Appellate standards of review.

• Author: Sepler, Harvey J.
• Position: Florida

Since 2000, when Florida Rule of Appellate Procedure 9.210(5)(b) was amended, all briefs filed in Florida appellate courts must include explicit reference to the standard of review applicable to each issue raised in the appeal. And, while the rule is directed to appellate courts, practitioners at the trial level would be wise to couch their arguments, and their presentation of evidence, around the standards that guide trial judges in their decisions and, at the same time, establish records for use in the appellate courts.

There are three main standards of appellate review that practitioners will confront: de novo, abuse of discretion, and competent substantial evidence. (There are, of course, others--such as the clear and convincing evidence and manifest weight of the evidence standards (1)--but they are less common and more case-specific).

These three main standards can conceptually be broken down to decisions of law and decisions of fact. Thus, when the appellate court is asked to interpret a statute or contract, for example, and there are no factual resolutions that must be made, the reviewing court is essentially in the same position as was the trial court and the standard of review is de novo. On the other hand, where the matter is fact-specific--where it entails resolving conflicting facts or determining the factual sufficiency in a case--the appellate court will often defer to the trial court for such determinations and the standard of review is whether the record contains competent substantial evidence to support the order under review. Finally, when the challenged action is one that is ordinarily left to trial court discretion--such as the admission of evidence or the administration of trial --the standard is whether the lower tribunal abused that discretion.

De novo review, or "free review," (2) means that "although the trial court is presumed to be correct, the appellate court is free to decide the legal issue differently without paying deference to the trial court's review of the law." (3) In these purely legal matters, the appellate court stands on the same footing as the trial court. Examples of decisions of pure law in which the appellate court applies the de novo standard include reviewing orders dismissing a complaint, (4) entering summary judgment, directed verdict or judgment of acquittal, (5) interpreting a statute or contract, (6) suppressing evidence (legal matters only) (7) and determining whether a criminal sentence...