Monthly Archives: March 2015

New Amendments to Florida Rules of Appellate Procedure 9.210

It has been a longstanding practice of the Florida Supreme Court to allow appellate briefs filed in cases relating to imposition of death penalty to exceed the standard page limits.  See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015).  This practice, however, has been implemented on a case by case basis.  Id.  The Florida Supreme Court today has amended Fla. R. App. P. 9.210 and reduced its practice to code. Id.

It is now set forth in the Florida Rules of Appellate Procedure that longer appellate briefs in cases relating to imposition of the death penalty are permitted. Id.  The Florida Supreme Court new subdivision (a)(6) specifically states:

(6) In an appeal from a judgment of conviction imposing a sentence of death or in an appeal from an order ruling on, after an evidentiary hearing, an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, the initial and answer briefs shall not exceed 100 pages in length, provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 150 pages. Reply briefs shall not exceed 35 pages in length, provided that if a cross-appeal has been filed, the reply brief shall not exceed 100 pages, not more than 35 of which shall be devoted to argument replying to the answer portion of the appellee/cross-appellant’s brief. Cross-reply briefs shall not exceed 35 pages. In an appeal from an order summarily denying an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, ruling on a successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851, finding that a defendant is intellectually disabled as a bar to execution under Florida Rule of Criminal Procedure 3.203, or ruling on a motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.853, the initial and answer briefs shall not exceed 75 pages in length. Reply briefs shall not exceed 25 pages in length. The tables of contents and citations, the certificates of service and compliance, and the signature block for the brief’s author, shall be excluded from the computation. Longer briefs may be permitted by the court.

See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015).

You Are Denied Your Motion to Intervene – When Should You Appeal?

According to the Third District Court of Appeal, a party who is not named in the action and whose motion to intervene is denied do not have the right to appeal the final judgment . See Quinones v. Southeastern Investment Group Corp., 39 Fla. L. Weekly D909a (Fla. 3d DCA 2014).  Rather, the order denying the motion to intervene is considered the final determination of the proceedings with regards to that party. Id.  As a result, that party has the right to appeal the order denying the motion to intervene within 30 days of rendition of that order.  Id.  Waiting until rendition of the final judgment in that case will result in your appeal being dismissed due to lack of standing. Id.

An Attorney’s Unsworn Statements Of Fact Are Not Evidence

A key point every attorney should remember is that an attorney’s unsworn statements of fact do not establish a fact.  See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982); Arnold v. Arnold, 889 So. 2d 215 (Fla. 2d DCA 2004); H.K. Development, LLC v. Greer, 32 So. 3d 178 n 4 (Fla. 1st DCA 2010).  It is not evidence. See Smith v. Smith, 64 So. 3d 169 (Fla. 4th DCA 2011)(“As we have explained, we reject the use of unsworn assertions made by attorneys as evidence.”).  A trial court “cannot rely upon these unsworn statements of fact as the basis for the trial court’s factual determinations… [ and the appellate court] cannot so consider them on review of the record.” See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982).

For instance, in Brown v. School Bd. of Palm Beach County, 855 So. 2d 1267 (Fla. 4th DCA 2003), the trial court erred by relying on the unsworn statements of counsel in makings its decision and thus, the appellate court reversed the trial court’s decision and remanded for further proceedings.  In order to establish a fact, the attorney should provide sworn testimony through a witness or a stipulation to which his opponent agrees.  See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982); Brown, 855 So. 2d at 1269-1270.