (6) In federal court, the notice is filed with the district court clerk, along with the appropriate filing fee, but it must merely "designate" rather than attach the judgment or order being appealed. (7)

Final Orders and Final Decisions

On a related note, it is also important that the lawyer understand when an order is "final" for state appellate purposes, (8) and what "final decisions" may be appealed in federal court. (9)

Under Florida law, an order is "final" for purposes of appeal "when it adjudicates the merits of the cause and disposes of the action ... leaving no judicial labor to be done except the execution of the judgment." (10) An order is not final and appealable, moreover, unless it "include[s] specific "language of finality.'" (11) For instance, an order dismissing a complaint "with prejudice" that does not "actually dismiss the action" is not final for appellate purposes. (12) But a written order that uses magic words--such as "plaintiff take nothing by the suit and go hence without day"--is final, because the additional language "lends the necessary unequivocal declaration of finality that will support an appeal." (13) A written order that "does not contemplate any further judicial labor with regard to the rights of the parties"--such as "Final Summary Judgment is hereby entered"--need not employ such special words to be sufficiently final for appeal. (14)

In the 11th Circuit, a decision is final and appealable so long as it effectively "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" (15) There is more flexibility in federal court, however, when it comes to the language of the order. When, for example, a federal district court enters a written order granting summary judgment or dismissing a complaint--but does not enter a judgment because it retains jurisdiction over some "ministerial" task--the order is still final and appealable "even though it might appear that the district court still has something left to do that goes beyond executing the judgment." (16)

The Appellate Record

With respect to records on appeal, the lawyer is tasked with different responsibilities in assuring the record is prepared in the Florida district courts of appeal rather than his or her counterpart in the 11th Circuit.

In the Florida appellate courts, within 50 days of filing the notice of appeal, the circuit court clerk will automatically prepare the record. (17) The "automatic" record...

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