FLORIDA RULES OF APPELLATE PROCEDURE
Rules reflect all changes through 942 So.2d 406. Subsequent amendments, if any, can be found at www.floridasupremecourt.org/decisions/rules.shtml.
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International Standard Book Number 1-4224-3617-9 The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 82007 by The Florida Bar. All rights reserved Published 2007 Printed in the United States of America 2275716 (Pub. No. 22757)
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES 1962 REVISION, effective 10-1-62: OTHER OPINIONS Effective 3-1-78: Effective 1-1-80: Effective 1-1-80: Effective 1-1-80: Effective 4-1-80: Effective 1-1-81: Effective 1-1-81: Effective 10-1-82: Effective 12-15-83: Effective 10-1-84; 1-1-85: Effective 3-1-85: Effective 3-19-87: Effective 7-1-87: Effective 1-1-89: Effective 1-1-89: Effective 7-9-92: Effective 1-1-93: Effective 12-5-94: Effective 6-15-95: Effective 10-12-95: Effective 1-1-96: Effective 7-1-96: Effective 8-29-96: Effective 1-1-97: Effective 7-1-99: Effective 11-12-99: Effective 1-1-00: Effective 1-1-01: Effective 10-18-01: Effective 1-1-03: Effective 1-1-03: Effective 10-23-03: Effective 1-1-04: Effective 10-1-04: Effective 10-1-04: Effective 2-3-05: Effective 4-7-05: Effective 6-30-05: Effective 1-19-06: Effective 7-6-06: Effective 11-9-06: Effective 1-1-07: 351 So.2d 981. 374 So.2d 992. 376 So.2d 844. 377 So.2d 700. 381 So.2d 1370. 387 So.2d 920. 391 So.2d 203. 416 So.2d 1127. 443 So.2d 972. 463 So.2d 1114. 463 So.2d 1124. 505 So.2d 1087. 509 So.2d 276. 529 So.2d 687. 536 So.2d 240. 605 So.2d 850. 609 So.2d 516. 646 So.2d 730. 657 So.2d 897. 661 So.2d 815. 663 So.2d 1314. 675 So.2d 1374. 678 So.2d 315. 685 So.2d 773. 756 So.2d 27. 761 So.2d 1015. 760 So.2d 74. 780 So.2d 834. 807 So.2d 633. 827 So.2d 888. 837 So.2d 911. 858 So.2d 1013. 860 So.2d 394. 875 So.2d 563. 887 So.2d 1090. 894 So.2d 202. 901 So.2d 109. 907 So.2d 1161. 919 So.2d 431. 934 So.2d 438. 942 So.2d 406. 941 So.2d 352. 142 So.2d 724 Complete revision. Adopted 9.331. Added 9.140(b)(3). Amended 9.331. Amended 9.030–9.150, 9.220. Four-year-cycle revision. Amended 9.100, 9.200, 9.300, 9.420, 9.600. Amended 9.030, 9.100–9.130, 9.200, 9.210, 9.900; ordered publication of 1980 committee notes. Amended 9.331. Added 9.140(c)(1)(J). Amended and adopted numerous rules. Deleted 9.165; replaced 9.030(b)(4), 9.160. Amended 9.420(e). Adopted 9.315; amended 9.140(c)(1)(J), 9.200, 9.600, 9.900(g). Amended numerous rules. Clarified 529 So.2d 687. Amended 9.130(a)(3). Four-year-cycle revision. Numerous amendments. Amended 9.331. Amended 9.600. Amended 9.800(n). Amended 9.130(a). Amended 9.020(g). Added court commentary to 9.140. Four-year-cycle revision. Numerous amendments. Amended 9.110(l). Amended 9.020(h), 9.140, 9.600. Amended 9.100(g), (j)–(k). Four-year-cycle revisions. Numerous amendments. Amended 9.140 and 9.141. Two-year-cycle revisions. Numerous amendments. Amended 9.140; adopted 9.142. Amended 9.110. Amended 9.360(b). Amended 9.140. Amended 9.190, 9.200. Two-year-cycle revisions. Numerous amendments. Amended 9.140(c)(1). Adopted 9.110(n). Amended 9.160, 9.420(d). Amended 9.110, 9.900. Adopted 9.510. Amended 9.120, 9.146, 9.180, 9.200, 9.210, 9.300, 9.370.
NOTE TO USERS: Rules in this pamphlet are current through 942 So.2d 406. Subsequent amendments, if any, can be found at www.floridasupremecourt.org/decisions/rules.shtml.
TABLE OF CONTENTS 9.010. 9.020. 9.030. 9.040. 9.100. 9.110. EFFECTIVE DATE AND SCOPE DEFINITIONS JURISDICTION OF COURTS GENERAL PROVISIONS ORIGINAL PROCEEDINGS APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL REVIEW OF TRIAL COURT ORDERS AND JUDGMENTS CERTIFIED BY THE DISTRICT COURTS OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS APPEAL PROCEEDINGS IN CRIMINAL CASES REVIEW PROCEEDINGS IN COLLATERAL OR POST-CONVICTION CRIMINAL CASES PROCEDURES FOR REVIEW IN DEATH PENALTY CASES APPEAL PROCEEDINGS IN JUVENILE DELINQUENCY CASES APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES DISCRETIONARY PROCEEDINGS TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES JUDICIAL REVIEW OF ADMINISTRATIVE ACTION THE RECORD BRIEFS APPENDIX NOTICE OF SUPPLEMENTAL AUTHORITY
9.130. 9.140. 9.141. 9.142. 9.145. 9.146.
9.160. 9.180. 9.190 9.200. 9.210. 9.220. 9.225.
9.300. 9.310. 9.315. 9.320. 9.330. 9.331. 9.340. 9.350. 9.360. 9.370. 9.400. 9.410. 9.420. 9.430. 9.440. 9.500. 9.510. 9.600. 9.800. 9.900.
MOTIONS STAY PENDING REVIEW SUMMARY DISPOSITION ORAL ARGUMENT REHEARING; CLARIFICATION; CERTIFICATION DETERMINATION OF CAUSES IN A DISTRICT COURT OF APPEAL EN BANC MANDATE DISMISSAL OF CAUSES PARTIES AMICUS CURIAE COSTS AND ATTORNEYS’ FEES SANCTIONS FILING; SERVICE OF COPIES; COMPUTATION OF TIME PROCEEDINGS BY INDIGENTS ATTORNEYS ADVISORY OPINIONS TO GOVERNOR ADVISORY OPINIONS TO ATTORNEY GENERAL JURISDICTION OF LOWER TRIBUNAL PENDING REVIEW UNIFORM CITATION SYSTEM FORMS
FLORIDA RULES OF APPELLATE PROCEDURE RULE 9.010. EFFECTIVE DATE AND SCOPE
These rules, cited as “Florida Rules of Appellate Procedure,” and abbreviated “Fla. R. App. P.,” shall take effect at 12:01 a.m. on March 1, 1978. They shall govern all proceedings commenced on or after that date in the supreme court, the district courts of appeal, and the circuit courts in the exercise of the jurisdiction described by rule 9.030(c); provided that any appellate proceeding commenced before March 1, 1978, shall continue to its conclusion in the court in which it is then pending in accordance with the Florida Appellate Rules, 1962 Amendment. These rules shall supersede all conflicting statutes and, as provided in Florida Rule of Judicial Administration 2.135, all conflicting rules of procedure.
Committee Notes 1977 Amendment. The rules have been re-numbered to conform with the numbering system adopted by the Florida Supreme Court for all of its rules of practice and procedure, and to avoid confusion with the former rules, which have been extensively revised. The abbreviated citation form to be used for these rules appears in this rule and in rule 9.800. This rule sets an effective date and retains the substance of former rules 1.1, 1.2, and 1.4. A transition provision has been incorporated to make clear that proceedings already in the appellate stage before the effective date will continue to be governed by the former rules until the completion of appellate review in the court in which it is pending on the effective date. If review is sought after March 1, 1978, of an appellate determination made in a proceeding filed in the appellate court before that date, the higher court may allow review to proceed under the former rules if an injustice would result from required adherence to the new rules. Unnecessary language has been deleted and the wording has been simplified. Specific reference has been made to rule 9.030(c) to clarify those aspects of the jurisdiction of the circuit courts governed by these rules. 1992 Amendment. This rule was amended to eliminate the statement that the Florida Rules of Appellate Procedure supersede all conflicting rules. Other sets of Florida rules contain provisions applicable to certain appellate proceedings, and, in certain instances, those rules conflict with the procedures set forth for other appeals under these rules. In the absence of a clear mandate from the supreme court that only the Florida Rules of Appellate Procedure are to address appellate concerns, the committee felt that these rules should not automatically supersede other rules. See, e.g., In the Interest of E.P. v. Department of Health and Rehabilitative Services, 544 So.2d 1000 (Fla. 1989). 1996 Amendment. Rule of Judicial Administration 2.135 now mandates that the Rules of Appellate Procedure control in all appellate proceedings.
The following terms have the meanings shown as used in these rules: (a) Administrative Action. Administrative action shall include: (1) final agency action as defined in the Administrative Procedure Act, chapter 120, Florida Statutes; (2) non-final action by an agency or administrative law judge reviewable under the Administrative Procedure Act; (3) quasi-judicial decisions by any administrative body, agency, board or commission not subject to the Administrative Procedure Act; and (4) administrative action for which judicial review is provided by general law. (b) Clerk. The person or official specifically designated as such for the court or lower tribunal; if no person or official has been specifically so designated, the official or agent who most closely resembles a clerk in the functions performed. (c) Court. The supreme court; the district courts of appeal; and the circuit courts in the exercise of the jurisdiction described by rule 9.030(c), including the chief justice of the supreme court and the chief judge of a district court of appeal in the exercise of constitutional, administrative, or supervisory powers on behalf of such courts.
(d) Family Law Matter. A matter governed by the Florida Family Law Rules of Procedure. (e) Lower Tribunal. The court, agency, officer, board, commission, judge of compensation claims, or body whose order is to be reviewed. (f) Order. A decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries. (g) Parties. (1) Appellant. A party who seeks to invoke the appeal jurisdiction of a court. (2) Appellee. Every party in the proceeding in the lower tribunal other than an appellant. (3) Petitioner. A party who seeks an order under rule 9.100 or rule 9.120. (4) Respondent. Every other party in a proceeding brought by a petitioner. (h) Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing, for certification, to alter or amend, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, to correct a sentence or order of probation pursuant to Florida Rule of Criminal Procedure 3.800(b)(1), to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l), or to vacate an order based upon the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.491, the following exceptions apply: (1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties. (2) If such a motion or motions have been filed, a signed, written order granting a new trial shall be deemed rendered when filed with the clerk, notwithstanding that other such motions may remain pending at the time. (3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them. However, a pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abeyance until the filing of a signed, written order disposing of such motion. (i) Rendition of an Appellate Order. If any timely and authorized motion under rule 9.330 or 9.331 is filed, the order shall not be deemed rendered as to any party until all of the motions are either abandoned or resolved by the filing of a written order.
Committee Notes 1977 Amendment. This rule supersedes former rule 1.3. Throughout these rules the defined terms have been used in their technical sense only, and are not intended to alter substantive law. Instances may arise in which the context of the rule requires a different meaning for a defined term, but these should be rare. The term “administrative action” is new and has been defined to make clear the application of these rules to judicial review of administrative
agency action. This definition was not intended to conflict with the Administrative Procedure Act, chapter 120, Florida Statutes (1975), but was intended to include all administrative agency action as defined in the Administrative Procedure Act. The reference to municipalities is not intended to conflict with article VIII, section 1(a), Florida Constitution, which makes counties the only political subdivisions of the state. The term “clerk” retains the substance of the term “clerk” defined in the former rules. This term includes the person who in fact maintains records of proceedings in the lower tribunal if no person is specifically and officially given that duty. The term “court” retains the substance of the term “court” defined in the former rules, but has been modified to recognize the authority delegated to the chief justice of the supreme court and the chief judges of the district courts of appeal. This definition was not intended to broaden the scope of these rules in regard to the administrative responsibilities of the mentioned judicial officers. The term is used in these rules to designate the court to which a proceeding governed by these rules is taken. If supreme court review of a district court of appeal decision is involved, the district court of appeal is the “lower tribunal.” The term “lower tribunal” includes courts and administrative agencies. It replaces the terms “commission,” “board,” and “lower court” defined in the former rules. The term “order” has been broadly defined to include all final and interlocutory rulings of a lower tribunal and rules adopted by an administrative agency. Minute book entries are excluded from the definition in recognition of the decision in Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177 (Fla. 1976). It was intended that this rule encourage the entry of written orders in every case. The terms “appellant,” “appellee,” “petitioner,” and “respondent” have been defined according to the rule applicable to a particular proceeding and generally not according to the legal nature of the proceeding before the court. The term “appellee” has been defined to include the parties against whom relief is sought and all others necessary to the cause. This rule supersedes all statutes concerning the same subject matter, such as section 924.03, Florida Statutes (1975). It should be noted that if a certiorari proceeding is specifically governed by a rule that only refers to “appellant” and “appellee,” a “petitioner” and “respondent” should proceed as if they were “appellant” and “appellee,” respectively. For example, certiorari proceedings in the supreme court involving the Public Service Commission and Industrial Relations Commission are specifically governed by rule 9.110 even though that rule only refers to “appellant” and “appellee.” The parties in such a certiorari proceeding remain designated as “petitioner” and “respondent,” because as a matter of substantive law the party invoking the court’s jurisdiction is seeking a writ of certiorari. The same is true of rule 9.200 governing the record in such certiorari proceedings. The term “rendition” has been simplified and unnecessary language deleted. The filing requirement of the definition was not intended to conflict with the substantive right of review guaranteed by the Administrative Procedure Act, section 120.68(1), Florida Statutes (Supp. 1976), but to set a point from which certain procedural times could be measured. Motions that postpone the date of rendition have been narrowly limited to prevent deliberate delaying tactics. To postpone rendition the motion must be timely, authorized, and one of those listed. However, if the lower tribunal is an administrative agency whose rules of practice denominate motions identical to those listed by a different label, the substance of the motion controls and rendition is postponed accordingly. The definition of “legal holiday” has been eliminated but its substance has been retained in rule 9.420(e). The term “bond” is defined in rule 9.310(c)(1). Terms defined in the former rules and not defined here are intended to have their ordinary meanings in accordance with the context of these rules. 1992 Amendment. Subdivision (a) has been amended to reflect properly that deputy commissioners presently are designated as judges of compensation claims. Subdivision (g) has been rewritten extensively. The first change in this rule was to ensure that an authorized motion for clarification (such as under rule 9.330) was included in those types of motions that delay rendition. Subdivision (g) also has been revised in several respects to clarify some problems presented by the generality of the prior definition of “rendition.” Although rendition is postponed in most types of cases by the filing of timely and authorized post-judgment motions, some rules of procedure explicitly provide to the contrary. The subdivision therefore has been qualified to provide that conflicting rules shall control over the general rule stated in the subdivision. See In Re Interest of E. P., 544 So.2d 1000 (Fla. 1989). The subdivision also has been revised to make explicit a qualification of long standing in the decisional law, that rendition of non-final orders cannot be postponed by motions directed to them. Not all final orders are subject to postponement of rendition, however. Rendition of a final order can be postponed only by an “authorized” motion, and whether any of the listed motions is an “authorized” motion depends on the rules of procedure governing the proceeding in which the final order is entered. See Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA 1986), review denied 494 So.2d 1153. Subdivision (g)(1) has been added to clarify the date of rendition when post-judgment motions have been filed. If there is only 1 plaintiff and 1 defendant in the case, the filing of a post-judgment motion or motions by either party (or both parties) will postpone rendition of the entire final order as to all claims between the parties. If there are multiple parties on either or both sides of the case and less than all parties file post-judgment motions, rendition of the final order will be postponed as to all claims between moving parties and parties moved against, but rendition will not be postponed with respect to claims disposed of in the final order between parties who have no post-judgment motions pending between them with respect to any of those claims. See, e.g., Phillips v. Ostrer, 442 So.2d 1084 (Fla. 3d DCA 1983).
Ideally, all post-judgment motions should be disposed of at the same time. See Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla. 1985). If that occurs, the final order is deemed rendered as to all claims when the order disposing of the motions is filed with the clerk. If all motions are not disposed of at the same time, the final order is deemed rendered as to all claims between a moving party and a party moved against when the written order disposing of the last remaining motion addressed to those claims is filed with the clerk, notwithstanding that other motions filed by co-parties may remain pending. If such motions remain, the date of rendition with respect to the claims between the parties involved in those motions shall be determined in the same way. Subdivision (g)(2) has been added to govern the special circumstance that arises when rendition of a final order has been postponed initially by post-judgment motions, and a motion for new trial then is granted. If the new trial has been granted simply as an alternative to a new final order, the appeal will be from the new final order. However, if a new trial alone has been ordered, the appeal will be from the new trial order. See rule 9.110. According to the decisional law, rendition of such an order is not postponed by the pendency of any additional, previously filed postjudgment motions, nor can rendition of such an order be postponed by the filing of any further motion. See Frazier v. Seaboard System Railroad, Inc., 508 So.2d 345 (Fla. 1987). To ensure that subdivision (g)(1) is not read as a modification of this special rule, subdivision (g)(2) has been added to make it clear that a separately appealable new trial order is deemed rendered when filed, notwithstanding that other post-judgment motions directed to the initial final order may remain pending at the time. Subdivision (g)(3) has been added to clarify the confusion generated by a dictum in Williams v. State, 324 So.2d 74 (Fla. 1975), which appeared contrary to the settled rule that post-judgment motions were considered abandoned by a party who filed a notice of appeal before their disposition. See In Re: Forfeiture of $104,591 in U.S. Currency, 578 So.2d 727 (Fla. 3d DCA 1991). The new subdivision confirms that rule, and provides that the final order is rendered as to the appealing party when the notice of appeal is filed. Although the final order is rendered as to the appealing party, it is not rendered as to any other party whose post-judgment motions are pending when the notice of appeal is filed. 1996 Amendment. Subdivision (a) was amended to reflect the current state of the law. When the term “administrative action” is used in the Florida Rules of Appellate Procedure, it encompasses proceedings under the Administrative Procedure Act, quasi-judicial proceedings before local government agencies, boards, and commissions, and administrative action for which judicial review is provided by general law. Addition of language in subdivision (i) is intended to toll the time for the filing of a notice of appeal until the resolution of a timely filed motion to vacate when an order has been entered based on the recommendation of a hearing officer in a family law matter. Under the prior rules, a motion to vacate was not an authorized motion to toll the time for the filing of an appeal, and too often the motion to vacate could not be heard within 30 days of the rendition of the order. This rule change permits the lower tribunal to complete its review prior to the time an appeal must be filed. 2000 Amendment. The text of subdivision (i) was moved into the main body of subdivision (h) to retain consistency in the definitional portions of the rule. Court Commentary 1996 Amendment. Subdivision (h) was amended to ensure that a motion to correct sentence or order of probation and a motion to withdraw the plea after sentencing would postpone rendition. Subdivision (h)(3) was amended to explain that such a motion is not waived by an appeal from a judgment of guilt.
JURISDICTION OF COURTS
(a) Jurisdiction of Supreme Court. (1) Appeal Jurisdiction. (A) The supreme court shall review, by appeal (i) final orders of courts imposing sentences of death;1 (ii) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.2 (B) If provided by general law, the supreme court shall review (i) by appeal final orders entered in proceedings for the validation of bonds or certificates of indebtedness;3 (ii) action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service.4
(2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that5 (i) expressly declare valid a state statute; (ii) expressly construe a provision of the state or federal constitution; (iii) expressly affect a class of constitutional or state officers; (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (v) pass upon a question certified to be of great public importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal; (B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and6 (i) to be of great public importance, or (ii) to have a great effect on the proper administration of justice; (C) questions of law certified by the Supreme Court of the United States or a United States court of appeals that are determinative of the cause of action and for which there is no controlling precedent of the Supreme Court of Florida.7 (3) Original Jurisdiction. The supreme court may issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction, and may issue writs of mandamus and quo warranto to state officers and state agencies. The supreme court or any justice may issue writs of habeas corpus returnable before the supreme court or any justice, a district court of appeal or any judge thereof, or any circuit judge.8 (b) Jurisdiction of District Courts of Appeal. (1) Appeal Jurisdiction. District courts of appeal shall review, by appeal (A) final orders of trial courts,1, 2 not directly reviewable by the supreme court or a circuit court, including county court final orders declaring invalid a state statute or provision of the state constitution; (B) non-final orders of circuit courts as prescribed by rule 9.130;9 (C) administrative action if provided by general law.2 (2) Certiorari Jurisdiction.8 The certiorari jurisdiction of district courts of appeal may be sought to review (A) non-final orders of lower tribunals other than as prescribed by rule 9.130; (B) final orders of circuit courts acting in their review capacity. (3) Original Jurisdiction.8 District courts of appeal may issue writs of mandamus, prohibition, quo warranto, and common law certiorari, and all writs necessary to the complete exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof, or before any circuit judge
within the territorial jurisdiction of the court. (4) Discretionary Review.10 District courts of appeal, in their discretion, may review by appeal (A) final orders of the county court, otherwise appealable to the circuit court under these rules, that the county court has certified to be of great public importance; (B) non-final orders, otherwise appealable to the circuit court under rule 9.140(c), that the county court has certified to be of great public importance. (c) Jurisdiction of Circuit Courts. (1) Appeal Jurisdiction. The circuit courts shall review, by appeal (A) final orders of lower tribunals as provided by general law;1, 2 (B) non-final orders of lower tribunals as provided by general law; (C) administrative action if provided by general law. (2) Certiorari Jurisdiction.8 The certiorari jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by rule 9.130. (3) Original Jurisdiction.8 Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction.
1. 9.140: 2. 9.110: 3. 9.110(i): 4. 9.110: 5. 9.120: 6. 9.125: 7. 9.150: 8. 9.100: 9. 9.130: 10. 9.160: Appeal Proceedings in Criminal Cases. Appeal Proceedings: Final Orders. Validation of Bonds. Appeal Proceedings: Final Orders; 9.100: Original Proceedings. Discretionary Review of District Court Decisions. Discretionary Review of Trial Court Orders and Judgments Certified by the District Court. Certified Questions from Federal Courts. Original Proceedings. Appeal Proceedings: Non-Final Orders. Discretionary Review of County Court Decisions. Committee Notes 1977 Amendment. This rule replaces former rules 2.1(a)(5) and 2.2(a)(4). It sets forth the jurisdiction of the supreme court, district courts of appeal, and that portion of the jurisdiction of the circuit courts to which these rules apply. It paraphrases sections 3(b), 4(b), and, in relevant part, 5(b) of article V of the Florida Constitution. The items stating the certiorari jurisdiction of the supreme court and district courts of appeal refer to the constitutional jurisdiction popularly known as the “constitutional certiorari” jurisdiction of the supreme court and “common law certiorari” jurisdiction of the district courts of appeal. This rule is not intended to affect the substantive law governing the jurisdiction of any court and should not be considered as authority for the resolution of disputes concerning any court’s jurisdiction. Its purpose is to provide a tool of reference to the practitioner so that ready reference may be made to the specific procedural rule or rules governing a particular proceeding. Footnote references have been made to the rule or rules governing proceedings invoking the listed areas of jurisdiction. This rule does not set forth the basis for the issuance of advisory opinions by the supreme court to the governor because the power to advise rests with the justices under article IV, section 1(c), Florida Constitution, and not the supreme court as a body. The procedure governing requests from the governor for advice are set forth in rule 9.500. The advisory committee considered and rejected as unwise a proposal to permit the chief judge of each judicial circuit to modify the applicability of these rules to that particular circuit. These rules may be modified in a particular case, of course, by an agreed joint motion of the parties granted by the court so long as the change does not affect jurisdiction. 1980 Amendment. Subdivision (a) of this rule has been extensively revised to reflect the constitutional modifications in the supreme court’s jurisdiction as approved by the electorate on March 11, 1980. See art. V, § 3(b), Fla. Const. (1980). The impetus for these modifications was a burgeoning caseload and the attendant need to make more efficient use of limited appellate resources. Consistent with this purpose, revised
subdivision (a) limits the supreme court’s appellate, discretionary, and original jurisdiction to cases that substantially affect the law of the state. The district courts of appeal will constitute the courts of last resort for the vast majority of litigants under amended article V. Subdivision (a)(1)(A)(i) retains the mandatory appellate jurisdiction of the supreme court to review final orders of trial courts imposing death sentences. Subdivision (a)(1)(A)(ii) has been substantively changed in accordance with amended article V, section 3(b)(1), Florida Constitution (1980), to eliminate the court’s mandatory appellate review of final orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution. Mandatory supreme court review under this subdivision is now limited to district court decisions “declaring invalid” a state statute or a provision of the state constitution. Jurisdiction to review final orders of trial courts in all instances enumerated in former subdivision (a)(1)(A)(ii) now reposes in the appropriate district court of appeal. Revised subdivision (a)(1)(B) enumerates the 2 classes of cases that the supreme court may review if provided by general law. See art. V, § 3(b)(2), Fla. Const. (1980). Eliminated from the amended article V and rule is the legislative authority, never exercised, to require supreme court review of trial court orders imposing sentences of life imprisonment. Subdivision (a)(1)(B)(i), pertaining to bond validation proceedings, replaces former subdivision (a)(1)(B)(ii). Its phraseology remains unchanged. Enabling legislation already exists for supreme court review of bond validation proceedings. See § 75.08, Fla. Stat. (1979). Subdivision (a)(1)(B)(ii) is new. See art. V, § 3(b)(2), Fla. Const. (1980). Under the earlier constitutional scheme, the supreme court was vested with certiorari jurisdiction (which in practice was always exercised) to review orders of “commissions established by general law having statewide jurisdiction,” including orders of the Florida Public Service Commission. See art. V, § 3(b)(3), Fla. Const. (1968); § 350.641, Fla. Stat. (1979). This jurisdiction has been abolished. In its stead, amended article V limits the supreme court’s review of Public Service Commission orders to those “relating to rates or services of utilities providing electric, gas, or telephone service.” Enabling legislation will be required to effectuate this jurisdiction. Review of Public Service Commission orders other than those relating to electric, gas, or utility cases now reposes in the appropriate district court of appeal. See art. V, § 4(b)(2), Fla. Const. (1968); Fla. R. App. P. 9.030(b)(1)(C); and § 120.68(2), Fla. Stat. (1979). Subdivision (a)(2) has been substantially revised in accordance with amended article V, section 3(b)(3), Florida Constitution (1980), to restrict the scope of review under the supreme court’s discretionary jurisdiction. Under the earlier constitution, this jurisdiction was exercised by writ of certiorari. Constitutional certiorari is abolished under amended article V. Reflecting this change, revised subdivision (a)(2) of this rule substitutes the phrase “discretionary jurisdiction” for “certiorari jurisdiction” in the predecessor rule. This discretionary jurisdiction is restricted, moreover, to 6 designated categories of district court decisions, discussed below. Amended article V eliminates the supreme court’s discretionary power to review “any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the Supreme Court” as reflected in subdivision (a)(2)(B) of the predecessor rule. It also eliminates the supreme court’s certiorari review of “commissions established by general law having statewide jurisdiction” as reflected in subdivision (a)(2)(C) of the predecessor rule. Subdivision (a)(2)(A) specifies the 6 categories of district court decisions reviewable by the supreme court under its discretionary jurisdiction. Subdivisions (a)(2)(A)(i) and (a)(2)(A)(ii) are new and pertain to matters formerly reviewable under the court’s mandatory appellate jurisdiction. Under former rule 9.030(a)(1)(A)(ii), the supreme court’s mandatory appellate jurisdiction could be invoked if a lower tribunal “inherently” declared a statute valid. See Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So.2d 439 (Fla. 1959). The 1980 amendments to article V and this subdivision require a district court to “expressly declare” a state statute valid before the supreme court’s discretionary jurisdiction may be invoked. Subdivision (a)(2)(A)(iii), pertaining to supreme court review of district court decisions affecting a class of constitutional or state officers, has been renumbered. It tracks the language of the predecessor constitution and rule, with the addition of the restrictive word “expressly” found in amended article V. Subdivision (a)(2)(A)(iv) represents the most radical change in the supreme court’s discretionary jurisdiction. The predecessor article V vested the supreme court with power to review district court decisions “in direct conflict with a decision of any district court of appeal or of the Supreme Court on the same point of law.” These cases comprised the overwhelming bulk of the court’s caseload and gave rise to an intricate body of case law interpreting the requirements for discretionary conflict review. With the enunciation of the “record proper rule” in Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965), the supreme court extended its discretionary review in instances of discernible conflict to district court decisions affirming without opinion the orders of trial courts. Amended article V abolishes the Foley doctrine by requiring an “express” as well as a “direct” conflict of district court decisions as a prerequisite to supreme court review. The new article also terminates supreme court jurisdiction over purely intradistrict conflicts, the resolution of which is addressed in rule 9.331. Subdivision (a)(2)(A)(v) substitutes the phrase “great public importance” for “great public interest” in the predecessor constitution and rule. The change was to recognize the fact that some legal issues may have “great public importance,” but may not be sufficiently known by the public to have “great public interest.” Subdivision (a)(2)(A)(vi) is new and tracks the language of article V, section 3(b)(4), Florida Constitution (1980).
Subdivisions (a)(2)(B) and (a)(2)(C) are new. See art. V, §§ 3(b)(5), (3)(b)(6), Fla. Const. (1980). Certification procedures under these subdivisions are addressed in rule 9.125 and rule 9.150, respectively. Subdivision (a)(3) is identical to the predecessor article V and rule, except it limits the issuance of writs of prohibition to “courts” rather than “courts and commissions” and limits the issuance of writs of mandamus and quo warranto to “state agencies” rather than “agencies.” 1984 Amendment. Subdivision (b)(4) was added to implement legislation authorizing district courts of appeal discretion to review by appeal orders and judgments of county courts certified to be of great public importance. 1992 Amendment. Subdivision (c)(1)(B) was amended to reflect correctly that the appellate jurisdiction of circuit courts extended to all nonfinal orders of lower tribunals as prescribed by rule 9.130, and not only those defined in subdivision (a)(3) of that rule. Subdivision (c)(1)(C) was amended to reflect the jurisdiction conferred on circuit courts by article V, section 5, Florida Constitution, which provides that “[t]hey shall have the power of direct review of administrative action prescribed by general law.” 2000 Amendment. Subdivision (c)(1)(B) was amended to reflect that the appellate jurisdiction of circuit courts is prescribed by general law and not by rule 9.130, as clarified in Blore v. Fierro, 636 So.2d 1329 (Fla. 1994).
(a) Complete Determination. In all proceedings a court shall have such jurisdiction as may be necessary for a complete determination of the cause. (b) Forum. (1) If a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court. (2) After a lower tribunal renders an order transferring venue, the appropriate court to review otherwise reviewable non-final orders is as follows: (A) After rendition of an order transferring venue, the appropriate court to review the non-final venue order, all other reviewable non-final orders rendered prior to or simultaneously with the venue order, any order staying, vacating, or modifying the transfer of venue order, or an order dismissing a cause for failure to pay venue transfer fees, is the court that would review non-final orders in the cause, had venue not been transferred. (B) After rendition of an order transferring venue, the appropriate court to review any subsequently rendered reviewable non-final order, except for those orders listed in subdivision (b)(2)(A), is the court which would review the order, if the cause had been filed in the lower tribunal to which venue was transferred. (C) The clerk of the lower tribunal whose order is being reviewed shall perform the procedures required by these provisions regarding transfer of venue, including accepting and filing a notice of appeal. If necessary to facilitate non-final review, after an order transferring venue has been rendered, the clerk of the lower tribunal shall copy and retain such portions of the record as are necessary for review of the non-final order. If the file of the cause has been transferred to the transferee tribunal before the notice of appeal is filed in the transferring tribunal, the clerk of the transferee tribunal shall copy and transmit to the transferring tribunal such portions of the record as are necessary for review of the non-final order. (c) Remedy. If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy. (d) Amendment. At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties. (e) Assignments of Error. Assignments of error are neither required nor permitted.
(f) Filing Fees. Filing fees may be paid by check or money order. (g) Clerks’ Duties. On filing of a notice prescribed by these rules, the clerk shall forthwith transmit the fee and a certified copy of the notice, showing the date of filing, to the court. If jurisdiction has been invoked under rule 9.030(a)(2)(A)(v) or (a)(2)(A)(vi), or if a certificate has been issued by a district court under rule 9.030(a)(2)(B), the clerk of the district court of appeal shall transmit copies of the certificate and decision or order and any suggestion, replies, or appendices with the certified copy of the notice. Notices to review final orders of county and circuit courts in civil cases shall be recorded. (h) Non-Jurisdictional Matters. Failure of a clerk or a party timely to file fees or additional copies of notices or petitions or the conformed copy of the order or orders designated in the notice of appeal shall not be jurisdictional; provided that such failure may be the subject of appropriate sanction.
Committee Notes 1977 Amendment. This rule sets forth several miscellaneous matters of general applicability. Subdivision (a) is derived from the last sentence of former rule 2.1(a)(5)(a), which concerned direct appeals to the supreme court. This provision is intended to guarantee that once the jurisdiction of any court is properly invoked, the court may determine the entire case to the extent permitted by substantive law. This rule does not extend or limit the constitutional or statutory jurisdiction of any court. Subdivisions (b) and (c) implement article V, section 2(a), Florida Constitution. Former rule 2.1(a)(5)(d) authorized transfer if an improper forum was chosen, but the former rules did not address the problem of improper remedies being sought. The advisory committee does not consider it to be the responsibility of the court to seek the proper remedy for any party, but a court may not deny relief because a different remedy is proper. Under these provisions a case will not be dismissed automatically because a party seeks an improper remedy or invokes the jurisdiction of the wrong court. The court must instead treat the case as if the proper remedy had been sought and transfer it to the court having jurisdiction. All filings in the case have the same legal effect as though originally filed in the court to which transfer is made. This rule is intended to supersede Nellen v. State, 226 So.2d 354 (Fla. 1st DCA 1969), in which a petition for a common law writ of certiorari was dismissed by the district court of appeal because review was properly by appeal to the appropriate circuit court, and Engel v. City of North Miami, 115 So.2d 1 (Fla. 1959), in which a petition for a writ of certiorari was dismissed because review should have been by appeal. Under this rule, a petition for a writ of certiorari should be treated as a notice of appeal, if timely. Subdivision (d) is the appellate procedure counterpart of the harmless error statute, section 59.041, Florida Statutes (1975). It incorporates the concept contained in former rule 3.2(c), which provided that deficiencies in the form or substance of a notice of appeal were not grounds for dismissal, absent a clear showing that the adversary had been misled or prejudiced. Amendments should be liberally allowed under this rule, including pleadings in the lower tribunal, if it would not result in irremediable prejudice. Subdivision (e) is intended to make clear that assignments of error have been abolished by these rules. It is not intended to extend the scope of review to matters other than judicial acts. If less than the entire record as defined in rule 9.200(a)(1) is to be filed, rule 9.200(a)(2) requires service of a statement of the judicial acts for which review is sought. This requirement also applies under rule 9.140(d). As explained in the commentary accompanying those provisions, such a statement does not have the same legal effect as an assignment of error under the former rules. Subdivision (f) permits payment of filing fees by check or money order and carries forward the substance of former rule 3.2(a), which allowed payments in cash. Subdivision (g) is derived from former rules 3.2(a) and 3.2(e). Under these rules, notices and fees are filed in the lower tribunal unless specifically stated otherwise. The clerk must transmit the notice and fees immediately. This requirement replaces the provision of the former rules that the notice be transmitted within 5 days. The advisory committee was of the view that no reason existed for any delays. The term “forthwith” should not be construed to prevent the clerk from delaying transmittal of a notice of criminal appeal for which no fee has been filed for the period of time necessary to obtain an order regarding solvency for appellate purposes and the appointment of the public defender for an insolvent defendant. This provision requires recording of the notice if review of a final trial court order in a civil case is sought. When supreme court jurisdiction is invoked on the basis of the certification of a question of great public interest, the clerk of the district court of appeal is required to transmit a copy of the certificate and the decision to the court along with the notice and fees. Subdivision (h) is intended to implement the decision in Williams v. State, 324 So.2d 74 (Fla. 1975), in which it was held that only the timely filing of the notice of appeal is jurisdictional. The proviso permits the court to impose sanctions if there is a failure to timely file fees or copies of the notice or petition. The advisory committee considered and rejected as too difficult to implement a proposal of the bar committee that the style of a cause should remain the same as in the lower tribunal. It should be noted that these rules abolish the practice of permitting Florida trial courts to certify questions to an appellate court. The former
rules relating to the internal government of the courts and the creation of the advisory committee have been eliminated as irrelevant to appellate procedure. At its conference of June 27, however, the court unanimously voted to establish a committee to, among other things, prepare a set of administrative rules to incorporate matters of internal governance formerly contained in the appellate rules. The advisory committee has recommended that its existence be continued by the supreme court. 1980 Amendment. Subdivision (g) was amended to direct the clerk of the district court to transmit copies of the district court decision, the certificate, the order of the trial court, and the suggestion, replies, and appendices in all cases certified to the supreme court under rule 9.030(a)(2)(B) or otherwise certified under rule 9.030(a)(2)(A)(v) or (a)(2)(A)(vi). 1992 Amendment. Subdivision (h) was amended to provide that the failure to attach conformed copies of the order or orders designated in a notice of appeal as is now required by rules 9.110(d), 9.130(c), and 9.160(c) would not be a jurisdictional defect, but could be the basis of appropriate sanction by the court if the conformed copies were not included with the notice of appeal. 2000 Amendment. In the event non-final or interlocutory review of a reviewable, non-final order is sought, new subdivision 9.040(b)(2) specifies which court should review such order, after rendition of an order transferring venue to another lower tribunal outside the appellate district of the transferor lower tribunal. It is intended to change and clarify the rules announced in Vasilinda v. Lozano, 631 So.2d 1082 (Fla. 1994), and Cottingham v. State, 672 So.2d 28 (Fla. 1996). The subdivision makes the time a venue order is rendered the critical factor in determining which court should review such non-final orders, rather than the time fees are paid, or the time the file is received by the transferee lower tribunal, and it applies equally to civil as well as criminal cases. If review is sought of the order transferring venue, as well as other reviewable non-final orders rendered before the change of venue order is rendered, or ones rendered simultaneously with it, review should be by the court that reviews such orders from the transferring lower tribunal. If review is sought of reviewable, non-final orders rendered after the time the venue order is rendered, review should be by the court that reviews such orders from the transferee lower tribunal. The only exceptions are for review of orders staying or vacating the transfer of venue order, or an order dismissing the cause for failure to pay fees, which should be reviewed by the court that reviews orders from the transferring lower tribunal. This paragraph is not intended to apply to review of reviewable non-final orders, for which non-final or interlocutory review is not timely sought or perfected.
(a) Applicability. This rule applies to those proceedings that invoke the jurisdiction of the courts described in rules 9.030(a)(3), (b)(2), (b)(3), (c)(2), and (c)(3) for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction; and for review of non-final administrative action. (b) Commencement; Parties. The original jurisdiction of the court shall be invoked by filing a petition, accompanied by a filing fee if prescribed by law, with the clerk of the court deemed to have jurisdiction. If the original jurisdiction of the court is invoked to enforce a private right, the proceeding shall not be brought on the relation of the state. If the petition seeks review of an order entered by a lower tribunal, all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents. (c) Exceptions; Petitions for Certiorari; Review of Non-Final Agency Action. The following shall be filed within 30 days of rendition of the order to be reviewed: (1) A petition for certiorari. (2) A petition to review quasi-judicial action of agencies, boards, and commissions of local government, which action is not directly appealable under any other provision of general law but may be subject to review by certiorari. (3) A petition to review non-final agency action under the Administrative Procedure Act. (4) A petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings. Lower court judges shall not be named as respondents to petitions for certiorari; individual members of the agencies, boards, and commissions of local government shall not be named as respondents to petitions for review of final quasi-judicial action; and hearing officers shall not be named as respondents to petitions for review of non-final agency action. A copy of the petition shall be furnished to the person (or chairperson of a collegial administrative agency) issuing the order. (d) Exception; Orders Excluding Press or Public.
(1) A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential, shall be filed in the court as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral. A copy shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, and to the parties to the proceeding. (2) The court shall immediately consider the petition to determine whether a stay of proceedings in the lower tribunal is appropriate, and on its own motion or that of any party, the court may order a stay on such conditions as may be appropriate. (3) If requested by the petitioner or any party, or on its own motion, the court may allow oral argument. (e) Exception; Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal. When a petition for a writ of mandamus or prohibition seeks a writ directed to a judge or lower tribunal, the following procedures apply: (1) Caption. The name of the judge or lower tribunal shall be omitted from the caption. The caption shall bear the name of the petitioner and other parties to the proceeding in the lower tribunal who are not petitioners shall be named in the caption of respondents. (2) Parties. The judge or the lower tribunal is a formal party to the petition for mandamus or prohibition and must be named as such in the body of the petition (but not in the caption). The petition must be served on all parties, including any judge or lower tribunal who is a formal party to the petition. (3) Response. The responsibility to respond to an order to show cause is that of the litigant opposing the relief requested in the petition. Unless otherwise specifically ordered, the judge or lower tribunal has no obligation to file a response. The judge or lower tribunal retains the discretion to file a separate response should the judge or lower tribunal choose to do so. The absence of a separate response by the judge or lower tribunal shall not be deemed to admit the allegations of the petition. (f) Review Proceedings in Circuit Court. (1) Applicability. The following additional requirements apply to those proceedings that invoke the jurisdiction of the circuit court described in rules 9.030(c)(2) and (c)(3) to the extent that the petition involves review of judicial or quasi-judicial action. (2) Caption. The caption shall contain a statement that the petition is filed pursuant to this subdivision. (3) Duties of the Circuit Court Clerk. When a petition prescribed by this subdivision is filed, the circuit court clerk shall forthwith transmit the petition to the administrative judge of the appellate division, or other appellate judge or judges as prescribed by administrative order, for a determination as to whether an order to show cause should be issued. (4) Default. The clerk of the circuit court shall not enter a default in a proceeding where a petition has been filed pursuant to this subdivision. (g) Petition. The caption shall contain the name of the court and the name and designation of all parties on each side. The petition shall not exceed 50 pages in length and shall contain (1) the basis for invoking the jurisdiction of the court;
(2) the facts on which the petitioner relies; (3) the nature of the relief sought; and (4) argument in support of the petition and appropriate citations of authority. If the petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by rule 9.220, and the petition shall contain references to the appropriate pages of the supporting appendix. (h) Order to Show Cause. If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. In prohibition proceedings such orders shall stay further proceedings in the lower tribunal. (i) Record. A record shall not be transmitted to the court unless ordered. (j) Response. Within the time set by the court, the respondent may serve a response, which shall not exceed 50 pages in length and which shall include argument in support of the response, appropriate citations of authority, and references to the appropriate pages of the supporting appendices. (k) Reply. Within 20 days thereafter or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length, and supplemental appendix. (l) General Requirements; Fonts. The lettering in all petitions, responses, and replies filed under this rule shall be black and in distinct type, double-spaced, with margins no less than 1 inch. Lettering in script or type made in imitation of handwriting shall not be permitted. Footnotes and quotations may be single spaced and shall be in the same size type, with the same spacing between characters, as the text. Computer-generated petitions, responses, and replies shall be submitted in either Times New Roman 14-point font or Courier New 12-point font. All computergenerated petitions, responses, and replies shall contain a certificate of compliance signed by counsel, or the party if unrepresented, certifying that the petition, response, or reply complies with the font requirements of this rule. The certificate of compliance shall be contained in the petition, response, or reply immediately following the certificate of service.
Committee Notes 1977 Amendment. This rule replaces former rule 4.5, except that the procedures applicable to supreme court review of decisions of the district courts of appeal on writs of constitutional certiorari are set forth in rule 9.120; and supreme court direct review of administrative action on writs of certiorari is governed by rule 9.100. This rule governs proceedings invoking the supreme court’s jurisdiction to review an interlocutory order passing on a matter where, on final judgment, a direct appeal would lie in the supreme court. The procedures set forth in this rule implement the supreme court’s decision in Burnsed v. Seaboard Coastline R.R., 290 So.2d 13 (Fla. 1974), that such interlocutory review rests solely within its discretionary certiorari jurisdiction under article V, section 3(b)(3), Florida Constitution, and that its jurisdiction would be exercised only when, on the peculiar circumstances of a particular case, the public interest required it. This rule abolishes the wasteful current practice in such cases of following the procedures governing appeals, with the supreme court treating such appeals as petitions for the writ of certiorari. This rule requires that these cases be prosecuted as petitions for the writ of certiorari. This rule also provides the procedures necessary to implement the Administrative Procedure Act, section 120.68(1), Florida Statutes (Supp. 1976), which provides for judicial review of non-final agency action “if review of the final agency decision would not provide an adequate remedy.” It was the opinion of the advisory committee that such a right of review is guaranteed by the statute and is not dependent on a court rule, because article V, section 4(b)(2), Florida Constitution provides for legislative grants of jurisdiction to the district courts to review administrative action without regard to the finality of that action. The advisory committee was also of the view that the right of review guaranteed by the statute is no broader than the generally available common law writ of certiorari, although the statutory remedy would prevent resort to an extraordinary writ. Subdivisions (b) and (c) set forth the procedure for commencing an extraordinary writ proceeding. The time for filing a petition for common law certiorari is jurisdictional. If common law certiorari is sought to review an order issued by a lower tribunal consisting of more than 1 person, a copy of the petition should be furnished to the chairperson of that tribunal.
Subdivision (d) sets forth the procedure for appellate review of orders excluding the press or public from access to proceedings or records in the lower tribunal. It establishes an entirely new and independent means of review in the district courts, in recognition of the decision in English v. McCrary, 348 So.2d 293 (Fla. 1977), to the effect that a writ of prohibition is not available as a means to obtain review of such orders. Copies of the notice must be served on all parties to the proceeding in the lower tribunal, as well as the person who, or the chairperson of the agency that, issued the order. No provision has been made for an automatic stay of proceedings, but the district court is directed to consider the appropriateness of a stay immediately on the notice being filed. Ordinarily an order excluding the press and public will be entered well in advance of the closed proceedings in the lower tribunal, so that there will be no interruption of the proceeding by reason of the appellate review. In the event a challenged order is entered immediately before or during the course of a proceeding and it appears that a disruption of the proceeding will be prejudicial to 1 or more parties, the reviewing court on its own motion or at the request of any party shall determine whether to enter a stay or to allow the lower tribunal to proceed pending review of the challenged order. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 911 (Fla. 1977). This new provision implements the “strict procedural safeguards” requirement laid down by the United States Supreme Court in National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). In that case the Court held that state restraints imposed on activities protected by the First Amendment must be either immediately reviewable or subject to a stay pending review. Subdivision (e) sets forth the contents of the initial pleading. The party seeking relief must file a petition stating the authority by which the court has jurisdiction of the case, the relevant facts, the relief sought, and argument supported by citations of authority. This rule does not allow the petitioner to file a brief. Any argument or citations of authority that the petitioner desires to present to the court must be contained in the petition. This change in procedure is intended to eliminate the wasteful current practice of filing repetitive petitions and briefs. Under subdivision (g) no record is required to be filed unless the court so orders, but under subdivision (e) the petitioner must file an appendix to the petition containing conformed copies of the order to be reviewed and other relevant material, including portions of the record, if a record exists. The appendix should also contain any documents that support the allegations of fact contained in the petition. A lack of supporting documents may, of course, be considered by the court in exercising its discretion not to issue an order to show cause. Under subdivisions (f), (h), and (i), if the allegations of the petition, if true, would constitute grounds for relief, the court may exercise its discretion to issue an order requiring the respondent to show cause why the requested relief should not be granted. A single responsive pleading (without a brief) may then be served, accompanied by a supplemental appendix, within the time period set by the court in its order to show cause. The petitioner is then allowed 20 days to serve a reply and supplemental appendix, unless the court sets another time. It should be noted that the times for response and reply are computed by reference to service rather than filing. This practice is consistent throughout these rules except for initial, jurisdictional filings. The emphasis on service, of course, does not relieve counsel of the responsibility for filing original documents with the court as required by rule 9.420(b); it merely affects the time measurements. Except as provided automatically under subdivision (f), a stay pending resolution of the original proceeding may be obtained under rule 9.310. Transmittal of the record under order of the court under subdivision (g) shall be in accordance with the instructions and times set forth in the order. 1980 Amendment. The rule was amended by deleting its reference to former rule 9.030(a)(2)(B) to reflect the 1980 revisions to article V, section 3(b), Florida Constitution that eliminated supreme court review by certiorari of non-final orders that would have been appealable if they had been final orders. The procedures applicable to discretionary supreme court review of district court decisions under rule 9.030(a)(2)(A) are governed by rule 9.120. The procedures applicable to supreme court discretionary review of trial court orders and judgments certified by the district courts under rule 9.030(a)(2)(B) are set forth in rule 9.125. Subdivision (d) was amended to delete references to the district courts of appeal as the proper court for review of orders excluding the press and public, because the appropriate court could also be a circuit court or the supreme court. 1992 Amendment. Subdivision (b) was amended to add 2 provisions clarifying designation of parties to original proceedings. The first change eliminates the practice of bringing original proceedings on the relation of the state and instead requires that if a private right is being enforced, an action must be brought in the names of the parties. Second, this subdivision now requires that all parties not named as petitioners be included in the style as respondents, consistent with rules 9.020(f)(3) and (f)(4). Subdivision (c) was amended to eliminate the practice of naming lower court judges, members of administrative bodies, and hearing officers as respondents in petitions for certiorari and for review of non-final agency action. Such individuals still are to be served a copy of the petition, but the amendment is to eliminate any suggestion that they are parties or adverse to the petitioner. Subdivision (c) also was amended to reflect that review of final administrative action, taken by local government agencies, boards, and commissions acting in a quasi-judicial capacity, is subject to the requirement that the petition for writ of certiorari be filed within 30 days of rendition of the order to be reviewed. Subdivision (e) was amended to require that the petition, the jurisdictional document, identify all parties on each side to assist the court in identifying any potential conflicts and to identify all parties to the proceeding as required by subdivision (b) of this rule. Additionally, this
subdivision was amended to require, consistent with rule 9.210(b)(3), that the petition make references to the appropriate pages of the appendix that is required to accompany the petition. Subdivision (f) was amended to add the existing requirement in the law that a petition must demonstrate not only that there has been a departure from the essential requirements of law, but also that that departure will cause material injury for which there is no adequate remedy by appeal. This subdivision, without amendment, suggested that it established a standard other than that recognized by Florida decisional law. Subdivision (h) was amended to require that any response, like the petition, contain references to the appropriate pages of appendices, consistent with subdivision (f) of this rule and rules 9.210(b)(3) and 9.210(c). 1996 Amendment. The reference to “common law” certiorari in subdivision (c)(1) was removed so as to make clear that the 30-day filing limit applies to all petitions for writ of certiorari. Subdivision (c)(4) is new and pertains to review formerly available under rule 1.630. It provides that a prisoner’s petition for extraordinary relief, within the original jurisdiction of the circuit court under rule 9.030(c)(3) must be filed within 30 days after final disposition of the prisoner disciplinary proceedings conducted through the administrative grievance process under chapter 33, Florida Administrative Code. See Jones v. Florida Department of Corrections, 615 So.2d 798 (Fla. 1st DCA 1993). Subdivision (e) was added, and subsequent subdivisions re-lettered, in order to alter the procedural requirements placed or apparently placed on lower court judges in prohibition and mandamus proceedings. The duty to respond to an Order to Show Cause is expressly placed on the party opposing the relief requested in the petition, and any suggestion of a duty to respond on the part of the lower court judge is removed. The lower court judge retains the option to file a response. In those circumstances in which a response from the lower tribunal is desirable, the court may so order. Subdivision (f) was added to clarify that in extraordinary proceedings to review lower tribunal action this rule, and not Florida Rule of Civil Procedure 1.630, applies and to specify the duties of the clerk in such proceedings, and to provide a mechanism for alerting the clerk to the necessity of following these procedures. If the proceeding before the circuit court is or may be evidentiary in nature, then the procedures of the Florida Rules of Civil Procedure should be followed. 1999 Amendment. Page limits were added to impose text limitations on petitions, responses and replies consistent with the text limitations applicable to briefs under Rule 9.210. Court Commentary 2000. As to computer-generated petitions, responses, and replies, strict font requirements were imposed in subdivision (l) for at least three reasons: First and foremost, appellate petitions, responses, and replies are public records that the people have a right to inspect. The clear policy of the Florida Supreme Court is that advances in technology should benefit the people whenever possible by lowering financial and physical barriers to public record inspection. The Court’s eventual goal is to make all public records widely and readily available, especially via the Internet. Unlike paper documents, electronic documents on the Internet will not display properly on all computers if they are set in fonts that are unusual. In some instances, such electronic documents may even be unreadable. Thus, the Court adopted the policy that all computer-generated appellate petitions, responses, and replies be filed in one of two fonts—either Times New Roman 14-point or Courier New 12-point—that are commonplace on computers with Internet connections. This step will help ensure that the right to inspect public records on the Internet will be genuinely available to the largest number of people. Second, Florida’s court system as a whole is working toward the day when electronic filing of all court documents will be an everyday reality. Though the technology involved in electronic filing is changing rapidly, it is clear that the Internet is the single most significant factor influencing the development of this technology. Electronic filing must be compatible with Internet standards as they evolve over time. It is imperative for the legal profession to become accustomed to using electronic document formats that are most consistent with the Internet. Third, the proliferation of vast new varieties of fonts in recent years poses a real threat that page-limitation rules can be circumvented through computerized typesetting. The only way to prevent this is to establish an enforceable rule on standards for font use. The subject font requirements are most consistent with this purpose and the other two purposes noted above. Subdivision (l) was also amended to require that immediately after the certificate of service in computer-generated petitions, responses, and replies, counsel (or the party if unrepresented) shall sign a certificate of compliance with the font standards set forth in this rule for computergenerated petitions, responses, and replies.
APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES
(a) Applicability. This rule applies to those proceedings that (1) invoke the appeal jurisdiction of the courts described in rules 9.030(a)(1), (b)(1)(A), and (c)(1)(A); (2) seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code; (3) seek review of administrative action described in rules 9.030(b)(1)(C) and (c)(1)(C); and (4) seek review of orders granting a new trial in jury and non-jury civil and criminal cases described in rules 9.130(a)(4) and 9.140(c)(1)(C). (b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing 2 copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. (c) Exception; Administrative Action. In an appeal to review final orders of lower administrative tribunals, the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and file a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the court. (d) Notice of Appeal. The notice of appeal shall be substantially in the form prescribed by rule 9.900(a). The caption shall contain the name of the lower tribunal, the name and designation of at least 1 party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. Except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice together with any order entered on a timely motion postponing rendition of the order or orders appealed. (e) Record. Within 50 days of filing the notice, the clerk shall prepare the record prescribed by rule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the clerk shall transmit the record to the court. (f) Briefs. Appellant’s initial brief shall be served within 70 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210. (g) Cross-Appeal. An appellee may cross-appeal by serving a notice within 10 days of service of the appellant’s notice or within the time prescribed in subdivision (b) of this rule, whichever is later. No filing fee shall be required for a cross-appeal. (h) Scope of Review. The court may review any ruling or matter occurring before filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order. (i) Exception; Bond Validation Proceedings. If the appeal is from an order in a proceeding to validate bonds or certificates of indebtedness, the record shall not be transmitted unless ordered by the supreme court. Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210. (j) Exception; Appeal Proceedings from District Courts of Appeal. If the appeal is from an order of a district court of appeal, the clerk shall transmit the record to the court within 60 days of filing the notice. Appellant’s initial brief shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210. (k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of
rendition. (l) Premature Appeals. If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order. (m) Exception; Insurance Coverage Appeals. Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130. (n) Exception, Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy. If an unmarried minor or another person on her behalf appeals an order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, the clerk of the lower tribunal shall prepare and transmit the record as described in rule 9.200(d) within 2 days from the filing of the notice of appeal. The district court of appeal shall render its decision on the appeal as expeditiously as possible and no later than 10 days from the filing of the notice of appeal. Briefs or oral argument may be ordered at the discretion of the district court of appeal. The minor may move for leave to file a brief and may request oral argument. If no decision is rendered within the foregoing time period, the order shall be deemed reversed, the petition shall be deemed granted, and the clerk shall place a certificate to this effect in the file and provide the minor with a certified copy of the certificate. The appeal and all proceedings thereon shall be confidential so that the minor shall remain anonymous. The file shall remain sealed unless otherwise ordered by the court. Should the dismissal of the petition be reversed on appeal, the clerk shall furnish the petitioner with a certified copy of the decision or the clerk’s certificate for delivery to the minor’s physician. No filing fee shall be required for any part of an appeal of the dismissal of a petition for a waiver of parental notice of termination of pregnancy.
Committee Notes 1977 Amendment. This rule replaces former rules 3.1, 3.5, 4.1, 4.3, 4.4, and 4.7. It applies when (1) a final order has been entered by a court or administrative agency; (2) a motion for a new trial in a jury case is granted; or (3) a motion for rehearing in a non-jury case is granted and the lower tribunal orders new testimony. It should be noted that certain other non-final orders entered after the final order are reviewable under the procedure set forth in rule 9.130. This rule does not apply to review proceedings in such cases. Except to the extent of conflict with rule 9.140 governing appeals in criminal cases, this rule governs: (1) appeals as of right to the supreme court; (2) certiorari proceedings before the supreme court seeking direct review of administrative action (for example, Industrial Relations Commission and Public Service Commission); (3) appeals as of right to a district court of appeal, including petitions for review of administrative action under the Administrative Procedure Act, section 120.68, Florida Statutes (Supp. 1976); (4) appeals as of right to a circuit court, including review of administrative action if provided by law. This rule is intended to clarify the procedure for review of orders granting a new trial. Rules 9.130(a)(4) and 9.140(c)(1)(C) authorize the appeal of orders granting a motion for new trial. Those rules supersede Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla. 1974), and are consistent with the decision there. Under subdivision (h) of this rule the scope of review of the court is not necessarily limited to the order granting a new trial. The supreme court has held that “appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible.” Bowen v. Willard, 340 So.2d 110, 112 (Fla. 1976). This rule implements that decision. Subdivisions (b) and (c) establish the procedure for commencing an appeal proceeding. Within 30 days of the rendition of the final order the appellant must file 2 copies of the notice of appeal, accompanied by the appropriate fees, with the clerk of the lower tribunal; except that if review of administrative action is sought, 1 copy of the notice and the applicable fees must be filed in the court. Failure to file any notice within the 30day period constitutes an irremediable jurisdictional defect, but the second copy and fees may be filed after the 30-day period, subject to sanctions imposed by the court. See Williams v. State, 324 So.2d 74 (Fla. 1975); Fla. R. App. P. 9.040(h). Subdivision (d) sets forth the contents of the notice and eliminates the requirement of the former rule that the notice show the place of recordation of the order to be reviewed. The rule requires substantial compliance with the form approved by the supreme court. The date of rendition of the order for which review is sought must appear on the face of the notice. See the definition of “rendition” in Florida Rule of Appellate Procedure 9.020, and see the judicial construction of “rendition” for an administrative rule in Florida Admin. Comm’n v. Judges of the District Court, 351 So.2d 712 (Fla. 1977), on review of Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1976). This requirement is intended to allow the clerk of the court to determine the timeliness of the notice from its face. The advisory committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.
This rule works significant changes in the review of final administrative action. The former rules required that a traditional petition for the writ of certiorari be filed if supreme court review was appropriate, and the practice under the Administrative Procedure Act, section 120.68, Florida Statutes (Supp. 1976), has been for the “petition for review” to be substantially similar to a petition for the writ of certiorari. See Yamaha Int’l Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975). This rule eliminates the need for true petitions in such cases. Instead, a simple notice is filed, to be followed later by briefs. It is intended that the notice constitute the petition required in section 120.68(2), Florida Statutes (Supp. 1976). There is no conflict with the statute because the substance of the review proceeding remains controlled by the statute, and the legislature directed that review be under the procedures set forth in these rules. Because it is a requirement of rendition that an order be written and filed, this rule supersedes Shevin ex rel. State v. Public Service Comm’n, 333 So.2d 9 (Fla. 1976), and School Bd. v. Malbon, 341 So.2d 523 (Fla. 2d DCA 1977), to the extent that those decisions assume that reduction of an order to writing is unnecessary for judicial review. This rule is not intended to affect the discretionary nature of direct supreme court review of administrative action taken under the certiorari jurisdiction of that court set forth in article V, section 3(b)(3), Florida Constitution. Such proceedings remain in certiorari with the only change being to replace wasteful, repetitive petitions for the writ of certiorari with concise notices followed at a later date by briefs. The parties to such actions should be designated as “petitioner” and “respondent” despite the use of the terms “appellant” and “appellee” in this rule. See commentary, Fla. R. App. P. 9.020. Subdivisions (e), (f), and (g) set the times for preparation of the record, serving copies of the index on the parties, serving briefs, and serving notices of cross-appeal. Provision for cross-appeal notices has been made to replace the cross-assignments of error eliminated by these rules. In certiorari proceedings governed by this rule the term “cross-appeal” should be read as equivalent to “cross-petition.” It should be noted that if time is measured by service, rule 9.420(b) requires filing to be made before service or immediately thereafter. Subdivision (h) permits a party to file a single notice of appeal if a single proceeding in the lower tribunal, whether criminal or civil, results in more than 1 final judgment and an appeal of more than 1 is sought. This rule is intended to further the policies underlying the decisions of the supreme court in Scheel v. Advance Marketing Consultants, Inc., 277 So.2d 773 (Fla. 1973), and Hollimon v. State, 232 So.2d 394 (Fla. 1970). This rule does not authorize the appeal of multiple final judgments unless otherwise proper as to each. If a prematurely filed notice is held in abeyance in accordance with Williams v. State, 324 So.2d 74 (Fla. 1975), the date of filing is intended to be the date the notice becomes effective. Subdivision (i) provides an expedited procedure in appeals as of right to the supreme court in bond validation proceedings. An appendix is mandatory. Subdivision (j) provides for an expedited procedure in appeals as of right to the supreme court from an order of a district court of appeal. 1980 Amendment. The rule has been amended to incorporate changes in rule 9.030 and to reflect the abolition of supreme court jurisdiction to review, if provided by general law, final orders of trial courts imposing sentences of life imprisonment. The reference indicated (2) in the second paragraph of this committee note for 1977 amendment should be disregarded. See amended rule 9.030(a)(1)(B)(ii) and accompanying committee note. 1984 Amendment. Subdivision (k) was added to remedy a pitfall in the application of case law under Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla. 1974). Appeals may now be taken immediately or delayed until the end of the entire case, under the rationale of Mendez. 1992 Amendment. Subdivision (d) was amended to require that the appellant, except in criminal cases, attach to its notice of appeal a conformed copy of any orders designated in the notice of appeal, along with any orders on motions that postponed the rendition of orders appealed. This amendment is designed to assist the clerk in determining the nature and type of order being appealed and the timeliness of any such appeal. Subdivision (m) was added to clarify the effect of a notice of appeal filed by a party before the lower court renders a final appealable order. Under this subdivision, such a notice of appeal is subject to dismissal as premature, but a final order rendered before the dismissal of the appeal will vest the appellate court with jurisdiction to review that final order. It further provides that the appellate court may relinquish jurisdiction or otherwise allow the lower court to render such a final order before dismissal of the appeal. If the only motion that is delaying rendition has been filed by the party filing the notice of appeal, under rule 9.020(g)(3), such motion is deemed abandoned and the final order is deemed rendered by the filing of a notice of appeal. 1996 Amendment. The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged. Subdivision (c) was amended to reflect that in appeals of administrative orders, the appellate court filing fees should be filed in the appellate court, not the administrative tribunal. Subdivision (n) was added by the committee in response to the opinion in Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla. 1996), suggesting
that the Appellate Court Rules Committee consider an appropriate method for providing expedited review of these cases to avoid unnecessary delays in the final resolution of the underlying actions. Expedited review in the manner provided in rule 9.130 is available for such judgments in cases where a claim against the insured is pending and early resolution of the coverage issue is in the best interest of the parties. The notice of appeal should identify whether a party is seeking review pursuant to the procedure provided in this rule or in rule 9.130. 2006 Amendment. Rule 9.110(n) has been amended to clarify that the word “clerk” in the first sentence of the rule refers to the clerk of the lower tribunal. The amendment also permits the minor to ask for leave to file a brief or to request oral argument. The amendment clarifies that the district court does not grant the minor’s petition, but rather may reverse the circuit court’s dismissal of the petition. Court Commentary 2003 Amendment. Subdivision (l) was deleted to reflect the holding in North Florida Women’s Health & Counseling Services, Inc. v. State, 28 Fla. L. Weekly S549 (Fla. July 10, 2003).
DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL
(a) Applicability. This rule applies to those proceedings that invoke the discretionary jurisdiction of the supreme court described in rule 9.030(a)(2)(A). (b) Commencement. The jurisdiction of the supreme court described in rule 9.030(a)(2)(A) shall be invoked by filing 2 copies of a notice, accompanied by the filing fees prescribed by law, with the clerk of the district court of appeal within 30 days of rendition of the order to be reviewed. (c) Notice. The notice shall be substantially in the form prescribed by rule 9.900. The caption shall contain the name of the lower tribunal, the name and designation of at least 1 party on each side, and the case number in the lower tribunal. The notice shall contain the date of rendition of the order to be reviewed and the basis for invoking the jurisdiction of the court. (d) Briefs on Jurisdiction. Petitioner’s brief, limited solely to the issue of the supreme court’s jurisdiction and accompanied by an appendix containing only a conformed copy of the decision of the district court of appeal, shall be served within 10 days of filing the notice. Respondent’s brief on jurisdiction shall be served within 20 days after service of petitioner’s brief. Formal requirements for both briefs are specified in rule 9.210. No reply brief shall be permitted. If jurisdiction is invoked under rule 9.030(a)(2)(A)(v) (certifications of questions of great public importance by the district courts to the supreme court), no briefs on jurisdiction shall be filed. (e) Accepting or Postponing Decision on Jurisdiction; Record. If the supreme court accepts or postpones decision on jurisdiction, the court shall so order and advise the parties and the clerk of the district court of appeal. Within 60 days thereafter or such other time set by the court, the clerk shall transmit the record. (f) Briefs on Merits. Within 20 days of rendition of the order accepting or postponing decision on jurisdiction, the petitioner shall serve the initial brief on the merits, accompanied by an appendix that must include a conformed copy of the decision of the district court of appeal. Additional briefs shall be served as prescribed by rule 9.210.
Committee Notes 1977 Amendment. This rule replaces former rule 4.5(c) and governs all certiorari proceedings to review final decisions of the district courts. Certiorari proceedings to review interlocutory orders of the district courts if supreme court jurisdiction exists under article V, section 3(b)(3), Florida Constitution are governed by rule 9.100. Subdivision (b) sets forth the manner in which certiorari proceedings in the supreme court are to be commenced. Petitions for the writ are abolished and replaced by a simple notice to be followed by briefs. Two copies of the notice, which must substantially comply with the form approved by the supreme court, are to be filed with the clerk of the district court within 30 days of rendition along with the requisite fees. Failure to timely file the fees is not jurisdictional. Subdivision (c) sets forth the contents of the notice. The requirement that the notice state the date of rendition, as defined in rule 9.020, is intended to permit the clerk of the court to determine timeliness from the face of the notice. The statement of the basis for jurisdiction should be a concise reference to whether the order sought to be reviewed (1) conflicts with other Florida appellate decisions; (2) affects a class of
constitutional or state officers; or (3) involves a question of great public interest certified by the district court. Subdivision (d) establishes the time for filing jurisdictional briefs and prescribes their content. If supreme court jurisdiction is based on certification of a question of great public interest, no jurisdictional briefs are permitted. Briefs on the merits in such cases are to be prepared in the same manner as in other cases. Briefs on the merits are to be served within the time provided after the court has ruled that it will accept jurisdiction or has ruled that it will postpone decision on jurisdiction. The jurisdictional brief should be a short, concise statement of the grounds for invoking jurisdiction and the necessary facts. It is not appropriate to argue the merits of the substantive issues involved in the case or discuss any matters not relevant to the threshold jurisdictional issue. The petitioner may wish to include a very short statement of why the supreme court should exercise its discretion and entertain the case on the merits if it finds it does have certiorari jurisdiction. An appendix must be filed containing a conformed copy of the decision of the district court. If the decision of the district court was without opinion, or otherwise does not set forth the basis of decision with sufficient clarity to enable the supreme court to determine whether grounds for jurisdiction exist, a conformed copy of the order of the trial court should also be included in the appendix. Subdivisions (e) and (f) provide that within 60 days of the date of the order accepting jurisdiction, or postponing decision on jurisdiction, the clerk of the district court must transmit the record to the court. The petitioner has 20 days from the date of the order to serve the initial brief on the merits. Other briefs may then be served in accordance with rule 9.210. Briefs that are served must be filed in accordance with rule 9.420. It should be noted that the automatic stay provided by former rule 4.5(c)(6) has been abolished because it encouraged the filing of frivolous petitions and was regularly abused. A stay pending review may be obtained under rule 9.310. If a stay has been ordered pending appeal to a district court, it remains effective under rule 9.310(e) unless the mandate issues or the district court vacates it. The advisory committee was of the view that the district courts should permit such stays only when essential. Factors to be considered are the likelihood that jurisdiction will be accepted by the supreme court, the likelihood of ultimate success on the merits, the likelihood of harm if no stay is granted, and the remediable quality of any such harm. 1980 Amendment. The rule has been amended to reflect the 1980 revisions to article V, section 3, Florida Constitution creating the additional categories of certifications by the district courts to the supreme court enumerated in rule 9.030(a)(2)(A). District court decisions that (a) expressly declare valid a state statute, (b) expressly construe a provision of the state or federal constitution, (c) expressly affect a class of constitutional or state officers, (d) expressly and directly conflict with a decision of another district court or the supreme court on the same point of law, (e) pass upon a question certified to be of great public importance, or (f) are certified to be in direct conflict with decisions of other district courts, are reviewed according to the procedures set forth in this rule. No jurisdictional briefs are permitted if jurisdiction is based on certification of a question of great public importance or certification that the decision is in direct conflict with a decision of another district court. The mandatory appendix must contain a copy of the district court decision sought to be reviewed and should be prepared in accordance with rule 9.220. Supreme court review of trial court orders and judgments certified by the district court under rule 9.030(a)(2)(B) is governed by the procedures set forth in rule 9.125. Reply briefs from petitioners are prohibited, and the court will decide whether to accept the case for review solely on the basis of petitioner’s initial and respondent’s responsive jurisdictional briefs. 1992 Amendment. Subdivision (d) was amended to provide that jurisdictional briefs must conform to the same requirements set forth in rule 9.210.
REVIEW OF TRIAL COURT ORDERS AND JUDGMENTS CERTIFIED BY THE DISTRICT COURTS OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT
(a) Applicability. This rule applies to any order or judgment of a trial court that has been certified by the district court of appeal to require immediate resolution by the supreme court because the issues pending in the district court are of great public importance or have a great effect on the proper administration of justice throughout the state. The district court of appeal may make such certification on its own motion or on suggestion by a party. (b) Commencement. The jurisdiction of the supreme court is invoked on rendition of the certificate by the district court of appeal. (c) Suggestion. Any party may file with the district court and serve on the parties a suggestion that the order to be reviewed should be certified by the district court to the supreme court. The suggestion shall be substantially in the
form prescribed by this rule and shall be filed within 10 days from the filing of the notice of appeal. (d) Response. Any party may file a response within 5 days of the service of the suggestion. (e) Form. The suggestion shall be limited to 5 pages and shall contain all of the following elements: (1) A statement of why the appeal requires immediate resolution by the supreme court. (2) A statement of why the appeal (A) is of great public importance, or (B) will have a great effect on the proper administration of justice throughout the state. (3) A certificate signed by the attorney stating: I express a belief, based on a reasoned and studied professional judgment, that this appeal requires immediate resolution by the supreme court and (a) is of great public importance, or (b) will have a great effect on the administration of justice throughout the state. /s/
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. (4) An appendix containing a conformed copy of the order to be reviewed. (f) Effect of Suggestion. The district court shall not be required to rule on the suggestion and neither the filing of a suggestion nor the rendition by the district court of its certificate shall alter the applicable time limitations or place of filing. If an order is rendered granting or denying certification, no rehearing shall be permitted. (g) Procedure When Supreme Court Accepts Jurisdiction. The jurisdiction of the supreme court attaches on rendition of the order accepting jurisdiction. If the supreme court accepts jurisdiction, it shall so order and advise the parties, the clerk of the district court, and the clerk of the lower tribunal. The clerk of the district court shall transfer the record in the case to the supreme court within 10 days thereafter. The time limitations of the applicable jurisdictional rule will continue in effect, except that all papers formerly required to be filed in the district court shall be filed in the supreme court.
Committee Notes 1980 Amendment. This rule is entirely new and governs all discretionary proceedings to review trial court orders or judgments that have been certified by the district court under rule 9.030(a)(2)(B) to require immediate resolution by the supreme court and to be of great public importance or to have a great effect on the proper administration of justice throughout the state. Final and non-final orders are covered by this rule. Discretionary review of other district court decisions if supreme court jurisdiction exists under rule 9.030(a)(2)(A) is governed by rule 9.120. Subdivision (b) makes clear that certification by the district court is self-executing. Subdivision (c) sets forth the manner in which a party may file a suggestion that the order to be reviewed should be certified by the district court to the supreme court and requires the suggestion be filed within 10 days from the filing of the notice of appeal. It is contemplated that suggestions under this rule will be rare. A suggestion should be filed only if, under the peculiar circumstances of a case, all the elements contained in subdivision (e) of the rule are present.
Subdivision (d) provides that any other party may file a response to a suggestion within 5 days of the service of the suggestion. Subdivision (e) provides for the form of the suggestion. All suggestions must be substantially in this form. The suggestion is limited to 5 pages and must contain (1) a statement of why the appeal requires immediate resolution by the supreme court, and (2) a statement of why the appeal either is of great public importance or will have a great effect on the proper administration of justice throughout the state. The suggestion must be accompanied by an appendix containing a copy of the order to be reviewed. The suggestion also must include a certificate signed by the attorney in the form appearing in the rule. To ensure that no proceeding is delayed because of this rule, subdivisions (f) and (g) provide that the filing of a suggestion will not alter the applicable time limitations or the place of filing. The district court shall not be required to rule on a suggestion. The parties should follow the time limitations contained in the rule through which jurisdiction of the district court was invoked. See rules 9.100, 9.110, 9.130, and 9.140.
PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS
(a) Applicability. (1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100. (2) Appeals of non-final orders in criminal cases shall be as prescribed by rule 9.140. (3) Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine (i) (ii) (iii) (iv) (v) (vi) the jurisdiction of the person; the right to immediate possession of property; the right to immediate monetary relief or child custody in family law matters; the entitlement of a party to arbitration; that, as a matter of law, a party is not entitled to workers’ compensation immunity; that a class should be certified;
(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; or (viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes. (D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership. (4) Non-final orders entered after final order on motions that suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method
prescribed by this rule. (5) Orders entered on motions filed under Florida Rule of Civil Procedure 1.540, Small Claims Rule 7.190, Rule of Juvenile Procedure 8.270, and Florida Family Law Rule of Procedure 12.540 are reviewable by the method prescribed by this rule. (6) Orders that deny motions to certify a class may be reviewed by the method prescribed by this rule. (b) Commencement. The jurisdiction to seek review of orders described in subdivisions (a)(3)–(a)(6) shall be invoked by filing 2 copies of a notice, accompanied by the filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. (c) Notice. The notice, designated as a notice of appeal of non-final order, shall be substantially in the form prescribed by rule 9.900(c). Except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice. (d) Record. A record shall not be transmitted to the court unless ordered. (e) Briefs. Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 15 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210. (f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review. (g) Review on Full Appeal. This rule shall not preclude initial review of a non-final order on appeal from the final order in the cause. (h) Scope of Review. Multiple non-final orders that are listed in rule 9.130(a)(3) may be reviewed by a single notice if the notice is timely filed as to each such order.
Committee Notes 1977 Amendment. This rule replaces former rule 4.2 and substantially alters current practice. This rule applies to review of all non-final orders, except those entered in criminal cases, and those specifically governed by rules 9.100 and 9.110. The advisory committee was aware that the common law writ of certiorari is available at any time and did not intend to abolish that writ. However, because that writ provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that because the most urgent interlocutory orders are appealable under this rule, there will be very few cases in which common law certiorari will provide relief. See Taylor v. Board of Pub. Instruction, 131 So.2d 504 (Fla. 1st DCA 1961). Subdivision (a)(3) designates certain instances in which interlocutory appeals may be prosecuted under the procedures set forth in this rule. Under these rules there are no mandatory interlocutory appeals. This rule eliminates interlocutory appeals as a matter of right from all orders “formerly cognizable in equity,” and provides for review of certain interlocutory orders based on the necessity or desirability of expeditious review. Allowable interlocutory appeals from orders in actions formerly cognizable as civil actions are specified, and are essentially the same as under former rule 4.2. Item (A) permits review of orders concerning venue. Item (C)(i) has been limited to jurisdiction over the person because the writ of prohibition provides an adequate remedy in cases involving jurisdiction of the subject matter. Because the purpose of these items is to eliminate useless labor, the advisory committee is of the view that stays of proceedings in lower tribunals should be liberally granted if the interlocutory appeal involves venue or jurisdiction over the person. Because this rule only applies to civil cases, item (C)(ii) does not include within its ambit rulings on motions to suppress seized evidence in criminal cases. Item (C)(ii) is intended to apply whether the property involved is real or personal. It applies to such cases as condemnation suits in which a condemnor is permitted to take possession and title to real property in advance of final judgment. See ch. 74, Fla. Stat. (1975). Item (C)(iii) is intended to apply to such matters as temporary child custody or support, alimony, suit money, and attorneys’ fees. Item (C)(iv) allows appeals from interlocutory orders that determine liability in favor of a claimant. Subdivision (a)(4) grants a right of review if the lower tribunal grants a motion for new trial whether in a jury or non-jury case. The procedures set forth in rule 9.110, and not those set forth in this rule, apply in such cases. This rule has been phrased so that the granting of rehearing in a
non-jury case under Florida Rule of Civil Procedure 1.530 may not be the subject of an interlocutory appeal unless the trial judge orders the taking of evidence. Other non-final orders that postpone rendition are not reviewable in an independent proceeding. Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default. Subdivision (a)(5) grants a right of review of orders on motions seeking relief from a previous court order on the grounds of mistake, fraud, satisfaction of judgment, or other grounds listed in Florida Rule of Civil Procedure 1.540. Subdivision (a)(6) provides that interlocutory review is to be in the court that would have jurisdiction to review the final order in the cause as of the time of the interlocutory appeal. Subdivisions (b) and (c) state the manner for commencing an interlocutory appeal governed by this rule. Two copies of the notice must be filed with the clerk of the lower tribunal within 30 days of rendition of the order. Under rule 9.040(g) the notice and fee must be transmitted immediately to the court by the clerk of the lower tribunal. Subdivision (d) provides for transmittal of the record only on order of the court. Transmittal should be in accordance with instructions contained in the order. Subdivision (e) replaces former rule 4.2(e) and governs the service of briefs on interlocutory appeals. The time to serve the appellant’s brief has been reduced to 15 days so as to minimize interruption of lower tribunal proceedings. The brief must be accompanied by an appendix containing a conformed copy of the order to be reviewed and should also contain all relevant portions of the record. Subdivision (f) makes clear that unless a stay is granted under rule 9.310, the lower tribunal is only divested of jurisdiction to enter a final order disposing of the case. This follows the historical rule that trial courts are divested of jurisdiction only to the extent that their actions are under review by an appellate court. Thus, the lower tribunal has jurisdiction to proceed with matters not before the court. This rule is intended to resolve the confusion spawned by De la Portilla v. De la Portilla, 304 So.2d 116 (Fla. 1974), and its progeny. Subdivision (g) was embodied in former rule 4.2(a) and is intended to make clear that the failure to take an interlocutory appeal does not constitute a waiver of any sort on appeal of a final judgment, although an improper ruling might not then constitute prejudicial error warranting reversal. 1992 Amendment. Subdivisions (a)(3)(C)(vii) and (a)(6) were added to permit appeals from non-final orders that either granted or denied a party’s request that a class be certified. The committee was of the opinion that orders determining the nature of an action and the extent of the parties before the court were analogous to other orders reviewable under rule 9.130. Therefore, these 2 subdivisions were added to the other limited enumeration of orders appealable by the procedures established in this rule. Subdivision (a)(3)(D) was added by the committee in response to the decision in Twin Jay Chambers Partnership v. Suarez, 556 So.2d 781 (Fla. 2d DCA 1990). It was the opinion of the committee that orders that deny the appointment of receivers or terminate or refuse to terminate receiverships are of the same quality as those that grant the appointment of a receiver. Rather than base the appealability of such orders on subdivision (a)(3)(C)(ii), the committee felt it preferable to specifically identify those orders with respect to a receivership that were non-final orders subject to appeal by this rule. Subdivision (c) was amended to require the attachment of a conformed copy of the order or orders designated in the notice of appeal consistent with the amendment to rule 9.110(d). 1996 Amendment. The amendment to subdivision (a)(3)(C)(vi) moves the phrase “as a matter of law” from the end of the subdivision to its beginning. This is to resolve the confusion evidenced in Breakers Palm Beach v. Gloger, 646 So.2d 237 (Fla. 4th DCA 1994), City of Lake Mary v. Franklin, 668 So.2d 712 (Fla. 5th DCA 1996), and their progeny by clarifying that this subdivision was not intended to grant a right of nonfinal review if the lower tribunal denies a motion for summary judgment based on the existence of a material fact dispute. Subdivision (a)(3)(C)(viii) was added in response to the supreme court’s request in Tucker v. Resha, 648 So.2d 1187 (Fla. 1994). The court directed the committee to propose a new rule regarding procedures for appeal of orders denying immunity in federal civil rights cases consistent with federal procedure. Compare Johnson v. Jones, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), with Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The Florida Supreme Court held that such orders are “subject to interlocutory review to the extent that the order turns on an issue of law.” 2000 Amendment. The title to this rule was amended to reflect that some of the review proceedings specified in this rule may involve review of final orders. Subdivision (a)(1) was amended to reflect that the appellate jurisdiction of circuit courts is prescribed by general law and not by this rule, as clarified in Blore v. Fierro, 636 So.2d 1329 (Fla. 1994). Subdivision (a)(3)(C)(iv) allowing review of orders determining “the issue of liability in favor of a party seeking affirmative relief” was deleted so that such orders are not appealable until the conclusion of the case.
Subdivision (a)(7) was deleted because it is superseded by proposed rule 9.040(b)(2), which determines the appropriate court to review nonfinal orders after a change of venue.
APPEAL PROCEEDINGS IN CRIMINAL CASES
(a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule. (b) Appeals by Defendant. (1) Appeals Permitted. A defendant may appeal (A) a final judgment adjudicating guilt; (B) a final order withholding adjudication after a finding of guilt; (C) an order granting probation or community control, or both, whether or not guilt has been adjudicated; (D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853; (E) an unlawful or illegal sentence; (F) a sentence, if the appeal is required or permitted by general law; or (G) as otherwise provided by general law. (2) Guilty or Nolo Contendere Pleas. (A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows: (i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved. (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only a. the lower tribunal’s lack of subject matter jurisdiction; b. a violation of the plea agreement, if preserved by a motion to withdraw plea; c. an involuntary plea, if preserved by a motion to withdraw plea; d. a sentencing error, if preserved; or e. as otherwise provided by law. (B) Record. (i) Except for appeals under subdivision (b)(2)(A)(i) of this rule, the record for appeals involving a plea of guilty or nolo contendere shall be limited to:
a. all indictments, informations, affidavits of violation of probation or community control, and other charging documents; b. the plea and sentencing hearing transcripts; c. any written plea agreements; d. any judgments, sentences, scoresheets, motions, and orders to correct or modify sentences, orders imposing, modifying, or revoking probation or community control, orders assessing costs, fees, fines, or restitution against the defendant, and any other documents relating to sentencing; e. any motion to withdraw plea and order thereon; f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk, and designation to the court reporter. (ii) Upon good cause shown, the court, or the lower tribunal before the record is transmitted, may expand the record. (3) Commencement. The defendant shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence. Copies shall be served on the state attorney and attorney general. (4) Cross-Appeal. A defendant may cross-appeal by serving a notice within 10 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Review of cross-appeals before trial is limited to related issues resolved in the same order being appealed. (c) Appeals by the State. (1) Appeals Permitted. The state may appeal an order (A) dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release; (B) suppressing before trial confessions, admissions, or evidence obtained by search and seizure; (C) granting a new trial; (D) arresting judgment; (E) granting a motion for judgment of acquittal after a jury verdict; (F) discharging a defendant under Florida Rule of Criminal Procedure 3.191; (G) discharging a prisoner on habeas corpus; (H) finding a defendant incompetent or insane; (I) finding a defendant mentally retarded under Florida Rule of Criminal Procedure 3.203;
(J) granting relief under Florida Rule of Criminal Procedure 3.853; (K) ruling on a question of law if a convicted defendant appeals the judgment of conviction; (L) withholding adjudication of guilt in violation of general law; (M) imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines; (N) imposing a sentence outside the range recommended by the sentencing guidelines; (O) denying restitution; or (P) as otherwise provided by general law for final orders. (2) Non-Final Orders. The state as provided by general law may appeal to the circuit court non-final orders rendered in the county court. (3) Commencement. The state shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the state under rule 9.140(c)(1)(J), the state’s notice of cross-appeal shall be filed within 10 days of service of defendant’s notice or service of an order on a motion pursuant to rule 3.800(b)(2). Copies shall be served on the defendant and the attorney of record. An appeal by the state shall stay further proceedings in the lower tribunal only by order of the lower tribunal. (d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State. (1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed: (A) a notice of appeal or cross-appeal has been filed on behalf of the defendant or the state; (B) a statement of judicial acts to be reviewed has been filed if a transcript will require the expenditure of public funds; (C) the defendant’s directions to the clerk have been filed, if necessary; (D) designations to the court reporter have been filed for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and (E) in publicly funded defense and state appeals, the lower tribunal has appointed the public defender for the local circuit court, who shall initially remain counsel for the appeal until the record is transmitted to the appellate court. In publicly funded state appeals, defense counsel shall additionally file in the appellate court a copy of the order appointing the local public defender. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the appellate court, or defense counsel of record shall file a motion to withdraw in the appellate court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the appellate court shall be served on the attorney general (or
state attorney in appeals to the circuit court). (2) Orders allowing withdrawal of counsel are conditional and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error the lower tribunal is authorized to address during the pendency of the direct appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). (e) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b). (f) Record. (1) Service. The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal. (2) Transcripts. (A) If a defendant’s designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel, if possible) shall serve, within 10 days of filing the notice, a statement of judicial acts to be reviewed, and a designation to the court reporter requiring preparation of only so much of the proceedings as fairly supports the issue raised. (B) Either party may file motions in the lower tribunal to reduce or expand the transcripts. (C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties shall designate the court reporter to file with the clerk of the lower tribunal the original transcripts for the court and sufficient copies for the state and all indigent defendants. (D) Non-indigent defendants represented by counsel may designate the court reporter to prepare only original transcripts. Counsel adopting this procedure shall, within 5 days of receipt of the original transcripts from the court reporter, file the original transcripts along with securely bound copies for the state and all defendants. Counsel shall serve notice of the use of this procedure on the attorney general (or the state attorney in appeals to circuit court) and the clerk of the lower tribunal. Counsel shall attach a certificate to each copy certifying that it is an accurate and complete copy of the original transcript. When this procedure is used, the clerk of the lower tribunal upon conclusion of the appeal shall retain the original transcript for use as needed by the state in any collateral proceedings and shall not destroy the transcripts without the consent of the Office of the Attorney General. (E) In state appeals, the state shall designate the court reporter to prepare and file with the clerk of the lower tribunal the original transcripts and sufficient copies for all separately represented defendants. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule. (F) The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the court reporter to prepare the necessary copies of the original transcripts. (3) Retention of Documents. Unless otherwise ordered by the court, the clerk of the lower tribunal shall retain all original documents except the original transcripts designated for appeal which shall be included in the record transmitted to the court.
(4) Service of Copies. The clerk of the lower tribunal shall serve copies of the record to the court, attorney general (or state attorney in appeals to circuit court), and all counsel appointed to represent indigent defendants on appeal. The clerk of the lower tribunal shall simultaneously serve copies of the index to all non-indigent defendants and, upon their request, copies of the record or portions thereof at the cost prescribed by law. (5) Return of Record. Except in death penalty cases, the court shall return the record to the lower tribunal after final disposition of the appeal. (6) Supplemental Record for Motion to Correct Sentencing Error Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). (A) The clerk of circuit court shall automatically supplement the appellate record with any motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), any response, any resulting order, and any amended sentence. The clerk shall transmit the supplement to the appellate court within 5 days of the filing of the order ruling on the motion. If an order is not filed within 60 days from the filing of the motion, this time shall run from the expiration of the 60 day period, and the clerk shall supplement the record with the motion and a statement that no order was timely filed. (B) If any appellate counsel determines that a transcript of a proceeding relating to such a motion is required to review the sentencing issue, appellate counsel shall, within 5 days from the transmittal of the supplement described in subdivision (A), designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. A copy of the designation shall be filed with the appellate court. The procedure for this supplementation shall be in accordance with this subdivision, except that counsel is not required to file a revised statement of judicial acts to be reviewed, the court reporter shall deliver the transcript within 15 days, and the clerk shall supplement the record with the transcript within 5 days of its receipt. (g) Briefs. Initial briefs shall be served within 30 days of service of the record or designation of appointed counsel, whichever is later. Additional briefs shall be served as prescribed by rule 9.210. (h) Post-Trial Release. (1) Appeal by Defendant. The lower tribunal may hear a motion for post-trial release pending appeal before or after a notice is filed; provided that the defendant may not be released from custody until the notice is filed. (2) Appeal by State. An incarcerated defendant charged with a bailable offense shall on motion be released on the defendant’s own recognizance pending an appeal by the state, unless the lower tribunal for good cause stated in an order determines otherwise. (3) Denial of Post-Trial Release. All orders denying post-trial release shall set forth the factual basis on which the decision was made and the reasons therefor. (4) Review. Review of an order relating to post-trial release shall be by the court on motion. (i) Scope of Review. The court shall review all rulings and orders appearing in the record necessary to pass upon the grounds of an appeal. In the interest of justice, the court may grant any relief to which any party is entitled.
Committee Notes 1977 Amendment. This rule represents a substantial revision of the procedure in criminal appeals. Subdivision (a) makes clear the policy of these rules that procedures be standardized to the maximum extent possible. Criminal appeals are to be governed by the same rules as other cases, except for those matters unique to criminal law that are identified and controlled by this rule. Subdivision (b)(1) lists the only matters that may be appealed by a criminal defendant, and it is intended to supersede all other rules of practice
and procedure. This rule has no effect on either the availability of extraordinary writs otherwise within the jurisdiction of the court to grant, or the supreme court’s jurisdiction to entertain petitions for the constitutional writ of certiorari to review interlocutory orders. This rule also incorporates the holding in State v. Ashby, 245 So.2d 225 (Fla. 1971), and is intended to make clear that the reservation of the right to appeal a judgment based on the plea of no contest must be express and must identify the particular point of law being reserved; any issues not expressly reserved are waived. No direct appeal of a judgment based on a guilty plea is allowed. It was not intended that this rule affect the substantive law governing collateral review. Subdivision (b)(2) replaces former rule 6.2. Specific reference is made to rule 9.110(d) to emphasize that criminal appeals are to be prosecuted in substantially the same manner as other cases. Copies of the notice, however, must be served on both the state attorney and the attorney general. The time for taking an appeal has been made to run from the date judgment is rendered to 30 days after an order imposing sentence is rendered or otherwise reduced to writing. The former rule provided for appeal within 30 days of rendition of judgment or within 30 days of entry of sentence. The advisory committee debated the intent of the literal language of the former rule. Arguably, under the former rule an appeal could not be taken by a defendant during the “gap period” that occurs when sentencing is postponed more than 30 days after entry of judgment. The advisory committee concluded that no purpose was served by such an interpretation because the full case would be reviewable when the “gap” closed. This modification of the former rule promotes the policies underlying Williams v. State, 324 So.2d 74 (Fla. 1975), in which it was held that a notice of appeal prematurely filed should not be dismissed, but held in abeyance until it becomes effective. This rule does not specifically address the issue of whether full review is available if re-sentencing occurs on order of a court in a collateral proceeding. Such cases should be resolved in accordance with the underlying policies of these rules. Compare Wade v. State, 222 So.2d 434 (Fla. 2d DCA 1969), with Neary v. State, 285 So.2d 47 (Fla. 4th DCA 1973). If a defendant appeals a judgment of conviction of a capital offense before sentencing and sentencing is anticipated, the district court of appeal (as the court then with jurisdiction) should hold the case in abeyance until the sentence has been imposed. If the death penalty is imposed, the district court of appeal should transfer the case to the supreme court for review. See § 921.141(4), Fla. Stat. (1975); Fla. R. App. P. 9.040(b). Subdivision (b)(3) governs the service of briefs. Filing should be made in accordance with rule 9.420. Subdivision (c)(1) lists the only matters that may be appealed by the state, but it is not intended to affect the jurisdiction of the supreme court to entertain by certiorari interlocutory appeals governed by rule 9.100, or the jurisdiction of circuit courts to entertain interlocutory appeals of pretrial orders from the county courts. See State v. Smith, 260 So.2d 489 (Fla. 1972). No provision of this rule is intended to conflict with a defendant’s constitutional right not to be placed twice in jeopardy, and it should be interpreted accordingly. If there is an appeal under item (A), a motion for a stay of the lower tribunal proceeding should be liberally granted in cases in which there appears to be a substantial possibility that trial of any non-dismissed charges would bar prosecution of the dismissed charges if the dismissal were reversed, such as in cases involving the so-called “single transaction rule.” Item (E) refers to the popularly known “speedy trial rule,” and items (F), (G), and (H) track the balance of state appellate rights in section 924.07, Florida Statutes (1975). Subdivision (c)(2) parallels subdivision (b)(2) regarding appeals by defendants except that a maximum of 15 days is allowed for filing the notice. An appeal by the state stays further proceedings in the lower tribunal only if an order has been entered by the trial court. Subdivision (c)(3) governs the service of briefs. Subdivision (d) applies rule 9.200 to criminal appeals and sets forth the time for preparation and service of the record, and additional matters peculiar to criminal cases. It has been made mandatory that the original record be held by the lower tribunal to avoid loss and destruction of original papers while in transit. To meet the needs of appellate counsel for indigents, provision has been made for automatic transmittal of a copy of the record to the public defender appointed to represent an indigent defendant on appeal, which in any particular case may be the public defender either in the judicial circuit where the trial took place or in the judicial circuit wherein the appellate court is located. See § 27.51(4), Fla. Stat. (1975). Counsel for a non-indigent defendant may obtain a copy of the record at the cost prescribed by law. At the present time, section 28.24(13), Florida Statutes (1975), as amended by chapter 77-284, § 1, Laws of Florida, prescribes a cost of $1 per page. To conserve the public treasury, appeals by indigent defendants, and other criminal defendants in cases in which a free transcript is provided, have been specially treated. Only the essential portions of the transcript are to be prepared. The appellant must file a statement of the judicial acts to be reviewed on appeal and the parties are to file and serve designations of the relevant portions of the record. (This procedure emphasizes the obligation of trial counsel to cooperate with appellate counsel, if the two are different, in identifying alleged trial errors.) The statement is necessary to afford the appellee an opportunity to make a reasonable determination of the portions of the record required. The statement should be sufficiently definite to enable the opposing party to make that determination, but greater specificity is unnecessary. The statement of judicial acts contemplated by this rule is not intended to be the equivalent of assignments of error under former rule 3.5. Therefore, an error or inadequacy in the statement should not be relevant to the disposition of any case. In such circumstances, the appropriate procedure would be to supplement the record under rule 9.200(f) to cure any potential or actual prejudice. Either party may move in the lower tribunal to strike unnecessary portions before they are prepared or to expand the transcript. The ruling of the lower tribunal on such motions is reviewable by motion to the court under rule 9.200(f) if a party asserts additional portions are required. Subdivision (e) replaces former rule 6.15. Subdivision (e)(1) governs if an appeal is taken by a defendant and permits a motion to grant posttrial release pending appeal to be heard although a notice of appeal has not yet been filed. The lower tribunal may then grant the motion effective on the notice being filed. This rule is intended to eliminate practical difficulties that on occasion have frustrated the cause of justice, as in cases in which a defendant’s attorney has not prepared a notice of appeal in advance of judgment. Consideration of such motions shall be in accordance
with section 903.132, Florida Statutes (Supp. 1976), and Florida Rule of Criminal Procedure 3.691. This rule does not apply if the judgment is based on a guilty plea because no right to appeal such a conviction is recognized by these rules. Subdivision (e)(2) governs if the state takes an appeal and authorizes release of the defendant without bond, if charged with a bailable offense, unless the lower tribunal for good cause orders otherwise. The “good cause” standard was adopted to ensure that bond be required only in rare circumstances. The advisory committee was of the view that because the state generally will not be able to gain a conviction unless it prevails, the presumed innocent defendant should not be required to undergo incarceration without strong reasons, especially if a pre-trial appeal is involved. “Good cause” therefore includes such factors as the likelihood of success on appeal and the likelihood the defendant will leave the jurisdiction in light of the current status of the charges against the defendant. Subdivision (e)(3) retains the substance of former rules 6.15(b) and (c). The lower tribunal’s order must contain a statement of facts as well as the reasons for the action taken, in accordance with Younghans v. State, 90 So.2d 308 (Fla. 1956). Subdivision (e)(4) allows review only by motion so that no order regarding post-trial relief is reviewable unless jurisdiction has been vested in the court by the filing of a notice of appeal. It is intended that the amount of bail be reviewable for excessiveness. Subdivision (f) interacts with rule 9.110(h) to allow review of multiple judgments and sentences in 1 proceeding. Subdivision (g) sets forth the procedure to be followed if there is a summary denial without hearing of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. This rule does not limit the right to appeal a denial of such a motion after hearing under rule 9.140(b)(1)(C). 1980 Amendment. Although the substance of this rule has not been changed, the practitioner should note that references in the 1977 committee notes to supreme court jurisdiction to review non-final orders that would have been appealable if they had been final orders are obsolete because jurisdiction to review those orders no longer reposes in the supreme court. 1984 Amendment. Subdivision (b)(4) was added to give effect to the administrative order entered by the supreme court on May 6, 1981 (6 Fla. L. Weekly 336), which recognized that the procedures set forth in the rules for criminal appeals were inappropriate for capital cases. 1992 Amendment. Subdivision (b)(3) was amended to provide that, in cases in which public funds would be used to prepare the record on appeal, the attorney of record would not be allowed to withdraw until substitute counsel has been obtained or appointed. Subdivision (g) was amended to provide a specific procedure to be followed by the courts in considering appeals from summary denial of Florida Rule of Criminal Procedure 3.800(a) motions. Because such motions are in many respects comparable to Florida Rule of Criminal Procedure 3.850 motions, it was decided to use the available format already created by existing subdivision (g) of this rule. Because a Florida Rule of Criminal Procedure 3.800(a) motion does not have the same detailed requirements as does a Florida Rule of Criminal Procedure 3.850 motion, this subdivision also was amended to require the transmittal of any attachments to the motions in the lower court. 1996 Amendment. The 1996 amendments are intended to consolidate and clarify the rules to reflect current law unless otherwise specified. Rule 9.140(b)(2)(B) was added to accurately reflect the limited right of direct appeal after a plea of guilty or nolo contendere. See Robinson v. State, 373 So.2d 898 (Fla. 1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). New subdivision (b)(4) reflects Lopez v. State, 638 So.2d 931 (Fla. 1994). A defendant may cross-appeal as provided, but if the defendant chooses not to do so, the defendant retains the right to raise any properly preserved issue on plenary appeal. It is the committee’s intention that the 10-day period for filing notice of the cross-appeal should be interpreted in the same manner as in civil cases under rule 9.110(g). Rule 9.140(b)(6)(E) adopts Florida Rule of Criminal Procedure 3.851(b)(2) and is intended to supersede that rule. See Fla. R. Jud. Admin. 2.135. The rule also makes clear that the time periods in rule 9.140(j) do not apply to death penalty cases. The revised rules 9.140(e)(2)(D) and 9.140(e)(2)(E) are intended to supersede Brown v. State, 639 So.2d 634 (Fla. 5th DCA 1994), and allow non-indigent defendants represented by counsel, and the state, to order just the original transcript from the court reporter and to make copies. However, the original and copies for all other parties must then be served on the clerk of the lower tribunal for inclusion in the record. The revised rule 9.140(e)(2)(F) also allows chief judges for each circuit to promulgate an administrative order requiring the lower tribunal clerk’s office to make copies of the transcript when the defendant is indigent. In the absence of such an administrative order, the court reporter will furnish an original and copies for all parties in indigent appeals. Rule 9.140(j)(3) imposes a two-year time limit on proceedings to obtain delayed appellate review based on either the ineffectiveness of counsel on a prior appeal or the failure to timely initiate an appeal by appointed counsel. The former was previously applied for by a petition for writ of habeas corpus in the appellate court and the latter by motion pursuant to Florida Rule of Criminal Procedure 3.850 in the trial court. Because both of these remedies did not require a filing fee, it is contemplated that no fee will be required for the filing of petitions under this rule. Subdivision (j)(3)(B) allows two years “after the conviction becomes final.” For purposes of the subdivision a conviction becomes final after issuance of the mandate or other final process of the highest court to which direct review is taken, including review in the Florida Supreme Court and United States Supreme Court. Any collateral review shall not stay the time period under this subdivision. Subdivision (j)(3)(C) under this rule makes
clear that defendants who were convicted before the effective date of the rule will not have their rights retroactively extinguished but will be subject to the time limits as calculated from the effective date of the rule unless the time has already commenced to run under rule 3.850. Rule 9.140(j)(5) was added to provide a uniform procedure for requesting belated appeal and to supersede State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla. 1990). This decision resulted in there being two procedures for requesting belated appeal: Florida Rule of Criminal Procedure 3.850 when the criminal appeal was frustrated by ineffective assistance of trial counsel, id.; and habeas corpus for everything else. See Scalf v. Singletary, 589 So.2d 986 (Fla. 2d DCA 1991). Experience showed that filing in the appellate court was more efficient. This rule is intended to reinstate the procedure as it existed prior to State v. District Court of Appeal, First District. See Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969); State v. Meyer, 430 So.2d 440 (Fla. 1983). In the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate court may appoint a commissioner to make a report and recommendation. 2000 Amendment. Subdivision (b)(1)(B) was added to reflect the holding of State v. Schultz, 720 So.2d 247 (Fla. 1998). The amendment to renumber subdivision (b)(1)(D), regarding appeals from orders denying relief under Florida Rules of Criminal Procedure 3.800(a) or 3.850, reflects current practice. The committee added language to subdivision (b)(6)(B) to require court reporters to file transcripts on computer disks in death penalty cases. Death penalty transcripts typically are lengthy, and many persons review and use them over the years. In these cases, filing lengthy transcripts on computer disks makes them easier to use for all parties and increases their longevity. The committee deleted the last sentence of subdivision (b)(6)(E) because its substance is now included in rule 9.141(a). The committee also amended and transferred subdivisions (i) and (j) to rule 9.141 for the reasons specified in the committee note for that rule. 2005 Amendment. New subdivision (L) was added to (c)(1) in response to the Florida legislature’s enactment of section 775.08435(3), Florida Statutes (2004), which provides that “[t]he withholding of adjudication in violation of this section is subject to appellate review under chapter 924.” Court Commentary 1996. Rule 9.140 was substantially rewritten so as to harmonize with the Criminal Appeal Reform Act of 1996 (CS/HB 211). The reference to unlawful sentences in rule 9.140(b)(1)(D) and (c)(1)(J) means those sentences not meeting the definition of illegal under Davis v. State, 661 So.2d 1193 (Fla. 1995), but, nevertheless, subject to correction on direct appeal.
REVIEW PROCEEDINGS IN COLLATERAL OR POST-CONVICTION CRIMINAL CASES
(a) Death Penalty Cases. This rule does not apply to death penalty cases. (b) Appeals from Post-Conviction Proceedings Under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853. (1) Applicability of Civil Appellate Procedures. Appeal proceedings under this subdivision shall be as in civil cases, except as modified by this rule. (2) Summary Grant or Denial of Motion Without Evidentiary Hearing. (A) When a motion for post-conviction relief under rule 3.800(a), 3.850, or 3.853 is granted or denied without an evidentiary hearing, the clerk of the lower tribunal shall transmit to the court, as the record, copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal. (B) Unless directed otherwise by the court, the clerk of the lower tribunal shall not index or paginate the record or send copies of the index or record to the parties. (C) No briefs or oral argument shall be required, but any appellant’s brief shall be filed within 15 days of the filing of the notice of appeal. The court may request a response from the appellee before ruling. (D) On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to
no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief. (3) Grant or Denial of Motion after Evidentiary Hearing. (A) Transcription. In the absence of designations to the court reporter, the notice of appeal filed by an indigent pro se litigant in a rule 3.850 or 3. 853 appeal after an evidentiary hearing shall serve as the designation to the court reporter for the transcript of the evidentiary hearing. Within 5 days of receipt of the notice of appeal, the clerk of the lower tribunal shall request the appropriate court reporter to transcribe the evidentiary hearing and shall send the court reporter a copy of the notice, the date of the hearing to be transcribed, the name of the judge, and a copy of this rule. (B) Record. (i) When a motion for post-conviction relief under rule 3.850 or 3. 853 is granted or denied after an evidentiary hearing, the clerk of the lower tribunal shall index, paginate, and transmit to the court as the record, within 50 days of the filing of the notice of appeal, copies of the notice of appeal, motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, as well as the original transcript of the evidentiary hearing. (ii) Appellant may direct the clerk to include in the record any other documents that were before the lower tribunal at the hearing. If the clerk is directed to include in the record a previously prepared appellate record involving the appellant, the clerk need not reindex or repaginate it. (iii) The clerk of the lower tribunal shall serve copies of the record on the attorney general (or state attorney in appeals to the circuit court), all counsel appointed to represent indigent defendants on appeal, and any pro se indigent defendant. The clerk of the lower tribunal shall simultaneously serve copies of the index on all nonindigent defendants and, at their request, copies of the record or portions of it at the cost prescribed by law. (C) Briefs. Initial briefs shall be served within 30 days of service of the record or its index. Additional briefs shall be served as prescribed by rule 9.210. (c) Petitions Seeking Belated Appeal or Alleging Ineffective Assistance of Appellate Counsel. (1) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule. (2) Forum. Petitions seeking belated appeal or alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was or should have been taken. (3) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts (A) the date and nature of the lower tribunal’s order sought to be reviewed; (B) the name of the lower tribunal rendering the order; (C) the nature, disposition, and dates of all previous proceedings in the lower tribunal and, if any, in appellate courts; (D) if a previous petition was filed, the reason the claim in the present petition was not raised previously; (E) the nature of the relief sought; and (F) the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective
assistance of counsel or basis for entitlement to belated appeal, including in the case of a petition for belated appeal whether the petitioner requested counsel to proceed with the appeal. (4) Time Limits. (A) A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and (ii) should not have ascertained such facts by the exercise of reasonable diligence. (B) A petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. (C) Time periods under this subdivision shall not begin to run prior to January 1, 1997. (5) Procedure. (A) The petitioner shall serve copies of the petition on the attorney general and state attorney. (B) The court may by order identify any provision of this rule that the petition fails to satisfy and, pursuant to rule 9.040(d), allow the petitioner a specified time to serve an amended petition. (C) The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure. (D) An order granting a petition for belated appeal shall be filed with the lower tribunal and treated as the notice of appeal, if no previous notice has been filed.
Committee Notes 2000 Amendment. Rule 9.141 is a new rule governing review of collateral or post-conviction criminal cases. It covers topics formerly included in rules 9.140(i) and (j). The committee opted to transfer these subjects to a new rule, in part because rule 9.140 was becoming lengthy. In addition, review proceedings for collateral criminal cases are in some respects treated as civil appeals or as extraordinary writs, rather than criminal appeals under rule 9.140. Subdivision (a) clarifies that this rule does not apply to death penalty cases. The Supreme Court has its own procedures for these cases, and the committee did not attempt to codify them. Subdivision (b)(2) amends former rule 9.140(i) and addresses review of summary grants or denials of post-conviction motions under Florida Rules of Criminal Procedure 3.800(a) or 3.850. Amended language in subdivision (b)(2)(A) makes minor changes to the contents of the record in such cases. Subdivision (b)(2)(B) addresses a conflict between Summers v. State, 570 So.2d 990 (Fla. 1st DCA 1990), and Fleming v. State, 709 So.2d 135 (Fla. 2d DCA 1998), regarding indexing and pagination of records. The First District requires clerks to index and paginate the records, while the other district courts do not. The committee determined not to require indexing and pagination unless the court directs otherwise, thereby allowing individual courts to require indexing and pagination if they so desire. Subdivision (b)(2)(B) also provides that neither the state nor the defendant should get a copy of the record in these cases, because they should already have all of the relevant documents. Subdivision (b)(2)(D) reflects current case law that the court can reverse not only for an evidentiary hearing but also for other appropriate relief. Subdivision (b)(3) addresses review of grants or denials of post-conviction motions under rule 3.850 after an evidentiary hearing. Subdivision (b)(3)(A) provides for the preparation of a transcript if an indigent pro se litigant fails to request the court reporter to prepare it. The court cannot effectively carry out its duties without a transcript to review, and an indigent litigant will usually be entitled to preparation of the transcript and a copy of the record at no charge. See Colonel v. State, 723 So.2d 853 (Fla. 3d DCA 1998). The procedures in subdivisions (b)(3)(B) and (C) for preparation of the record and service of briefs are intended to be similar to those provided in rule 9.140 for direct appeals from judgments and sentences. Subdivision (c) is a slightly reorganized and clarified version of former rule 9.140(j). No substantive changes are intended.
PROCEDURES FOR REVIEW IN DEATH PENALTY CASES
(a) Procedure in Death Penalty Appeals. (1) Record. When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court. (2) Briefs; Transcripts. After the record is filed, the clerk will promptly establish a briefing schedule allowing the defendant 60 days from the date the record is filed, the state 45 days from the date the defendant’s brief is served, and the defendant 30 days from the date the state’s brief is served to serve their respective briefs. On appeals from orders ruling on applications for relief under Florida Rule of Criminal Procedure 3.851 or 3.853, and on resentencing matters, the schedules set forth in rule 9.140(g) will control. In addition to filing paper copies of transcripts, the court reporter shall file with the clerk of the lower tribunal, on clearly labeled computer disks in a format approved by the supreme court, sufficient copies of these transcripts for the clerk of the lower tribunal to include the disks in the record transmitted to the court and to the parties. (3) Sanctions. If any brief is delinquent, an order to show cause may issue under Florida Rule of Criminal Procedure 3.840, and sanctions may be imposed. (4) Oral Argument. Oral argument will be scheduled after the filing of the defendant’s reply brief. (5) Petitions for Extraordinary Relief. In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal’s order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851. (6) Scope of Review. In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief. (b) Petition Seeking Review of Nonfinal Orders in Death Penalty Postconviction Proceedings. (1) Applicability. This rule applies to proceedings that invoke the jurisdiction of the supreme court for review of nonfinal orders issued in postconviction proceedings following the imposition of the death penalty. (2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100 unless modified by this subdivision. (3) Commencement; Parties. (A) Jurisdiction of the supreme court shall be invoked by filing a petition with the clerk of the supreme court within 30 days of rendition of the nonfinal order to be reviewed. A copy of the petition shall be served on the opposing party and furnished to the judge who issued the order to be reviewed. (B) Either party to the death penalty postconviction proceedings may seek review under this rule. (4) Contents. The petition shall be in the form prescribed by rule 9.100, and shall contain (A) the basis for invoking the jurisdiction of the court; (B) the date and nature of the order sought to be reviewed;
(C) the name of the lower tribunal rendering the order; (D) the name, disposition, and dates of all previous trial, appellate, and postconviction proceedings relating to the conviction and death sentence that are the subject of the proceedings in which the order sought to be reviewed was entered; (E) the facts on which the petitioner relies, with references to the appropriate pages of the supporting appendix; (F) argument in support of the petition, including an explanation of why the order departs from the essential requirements of law and how the order may cause material injury for which there is no adequate remedy on appeal, and appropriate citations of authority; and (G) the nature of the relief sought. (5) Appendix. The petition shall be accompanied by an appendix, as prescribed by rule 9.220, which shall contain the portions of the record necessary for a determination of the issues presented. (6) Order to Show Cause. If the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. (7) Response. No response shall be permitted unless ordered by the court. (8) Reply. Within 20 days after service of the response or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length, and supplemental appendix. (9) Stay. (A) A stay of proceedings under this rule is not automatic; the party seeking a stay must petition the supreme court for a stay of proceedings. (B) During the pendency of a review of a nonfinal order, unless a stay is granted by the supreme court, the lower tribunal may proceed with all matters, except that the lower tribunal may not render a final order disposing of the cause pending review of the nonfinal order. (10) Other pleadings. The parties shall not file any other pleadings, motions, replies, or miscellaneous papers without leave of court. (11) Time Limitations. Seeking review under this rule shall not extend the time limitations in rule 3.851 or 3.852. RULE 9.145. APPEAL PROCEEDINGS IN JUVENILE DELINQUENCY CASES
(a) Applicability. Appeal proceedings in juvenile delinquency cases shall be as in rule 9.140 except as modified by this rule. (b) Appeals by Child. To the extent adversely affected, a child or any parent, legal guardian, or custodian of a child may appeal (1) an order of adjudication of delinquency or withholding adjudication of delinquency, or any disposition order entered thereon;
(2) orders entered after adjudication or withholding of adjudication of delinquency, including orders revoking or modifying the community control; (3) an illegal disposition; or (4) any other final order as provided by law. (c) Appeals by the State. (1) Appeals Permitted. The state may appeal an order (A) dismissing a petition for delinquency or any part of it, if the order is entered before the commencement of an adjudicatory hearing; (B) suppressing confessions, admissions, or evidence obtained by search and/or seizure before the adjudicatory hearing; (C) granting a new adjudicatory hearing; (D) arresting judgment; (E) discharging a child under Florida Rule of Juvenile Procedure 8.090; (F) ruling on a question of law if a child appeals an order of disposition; (G) constituting an illegal disposition; (H) discharging a child on habeas corpus; or (I) finding a child incompetent pursuant to the Florida Rules of Juvenile Procedure. (2) Non-Final State Appeals. If the state appeals a pre-adjudicatory hearing order of the trial court, the notice of appeal must be filed within 15 days of rendition of the order to be reviewed and before commencement of the adjudicatory hearing. (A) A child in detention whose case is stayed pending state appeal shall be released from detention pending the appeal if the child is charged with an offense that would be bailable if the child were charged as an adult, unless the lower tribunal for good cause stated in an order determines otherwise. The lower tribunal retains discretion to release from detention any child who is not otherwise entitled to release under the provisions of this rule. (B) If a child has been found incompetent to proceed, any order staying the proceedings on a state appeal shall have no effect on any order entered for the purpose of treatment. (d) References to Child. The appeal shall be entitled and docketed with the initials, but not the name, of the child and the court case number. All references to the child in briefs, other papers, and the decision of the court shall be by initials. (e) Confidentiality. All papers shall remain sealed in the office of the clerk of court when not in use by the court,
and shall not be open to inspection except by the parties and their counsel, or as otherwise ordered.
Committee Notes 1996 Adoption. Subdivision (c)(2) is intended to make clear that in non-final state appeals, the notice of appeal must be filed before commencement of the adjudicatory hearing. However, the notice of appeal must still be filed within 15 days of rendition of the order to be reviewed as provided by rule 9.140(c)(3). These two rules together provide that when an adjudicatory hearing occurs within 15 days or less of rendition of an order to be reviewed, the notice of appeal must be filed before commencement of the adjudicatory hearing. This rule is not intended to extend the 15 days allowed for filing the notice of appeal as provided by rule 9.140(c)(3). Subdivision (d) requires the parties to use initials in all references to the child in all briefs and other papers filed in the court in furtherance of the appeal. It does not require the deletion of the name of the child from pleadings or other papers transmitted to the court from the lower tribunal.
APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES
(a) Applicability. Appeal proceedings in juvenile dependency and termination of parental rights cases and cases involving families and children in need of services shall be as in civil cases except as modified by this rule. (b) Who May Appeal. Any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding affected by an order of the lower tribunal, or the appropriate state agency as provided by law may appeal to the appropriate court within the time and in the manner prescribed by these rules. (c) Stay of Proceedings. (1) Application. Except as provided by general law and in subdivision (c)(2) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief, after considering the welfare and best interest of the child. (2) Termination of Parental Rights. The taking of an appeal shall not operate as a stay in any case unless pursuant to an order of the court, except that a termination of parental rights order with placement of the child with a licensed child-placing agency or the Department of Children and Family Services for subsequent adoption shall be suspended while the appeal is pending, but the child shall continue in custody under the order until the appeal is decided. (d) Retention of Jurisdiction. Transmittal of the record to the appellate court does not remove the jurisdiction of the lower tribunal to conduct judicial reviews or other proceedings related to the health and welfare of the child pending appeal. (e) References to Child or Parents. When the parent or child is a party to the appeal, the appeal shall be docketed and any papers filed in the court shall be titled with the initials, but not the name, of the child or parent and the court case number. All references to the child or parent in briefs, other papers, and the decision of the court shall be by initials. (f) Confidentiality. All papers shall remain sealed in the office of the clerk of the court when not in use by the court, and shall not be open to inspection except by the parties and their counsel, or as otherwise ordered. (g) Expedited Review. The court shall give priority to appeals under this rule.
Committee Notes 1996 Adoption. The reference in subdivision (a) to cases involving families and children in need of services encompasses only those cases in which an order has been entered adjudicating a child or family in need of services under chapter 39, Florida Statutes. Subdivision (c) requires the parties to use initials in all references to the child and parents in all briefs and other papers filed in the court in furtherance of the appeal. It does not require the deletion of the names of the child and parents from pleadings and other papers transmitted to the
court from the lower tribunal. 2006 Amendment. The title to subdivision (b) was changed from “Appeals Permitted” to clarify that this rule addresses who may take an appeal in matters covered by this rule. The amendment is intended to approve the holding in D.K.B. v. Department of Children & Families, 890 So. 2d 1288 (Fla. 2d DCA 2005), that non-final orders in these matters may be appealed only if listed in rule 9.130.
DISCRETIONARY PROCEEDINGS TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS
(a) Applicability. On either its own motion or that of a party, the Supreme Court of the United States or a United States court of appeals may certify a question of law to the Supreme Court of Florida if the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida. (b) Certificate. The certificate shall contain the style of the case, a statement of the facts showing the nature of the cause and the circumstances out of which the questions of law arise, and the questions of law to be answered. The certificate shall be prepared as directed by the federal court. It shall be certified to the Supreme Court of Florida by the clerk of the federal court. (c) Record. The Supreme Court of Florida, in its discretion, may require copies of all or any portion of the record before the federal court to be filed if the record may be necessary to the determination of the cause. (d) Briefs. The brief of the party designated by the federal court as the moving party shall be served within 20 days of the filing of the certificate. Additional briefs shall be served as prescribed by rule 9.210. (e) Costs. The costs of these proceedings shall be divided equally between the parties unless otherwise ordered by the court.
Committee Notes 1977 Amendment. This rule retains the substance of former rule 4.61. Except for simplification of language, the only change from the former rule is that answer and reply briefs are governed by the same time schedule as other cases. It is contemplated that the federal courts will continue the current practice of directing the parties to present a stipulated statement of the facts. 1980 Amendment. This rule is identical to former rule 9.510. It has been renumbered to reflect the addition to the Florida Constitution of article V, section 3(b)(6), which permits discretionary supreme court review of certified questions from the federal courts. Answer briefs and reply briefs will continue to be governed by the same time schedule as in other cases.
DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS
(a) Applicability. This rule applies to those proceedings that invoke the discretionary jurisdiction of the district courts of appeal to review county court orders described in rule 9.030(b)(4). (b) Commencement. Any appeal of an order certified by the county court to be of great public importance must be taken to the district court of appeal. Jurisdiction of the district court of appeal under this rule shall be invoked by filing 2 copies of a notice and a copy of the order containing certification, accompanied by the filing fees prescribed by law, with the clerk of the lower tribunal. The time for filing the appeal shall be the same as if the appeal were being taken to the circuit court. (c) Notice. The notice shall be in substantially the form prescribed by rule 9.900(a) or rule 9.900(c), depending on whether the order sought to be appealed is a final or a non-final order, except that such notice should refer to the fact of certification. Except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice together with any order entered on a timely motion postponing rendition of the order or orders appealed. (d) Method of Certification. The certification may be made in the order subject to appeal or in any order
disposing of a motion that has postponed rendition as defined in rule 9.020(h). The certification shall include (1) findings of fact and conclusions of law and (2) a concise statement of the issue or issues of great public importance. (e) Discretion. (1) Any party may suggest that an order be certified to be of great public importance. However, the decision to certify shall be within the absolute discretion of the county court and may be made by the court on its own motion. (2) The district court of appeal, in its absolute discretion, shall by order accept or reject jurisdiction. Until the entry of such order, temporary jurisdiction shall be in the district court of appeal. (f) Scope of Review. (1) If the district court of appeal accepts the appeal, it will decide all issues that would have been subject to appeal if the appeal had been taken to the circuit court. (2) If the district court declines to accept the appeal, it shall transfer the case together with the filing fee to the circuit court that has appellate jurisdiction. (g) Record. The record shall be prepared and filed in accord with rule 9.110(e) or 9.140(f), depending on the nature of the appeal. (h) Briefs. The form of the briefs and the briefing schedule shall be in accord with rules 9.110(f), 9.140, 9.210, and 9.220, depending on the nature of the appeal. (i) Cross-Appeal. Cross-appeals shall be permitted according to the applicable rules only in those cases in which a cross-appeal would have been authorized if the appeal had been taken to circuit court. (j) Applicability of Other Rules. All other matters pertaining to the appeal shall be governed by the rules that would be applicable if the appeal had been taken to circuit court.
Committee Notes 1984 Amendment. This rule was added to implement the amendments to sections 26.012 and 924.08 and the adoption of section 34.195 by the 1984 Legislature. Section 34.195 authorizes only the certification of final judgments, but section 924.08 authorizes the certification of non-final orders in criminal cases. Therefore, this rule does not provide for appeals from non-final orders in civil cases. Under the rationale of State v. Smith, 260 So.2d 489 (Fla. 1972), the authority to provide for appeals from non-final orders may rest in the supreme court rather than in the legislature. However, in keeping with the spirit of the legislation, the rule was drafted to permit certification of those non-final orders in criminal cases that would otherwise be appealable to the circuit court. Sections 26.012 and 924.08 authorize only the certification of orders deemed to be of great public importance. However, section 34.195 refers to the certification of questions in final judgments if the question may have statewide application and is of great public importance or affects the uniform administration of justice. The committee concluded that any order certified to be of great public importance might have statewide application and that any order that would affect the uniform administration of justice would also be of great public importance. Therefore, the additional statutory language was deemed to be surplusage, and the rule refers only to the requirement of certifying the order to be of great public importance. The district court of appeal may, in its discretion, decline to accept the appeal, in which event it shall be transferred to the appropriate circuit court for disposition in the ordinary manner. Except as stated in the rule, the procedure shall be the same as would be followed if the appeal were being taken to circuit court. The rule does not authorize review of certified orders by common law certiorari. It is recommended that in those cases involving issues of great public importance, parties should file suggestions for certification before the entry of the order from which the appeal may be taken. However, parties are not precluded from suggesting certification following the entry of the order except that such suggestion, by itself, will not postpone rendition as defined in rule 9.020(h). 1992 Amendment. Subdivision (c) was amended to require that the appellant, except in criminal cases, attach to its notice of appeal a conformed copy of any orders designated in the notice of appeal, along with any orders on motions that postponed the rendition of orders appealed.
APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES
(a) Applicability. Appellate review of proceedings in workers’ compensation cases shall be as in civil cases except as specifically modified in this rule. (b) Jurisdiction. (1) Appeal. The First District Court of Appeal (the court) shall review by appeal any final order, as well as any nonfinal order of a lower tribunal that adjudicates (A) jurisdiction; (B) venue; or (C) compensability, provided that the order expressly finds an injury occurred within the scope and course of employment and that claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time. (2) Waiver of Review: Abbreviated Final Orders. Unless a request for findings of fact and conclusions of law is timely filed, review by appeal of an abbreviated final order shall be deemed waived. The filing of a timely request tolls the time within which an abbreviated final order becomes final or an appeal may be filed. (3) Commencement. Jurisdiction of the court shall be invoked by filing two copies of a notice of appeal with the lower tribunal, accompanied by the filing fee prescribed by law unless a verified petition for relief from payment of the fee has been filed with the lower tribunal within 30 days of the date the order to be reviewed is mailed by the lower tribunal to the parties, which date shall be the date of rendition. (4) Notice of Appeal. The notice shall be substantially in the form prescribed by rule 9.900(a), and shall contain a brief summary of the type of benefits affected, including a statement setting forth the time periods involved which shall be substantially in the following form: I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment: 1. Compensation for .....(TTD, TPD, wage loss, impairment benefits, PTD, funeral benefits, or death benefits)..... from .....(date)..... to .....(date)...... 2. Medical benefits. 3. Rehabilitation. 4. Reimbursement from the SDTF for benefits paid from .....(date)..... to .....(date)...... 5. Contribution for benefits paid from .....(date)..... to .....(date)...... (c) Jurisdiction of Lower Tribunal. (1) Substantive Issues. The lower tribunal retains jurisdiction to decide the issues that have not been adjudicated and are not the subject of pending appellate review.
(2) Settlement. At any time before the record on appeal is filed with the court, the lower tribunal shall have the authority to approve settlements or correct clerical errors in the order appealed. (3) Relinquishment of Jurisdiction by Court to Consider Settlement. If, after the record on appeal is filed, settlement is reached, the parties shall file a joint motion stating that a settlement has been reached and requesting relinquishment of jurisdiction to the lower tribunal for any necessary approval of the settlement. The court may relinquish jurisdiction for a specified period for entry of an appropriate order. In the event the Division of Workers’ Compensation has advanced the costs of preparing the record on appeal or the filing fee, a copy of the joint motion shall be furnished to the division by the appellant. (A) Notice. On or before the date specified in the order relinquishing jurisdiction, the parties shall file a joint notice of disposition of the settlement with a conformed copy of any order entered on the settlement. (B) Costs. Any order approving a settlement shall provide where appropriate for the assessment and recovery of appellate costs, including any costs incurred by the division for insolvent appellants. (d) Benefits Affected. Benefits specifically referenced in the notice of appeal may be withheld as provided by law pending the outcome of the appeal. Otherwise, benefits awarded shall be paid as required by law. (1) Abandonment. If the appellant or cross-appellant fails to argue entitlement to benefits set forth in the notice of appeal in the appellant’s or cross-appellant’s initial brief, the challenge to such benefits shall be deemed abandoned. If there is a dispute as to whether a challenge to certain benefits has been abandoned, the court upon motion shall make that determination. (2) Payments of Benefits When Challenged Benefits Are Abandoned. When benefits challenged on appeal have been abandoned under subdivision (d)(1) above, benefits no longer affected by the appeal are payable within 30 days of the service of the brief together with interest as required under section 440.20, Florida Statutes, from the date of the order of the lower tribunal making the award. (3) Payment of Benefits After Appeal. If benefits are ordered paid by the court on completion of the appeal, they shall be paid, together with interest as required under section 440.20, Florida Statutes, within 30 days after the court’s mandate. If the order of the court is appealed to the supreme court, benefits determined due by the court may be stayed in accordance with rule 9.310. Benefits ordered paid by the supreme court shall be paid within 30 days of the court’s mandate. (e) Intervention by Division of Workers’ Compensation. (1) District Court. Within 30 days of the date of filing a notice or petition invoking the jurisdiction of the court the Division of Workers’ Compensation may intervene by filing a notice of intervention as a party appellant/petitioner or appellee/respondent with the court and take positions on any relevant matters. (2) Supreme Court. If review of an order of the court is sought in the supreme court, the division may intervene in accordance with these rules. The clerk of the supreme court shall provide a copy of the pertinent papers to the division. (3) Division Not a Party Until Notice to Intervene Is Filed. Until the notice of intervention is filed, the division shall not be considered a party. (f) Record Contents: Final Orders.
(1) Transcript, Order, and Other Documents. The record shall contain the claim(s) or petition(s) for benefits, notice(s) of denial, pretrial stipulation, pretrial order, depositions or exhibits admitted into evidence, transcripts of any hearings before the lower tribunal and the order appealed. The parties may designate other items for inclusion in or omission from the record in accordance with rule 9.200. (2) Proffered Evidence. Evidence proffered but not introduced into evidence at the hearing shall not be considered unless its admissibility is an issue on appeal and the question is properly designated for inclusion in the record by a party. (3) Certification and Transmittal. The lower tribunal shall certify and transmit the record to the court as prescribed by these rules. (4) Stipulated Record. The parties may stipulate to the contents of the record. In such a case the record shall consist of the stipulated statement and the order appealed which the lower tribunal shall certify as the record on appeal. (5) Costs. (A) Notice of Estimated Costs. Within 5 days after the contents of the record have been determined under these rules, the lower tribunal shall notify the appellant of the estimated cost of preparing the record. The lower tribunal also shall notify the Division of Workers’ Compensation of the estimated record costs if the appellant files a verified petition to be relieved of costs and a sworn financial affidavit. (B) Deposit of Estimated Costs. Within 15 days after the notice of estimated costs is served, the appellant shall deposit a sum of money equal to the estimated costs with the lower tribunal. (C) Failure to Deposit Costs. If the appellant fails to deposit the estimated costs within the time prescribed, the lower tribunal shall notify the court, which may dismiss the appeal. (D) State Agencies: Waiver of Costs. Any self-insured state agency or branch of state government, including the Division of Workers’ Compensation and the Special Disability Trust Fund, need not deposit the estimated costs. (E) Costs. If additional costs are incurred in correcting, amending, or supplementing the record, the lower tribunal shall assess such costs against the appropriate party. If the Division of Workers’ Compensation is obligated to pay the costs of the appeal due to appellant’s indigency, it must be given notice of any proceeding to assess additional costs. Within 15 days after the entry of the order assessing costs, the assessed party must deposit the sums so ordered with the lower tribunal. The lower tribunal shall promptly notify the court if costs are not deposited as required. (6) Preparation of Record. (A) Selection of Reporter by Lower Tribunal. The lower tribunal shall supervise the preparation of the record. The lower tribunal or chief judge of compensation claims shall select the reporter or transcriber to prepare the record. The judge who makes the selection shall give the parties notice of the selection. (B) Objection to Reporter or Transcriber Selected. Any party may object to the reporter or transcriber selected by filing written objections with the judge who made the selection within 15 days after service of notice of the selection. Within 5 days after filing the objection, the judge shall hold a hearing on the issue. In such a case, the time limits mandated by these rules shall be appropriately extended. (C) Certification of Record by Court Reporter or Transcriber. The reporter or transcriber designated by
the lower tribunal or chief judge of compensation claims shall transcribe, certify, and deliver all necessary copies of the record to the lower tribunal as required under these rules. The record shall be delivered in sufficient time for the lower tribunal to review the record and send it to the court. The reporter or transcriber shall promptly notify all parties in writing when the record is delivered to the lower tribunal. (D) Certification and Transmittal by Lower Tribunal. The lower tribunal shall review the original record, certify that it was prepared in accordance with these rules, and within 60 days of the notice of appeal being filed transmit the record to the court. (E) Copies. The lower tribunal shall provide a copy of the record to all counsel of record and all unrepresented parties. (7) Extensions. For good cause, the lower tribunal may extend by no more than 30 days the time for filing the record with the court. Any further extension of time may be granted by the court. (8) Applicability of Rule 9.200. Rules 9.200(a)(3), (c), and (f) shall apply to preparation of the record in appeals under this rule. (g) Relief From Filing Fee and Costs: Indigency. (1) Indigency Defined. Indigency for the purpose of this rule is synonymous with insolvency as defined by section 440.02, Florida Statutes. (2) Filing Fee. (A) Authority. An appellant may be relieved of paying filing fees by filing a verified petition or motion of indigency under section 57.081(1), Florida Statutes, with the lower tribunal. (B) Time. The verified petition or motion of indigency must be filed with the lower tribunal together with the notice of appeal. (C) Verified Petition: Contents. The verified petition or motion shall contain a statement by the appellant to be relieved of paying filing fees due to indigency and appellant’s inability to pay the charges. The petition shall request that the lower tribunal enter an order or certificate of indigency. One of the following shall also be filed in support of the verified petition or motion: (i) If the appellant is unrepresented by counsel, a financial affidavit; or (ii) If the appellant is represented by counsel, counsel shall certify that counsel has investigated (a) the appellant’s financial condition and finds appellant indigent; and (b) the nature of appellant’s position and believes it to be meritorious as a matter of law. Counsel shall also certify that counsel has not been paid or promised payment of a fee or other remuneration for such legal services except for the amount, if any, ultimately approved by the lower tribunal to be paid by the employer/carrier if such entitlement is determined by the court. (D) Service. Appellant shall serve a copy of the verified petition or motion of indigency, including appellant’s financial affidavit or counsel’s certificate, whichever is applicable, on all interested parties and the clerk of the court. (E) Order or Certificate of Indigency. The lower tribunal shall review the verified petition or motion for indigency and supporting documents without a hearing, and if the lower tribunal finds compliance with section 57.081(1), Florida Statutes, may issue a certificate of indigency or enter an order granting said relief, at which time appellant may proceed without further application to the court and without payment of any filing fees. If the lower tribunal enters an order denying relief, appellant shall deposit the filing fee with the lower tribunal within 15 days
from the date of the order unless timely review is sought by motion filed with the court. (3) Costs of Preparation of Record. (A) Authority. An appellant may be relieved in whole or in part from the costs of the preparation of the record on appeal by filing with the lower tribunal a verified petition to be relieved of costs and a copy of the designation of the record on appeal. The verified petition to be relieved of costs shall contain a sworn financial affidavit as described in subdivision (D). (B) Time. The verified petition to be relieved of costs must be filed within 15 days after service of the notice of estimated costs. A verified petition filed prior to the date of service of the notice of estimated costs shall be deemed not timely. (C) Verified Petition: Contents. The verified petition shall contain a request by appellant to be relieved of costs due to insolvency. The petition also shall include a statement by the appellant’s attorney or the appellant, if not represented by an attorney, that the appeal was filed in good faith and the court reasonably could find reversible error in the record and shall state with particularity the specific legal and factual grounds for that opinion. (D) Sworn Financial Affidavit: Contents. With the verified petition to be relieved of costs, the appellant shall file a sworn financial affidavit listing income and assets, including marital income and assets, and expenses and liabilities. (E) Verified Petition and Sworn Financial Affidavit: Service. The appellant shall serve a copy of the verified petition to be relieved of costs, including the sworn financial affidavit, on all interested parties, including the Division of Workers’ Compensation, the office of general counsel of the Department of Financial Services, and the clerk of the court. (F) Hearing on Petition to Be Relieved of Costs. After giving 15 days’ notice to the Division of Workers’ Compensation and all parties, the lower tribunal shall promptly hold a hearing and rule on the merits of the petition to be relieved of costs. However, if no objection to the petition is filed by the division or a party within 20 days after the petition is served, the lower tribunal may enter an order on the merits of the petition without a hearing. (G) Extension of Appeal Deadlines: Petition Granted. If the petition to be relieved of the entire cost of the preparation of the record on appeal is granted, the 60-day period allowed under these rules for the preparation of the record shall begin to run from the date of the order granting the petition. (H) Extension of Appeal Deadlines: Petition Denied. If the petition to be relieved of the cost of the record is denied or only granted in part, the petitioner shall deposit the estimated costs with the lower tribunal within 15 days from the date the order denying the petition is entered. The 60-day period allowed under these rules for the preparation of the record shall begin from the date the estimated cost is deposited with the lower tribunal. (I) Payment of Cost for Preparation of Record by Administration Trust Fund. If the petition to be relieved of costs is granted, the lower tribunal may order the Workers’ Compensation Administration Trust Fund to pay the cost of the preparation of the record on appeal pending the final disposition of the appeal. The lower tribunal shall provide a copy of such order to all interested parties, including the division, general counsel of the Department of Financial Services, and the clerk of the court. (J) Reimbursement of Administration Trust Fund If Appeal Is Successful. If the Administration Trust Fund has paid the costs of the preparation of the record and the appellant prevails at the conclusion of the appeal, the appellee shall reimburse the fund the costs paid within 30 days of the mandate issued by the court or supreme court
under these rules. (h) Briefs and Motions Directed to Briefs. (1) Briefs: Final Order Appeals. Within 30 days after the lower tribunal certifies the record to the court, the appellant shall serve the initial brief. Additional briefs shall be served as prescribed by rule 9.210. (2) Briefs: Non-Final Appeals. Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 15 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210. (3) Motions to Strike. Motions to strike a brief or portions of a brief will not be entertained by the court. However, a party, in its own brief, may call to the court’s attention a breach of these rules. If no further responsive brief is authorized, noncompliance may be brought to the court’s attention by filing a suggestion of noncompliance. Statements in briefs not supported by the record shall be disregarded and may constitute cause for imposition of sanctions. (i) Attorneys’ Fees and Appellate Costs. (1) Costs. Appellate costs shall be taxed as provided by law. Taxable costs shall include those items listed in rule 9.400 and costs for a transcript included in an appendix as part of an appeal of a nonfinal order. (2) Attorneys’ Fees. A motion for attorneys’ fees shall be served in accordance with rule 9.400(b). (3) Entitlement and Amount of Fees and Costs. If the court determines that an appellate fee is due, the lower tribunal shall have jurisdiction to conduct hearings and consider evidence regarding the amount of the attorney fee and costs due at any time after the mandate is issued. (4) Review. Review shall be in accordance with rule 9.400(c).
Committee Notes 1996 Adoption. Rule 9.180 is intended to supersede rules 4.160, 4.161, 4.165, 4.166, 4.170, 4.180, 4.190, 4.220, 4.225, 4.230, 4.240, 4.250, 4.260, 4.265, 4.270, and 4.280 of the Rules of Workers’ Compensation Procedure. In consolidating those rules into one rule and incorporating them into the Rules of Appellate Procedure, duplicative rules have been eliminated. The change was not intended to change the general nature of workers’ compensation appeals. It is contemplated there still may be multiple “final orders.” See 1980 Committee Note, Fla. R. Work. Comp. P. 4.160. The orders listed in rules 9.180(b)(1)(A), (B), and (C) are the only nonfinal orders appealable before entry of a final order in workers’ compensation cases. Rule 9.180(b)(2) now limits the place for filing the notice of appeal to the lower tribunal that entered the order and not any judge of compensation claims as the former rule provided. Rule 9.180(f)(6)(E) provides that the lower tribunal shall provide a copy of the record to all counsel of record and all unrepresented parties. It is contemplated that the lower tribunal can accomplish that in whatever manner the lower tribunal deems most convenient for itself, such as, having copies available that counsel or the parties may pick up.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
(a) Applicability. Judicial review of administrative action shall be governed by the general rules of appellate procedure except as specifically modified herein. (b) Commencement.
(1) An appeal from final agency action as defined in the Administrative Procedure Act, chapter 120, Florida Statutes, or other administrative action for which judicial review is provided by general law shall be commenced in accordance with rule 9.110(c). (2) Review of non-final agency action, including non-final action by an administrative law judge, under the Administrative Procedure Act shall be commenced by filing a petition for review in accordance with rules 9.100(b) and (c). (3) Review of quasi-judicial decisions of any administrative body, agency, board, or commission not subject to the Administrative Procedure Act shall be commenced by filing a petition for certiorari in accordance with rules 9.100(b) and (c), unless judicial review by appeal is provided by general law. (c) The Record. (1) Generally. As further described in this rule, the record shall include only materials furnished to and reviewed by the lower tribunal in advance of the administrative action to be reviewed by the court. (2) Review of Final Action Pursuant to the Administrative Procedure Act. (A) In an appeal from any proceeding conducted pursuant to section 120.56 (rule challenges) or sections 120.569 (decisions which affect substantial interests) and 120.57(1), Florida Statutes (decisions which affect substantial interests involving disputed material facts), the record shall consist of all notices, pleadings, motions, and intermediate rulings; evidence admitted; those matters officially recognized; proffers of proof and objections and rulings thereon; proposed findings and exceptions; any decision, opinion, order, or report by the presiding officer; all staff memoranda or data submitted to the presiding officer during the hearing or prior to its disposition, after notice of submission to all parties, except communications by advisory staff as permitted under section 120.66(1), Florida Statutes, if such communications are public records; all matters placed on the record after an ex parte communication; and the official transcript. (B) In an appeal from any proceeding pursuant to sections 120.569 (decisions which affect substantial interests) and 120.57(2), Florida Statutes (decisions which affect substantial interests involving no disputed issue of material fact), the record shall consist of the notice and summary of grounds; evidence received; all written statements submitted; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrative Weekly; the declaratory statement issued by the agency or the agency’s denial of the petition; and all matters listed in subdivision (c)(2)(A) or (c)(2)(B) of this rule, whichever is appropriate, if a hearing is held on the declaratory statement petition. (D) In an appeal from any proceeding pursuant to section 120.574, Florida Statutes (summary proceeding), the record shall consist of all notices, pleadings, motions, and intermediate rulings; evidence received; a statement of matters officially recognized; proffers of proof and objections and rulings thereon; matters placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E) In an appeal from a rule adoption pursuant to sections 120.54 (rule adoption) and 120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemaking record compiled by the agency that materially address the constitutional issue. The agency’s rulemaking record consists of all notices given for the
proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statutes (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule. (3) Review of Non-Final Action Pursuant to the Administrative Procedure Act. The provisions of rules 9.100 and 9.220 govern the record in proceedings seeking review of non-final administrative action. (4) Review of Administrative Action Not Subject to the Administrative Procedure Act. In proceedings seeking review of administrative action not governed by the Administrative Procedure Act, the clerk of the lower tribunal shall not be required to prepare a record or record index. The petitioner or appellant shall submit an appendix in accordance with rule 9.220. Supplemental appendices may be submitted by any party. Appendices may not contain any matter not made part of the record in the lower tribunal. (5) Videotaped Testimony. In any circumstance in which hearing testimony is preserved through the use of videotape rather than through an official transcript, the testimony from the videotape shall be transcribed and the transcript shall be made a part of the record before the record is transmitted to the court. (6) Modified Record. The contents of the record may be modified as provided in rule 9.200(a)(3). (d) Attorneys’ Fees. (1) Attorneys’ Fees. A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which the recovery is sought, citing all pertinent statutes. (2) Disputes As To Amount. If the court decides to award attorneys’ fees, the court may either remand the matter to the lower tribunal or to the administrative law judge for determination of the amount, or refer the matter to a special magistrate. (3) Review. Review of orders entered by the lower tribunal or the administrative law judge under this rule shall be by motion filed in the court within 30 days of rendition of the order. Objections to reports of special magistrates shall be filed with the court within 30 days after the special magistrate’s report is filed with the court. (e) Stays Pending Review. (1) Effect of Initiating Review. The filing of a notice of administrative appeal or a petition seeking review of administrative action shall not operate as a stay, except that such filing shall give rise to an automatic stay as provided in rule 9.310(b)(2) or when timely review is sought of an award by an administrative law judge on a claim for birth-related neurological injuries. (2) Application for Stay Under the Administrative Procedure Act. (A) A party seeking to stay administrative action may file a motion either with the lower tribunal or, for good cause shown, with the court in which the notice or petition has been filed. The filing of the motion shall not operate as a stay. The lower tribunal or court may grant a stay upon appropriate terms. Review of orders entered by lower tribunals shall be by the court on motion. (B) When an agency has ordered emergency suspension, restriction, or limitation of a license under section 120.60(6), Florida Statutes, a licensee may file with the reviewing court a motion for stay on an expedited basis. The court may issue an order to show cause and, after considering the agency’s response, if timely filed, grant a stay on
appropriate terms. (C) When an agency has suspended or revoked a license other than on an emergency basis, a licensee may file with the court a motion for stay on an expedited basis. The agency may file a response within 10 days of the filing of the motion, or within a shorter time period set by the court. Unless the agency files a timely response demonstrating that a stay would constitute a probable danger to the health, safety, or welfare of the state, the court shall grant the motion and issue a stay. (D) When an order suspending or revoking a license has been stayed pursuant to subdivision (2)(C), an agency may apply to the court for dissolution or modification of the stay on grounds that subsequently acquired information demonstrates that failure to dissolve or modify the stay would constitute a probable danger to the public health, safety, or welfare of the state. (3) Application for Stay or Supersedeas of Other Administrative Action. A party seeking to stay administrative action, not governed by the Administrative Procedure Act, shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both. Review of orders entered by lower tribunals shall be by the court on motion. (4) Duration. A stay entered by a lower tribunal or a court shall remain in effect during the pendency of all review proceedings in Florida courts until a mandate issues, unless otherwise modified or vacated.
Committee Notes 1996 Amendment. Appeals which fall within the exception included in subdivision (b)(3) are commenced in accordance with subdivision (b)(1). Therefore, administrative action by appeal in a circuit court, if prescribed by general law, is commenced pursuant to subdivision (b)(1). Unless review of administrative action in circuit court is prescribed by general law to be by appeal, review in circuit court is by petition for an extraordinary writ commenced pursuant to subdivision (b)(3). See Board of County Commissioners v. Snyder, 627 So.2d 469 (Fla. 1993); Grace v. Town of Palm Beach, 656 So.2d 945 (Fla. 4th DCA 1995). Subdivision (b)(3) supersedes all local government charters, ordinances, rules and regulations which purport to provide a method of review in conflict herewith. Subdivision (c) was adopted to identify more clearly what constitutes the record in appeals from administrative proceedings. Several sections of the Florida Administrative Procedure Act, as revised in 1996, specifically state what shall constitute the record in certain types of proceedings, and this rule incorporates that statutory language. The rule makes clear that the record shall include only materials that were furnished to and reviewed by the lower tribunal in advance of the administrative action to be reviewed. The intent of this statement is to avoid the inclusion of extraneous materials in the record that were never reviewed by the lower tribunal. Subdivision (c)(2)(A) is based on provisions of section 120.57(1)(f), Florida Statutes. This subdivision of the rule governs the record from proceedings conducted pursuant to section 120.56 and sections 120.569 and 120.57(1), Florida Statutes. This is because section 120.56(1)(e), Florida Statutes, states that hearings under section 120.56, Florida Statutes, shall be conducted in the same manner as provided by sections 120.569 and 120.57, Florida Statutes. Subdivision (c)(2)(B) lists the provisions of section 120.57(2)(b), Florida Statutes. Subdivision (c)(2)(B)(vii), which refers to “any decision, opinion, order, or report by the presiding officer,” was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section 120.565, while subdivision (c)(2)(D) lists the provisions of section 120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections 120.54 and 120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section 120.54(8), Florida Statutes. Subdivision (c)(3) makes clear that rules 9.100 and 9.220 govern the record in proceedings seeking review of non-final administrative action, while subdivision (c)(4) governs the record in administrative proceedings not subject to the Administrative Procedure Act. Subdivision (c)(5) states that if videotape is used to preserve hearing testimony, the videotape shall be transcribed before the record is transmitted to the court. Subdivision (d) was adopted to conform to the 1996 revisions to the Administrative Procedure Act. Recoupment of costs is still governed by rule 9.400. 2000 Amendment. Subdivision (e) was added to address stays pending judicial review of administrative action. Ordinarily, application for a
stay must first be made to the lower tribunal, but some agencies have collegial heads who meet only occasionally. If a party can show good cause for applying initially to the court for a stay, it may do so. When an appeal has been taken from a license suspension or revocation under the Administrative Procedure Act, good cause for not applying first to the lower tribunal is presumed. Subdivision (e)(2)(B) deals with stays of orders which suspend licenses on an emergency basis. Before entering an emergency suspension order, the agency must make a finding that immediate suspension is necessary to protect the public health, safety, or welfare. § 120.60(6), Fla. Stat. (1999). In effect, the agency makes a finding that would be sufficient to defeat issuance of the “stay as a matter of right” contemplated by section 120.68(3), Florida Statutes. The agency’s finding is subject to judicial review, however, on application for a stay under subdivision (e)(2)(B). Absent an emergency suspension order, the court grants a stay as of right in Administrative Procedure Act license suspension and revocation cases unless the licensing agency makes a timely showing that a stay “would constitute a probable danger to the health, safety, or welfare of the state.” § 120.68(3), Fla. Stat. (1999). The court can shorten the 10 day period specified in subdivision (e)(2)(c). If the court stays a nonemergency suspension or revocation, the licensing agency can move to modify or dissolve the stay on the basis of material information that comes to light after the stay is issued. Nothing in subdivision (e) precludes licensing agencies from making suspension or revocation orders effective 30 days after entry, granting stays pending judicial review, or taking other steps to implement section 120.68(3), Florida Statutes. 2004 Amendment. Subdivision (e)(2)(C) was amended to clarify that the ten days (or shorter period set by the court) within which the agency has to respond runs from the filing of the motion for stay. See Ludwig v. Dept. of Health, 778 So. 2d 531 (Fla. 1st DCA 2001).
RULE 9.200. (a) Contents.
(1) Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, other discovery, and physical evidence. The record shall also include a progress docket. (2) In family law, juvenile dependency, and termination of parental rights cases, and cases involving families and children in need of services, the record shall include those items designated in subdivision (a)(1) except that the clerk of the lower tribunal shall retain the original orders, reports and recommendations of magistrates or hearing officers, and judgments within the file of the lower tribunal and shall include copies thereof within the record. (3) Within 10 days of filing the notice of appeal, an appellant may direct the clerk to include or exclude other documents or exhibits filed in the lower tribunal. The directions shall be substantially in the form prescribed by rule 9.900(f). If the clerk is directed to transmit less than the entire record or a transcript of trial with less than all of the testimony, the appellant shall serve with such direction a statement of the judicial acts to be reviewed. Within 20 days of filing the notice, an appellee may direct the clerk to include additional documents and exhibits. (4) The parties may prepare a stipulated statement showing how the issues to be presented arose and were decided in the lower tribunal, attaching a copy of the order to be reviewed and as much of the record in the lower tribunal as is necessary to a determination of the issues to be presented. The parties shall advise the clerk of their intention to rely on a stipulated statement in lieu of the record as early in advance of filing as possible. The stipulated statement shall be filed by the parties and transmitted to the court by the clerk of the lower tribunal within the time prescribed for transmittal of the record. (b) Transcript(s) of Proceedings. (1) Within 10 days of filing the notice, the appellant shall designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. Within 20 days of filing the notice, an appellee may designate additional portions of the proceedings. Copies of designations shall be served on the court reporter. Costs of the original and all copies of the transcript(s) so designated shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by rule 9.400. At the time of the designation, unless other satisfactory arrangements have been made, the designating party must make a deposit of 1/2 of the estimated transcript costs, and must pay the full balance of the fee on delivery of the completed transcript(s).
(2) Within 30 days of service of a designation, or within the additional time provided for under subdivision (b)(3) of this rule, the court reporter shall transcribe and file with the clerk of the lower tribunal the designated proceedings and shall serve copies as requested in the designation. In addition to the paper copies, the court reporter shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the court reporter to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic and paper form, on the parties within 5 days of receipt from the court reporter. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. Each volume shall be prefaced by an index containing the names of the witnesses, a list of all exhibits offered and introduced in evidence, and the pages where each may be found. (3) On service of a designation, the reporter shall acknowledge at the foot of the designation the fact that it has been received and the date on which the reporter expects to have the transcript(s) completed and shall transmit the designation, so endorsed, to the parties and to the clerk of the appellate court within 5 days of service. If the transcript(s) cannot be completed within 30 days of service of the designation, the reporter shall request such additional time as is reasonably necessary and shall state the reasons therefor. If the reporter requests an extension of time, the court shall allow the parties 5 days in which to object or agree. The appellate court shall approve the request or take other appropriate action and shall notify the reporter and the parties of the due date of the transcript(s). (4) If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record. (c) Cross-Appeals. Within 20 days of filing the notice, a cross-appellant may direct that additional documents, exhibits, or transcript(s) be included in the record. If less than the entire record is designated, the cross-appellant shall serve, with the directions, a statement of the judicial acts to be reviewed. The cross-appellee shall have 10 days after such service to direct further additions. The time for preparation and transmittal of the record shall be extended by 10 days. (d) Duties of Clerk; Preparation and Transmittal of Record. (1) The clerk of the lower tribunal shall prepare the record as follows: (A) The clerk of the lower tribunal shall not be required to verify and shall not charge for the incorporation of any transcript(s) into the record. The transcript of the trial shall be incorporated at the end of the record, and shall not be renumbered by the clerk. The progress docket shall be incorporated into the record immediately after the index. (B) The remainder of the record, including all supplements and any transcripts other than the transcript of the trial, shall be consecutively numbered. The record shall be securely bound in consecutively numbered volumes not to exceed 200 pages each. The cover sheet of each volume shall contain the name of the lower tribunal and the style and number of the case. (2) The clerk of the lower tribunal shall prepare a complete index to the record and shall attach a copy of the progress docket to the index. (3) The clerk of the lower tribunal shall certify and transmit the record to the court as prescribed by these rules; provided that if the parties stipulate or the lower tribunal orders that the original record be retained, the clerk shall
prepare and transmit a certified copy. (e) Duties of Appellant or Petitioner. The burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by motion. (f) Correcting and Supplementing Record. (1) If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or the court may correct the record. (2) If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given. (g) Return of Record. In civil cases, the record shall be returned to the lower tribunal after final disposition by the court.
Committee Notes 1977 Amendment. This rule replaces former rule 3.6 and represents a complete revision of the matters pertaining to the record for an appellate proceeding. References in this rule to “appellant” and “appellee” should be treated as equivalent to “petitioner” and “respondent,” respectively. See Commentary, Fla. R. App. P. 9.020. This rule is based in part on Federal Rule of Appellate Procedure 10(b). Subdivision (a)(1) establishes the content of the record unless an appellant within 10 days of filing the notice directs the clerk to exclude portions of the record or to include additional portions, or the appellee within 20 days of the notice being filed directs inclusion of additional portions. In lieu of a record, the parties may prepare a stipulated statement, attaching a copy of the order that is sought to be reviewed and essential portions of the record. If a stipulated statement is prepared, the parties must advise the clerk not to prepare the record. The stipulated statement is to be filed and transmitted within the time prescribed for transmittal of the record. If less than a full record is to be used, the initiating party must serve a statement of the judicial acts to be reviewed so that the opposing party may determine whether additional portions of the record are required. Such a statement is not intended to be the equivalent of assignments of error under former rule 3.5. Any inadequacy in the statement may be cured by motion to supplement the record under subdivision (f) of this rule. Subdivision (a) interacts with subdivision (b) so that as soon as the notice is filed the clerk of the lower tribunal will prepare and transmit the complete record of the case as described by the rule. To include in the record any of the items automatically omitted, a party must designate the items desired. A transcript of the proceedings in the lower tribunal will not be prepared or transmitted unless already filed, or the parties designate the portions of the transcript desired to be transmitted. Subdivision (b)(2) imposes on the reporter an affirmative duty to prepare the transcript of the proceedings as soon as designated. It is intended that to complete the preparation of all official papers to be filed with the court, the appellant need only file the notice, designate omitted portions of the record that are desired, and designate the desired portions of the transcript. It therefore will be unnecessary to file directions with the clerk of the lower tribunal in most cases. Subdivision (b)(1) replaces former rule 3.6(d)(2), and specifically requires service of the designation on the court reporter. This is intended to avoid delays that sometimes occur when a party files the designation, but fails to notify the court reporter that a transcript is needed. The rule also establishes the responsibility of the designating party to initially bear the cost of the transcript. Subdivision (b)(2) replaces former rule 3.6(e). This rule provides for the form of the transcript, and imposes on the reporter the affirmative duty of delivering copies of the transcript to the ordering parties on request. Such a request may be included in the designation. Under subdivision (e), however, the responsibility for ensuring performance remains with the parties. The requirement that pages be consecutively numbered is new and is deemed necessary to assure continuity and ease of reference for the convenience of the court. This requirement applies even if 2 or more parties designate portions of the proceedings for transcription. It is intended that the transcript portions transmitted to the court constitute a single consecutively numbered document in 1 or more volumes not exceeding 200 pages each. If there is more than 1 court reporter, the clerk will renumber the pages of the transcript copies so that they are sequential. The requirement of a complete index at the beginning of each volume is new, and is necessary to standardize the format and to guide those preparing transcripts. Subdivision (b)(3) provides the procedures to be followed if no transcript is available. Subdivision (c) provides the procedures to be followed if there is a cross-appeal or cross-petition. Subdivision (d) sets forth the manner in which the clerk of the lower tribunal is to prepare the record. The original record is to be transmitted unless the parties stipulate or the lower court orders the original be retained, except that under rule 9.140(d) (governing criminal cases), the original is to be retained unless the court orders otherwise.
Subdivision (e) places the burden of enforcement of this rule on the appellant or petitioner, but any party may move for an order requiring adherence to the rule. Subdivision (f) replaces former rule 3.6(l). The new rule is intended to ensure that appellate proceedings will be decided on their merits and that no showing of good cause, negligence, or accident is required before the lower tribunal or the court orders the completion of the record. This rule is intended to ensure that any portion of the record in the lower tribunal that is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations that have occurred in the past when an order has been affirmed because appellate counsel failed to bring up the portions of the record necessary to determine whether there was an error. See Pan American Metal Prods. Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962). The rule is not intended to cure inadequacies in the record that result from the failure of a party to make a proper record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record developed in the lower tribunal. This rule does not impose on the lower tribunal or the court a duty to review on their own the adequacy of the preparation of the record. A failure to supplement the record after notice by the court may be held against the party at fault. Subdivision (g) requires that the record in civil cases be returned to the lower tribunal after final disposition by the court regardless of whether the original record or a copy was used. The court may retain or return the record in criminal cases according to its internal administration policies. 1980 Amendment. Subdivisions (b)(1) and (b)(2) were amended to specify that the party designating portions of the transcript for inclusion in the record on appeal shall pay for the cost of transcription and shall pay for and furnish a copy of the portions designated for all opposing parties. See rule 9.420(b) and 1980 committee note thereto relating to limitations of number of copies. 1987 Amendment. Subdivision (b)(3) above is patterned after Federal Rule of Appellate Procedure 11(b). 1992 Amendment. Subdivisions (b)(2), (d)(1)(A), and (d)(1)(B) were amended to standardize the lower court clerk’s procedure with respect to the placement and pagination of the transcript in the record on appeal. This amendment places the duty of paginating the transcript on the court reporter and requires the clerk to include the transcript at the end of the record, without repagination. 1996 Amendment. Subdivision (a)(2) was added because family law cases frequently have continuing activity at the lower tribunal level during the pendency of appellate proceedings and that continued activity may be hampered by the absence of orders being enforced during the pendency of the appeal. Subdivision (b)(2) was amended to change the wording in the third sentence from “transcript of proceedings” to “transcript of the trial” to be consistent with and to clarify the requirement in subdivision (d)(1)(B) that it is only the transcript of trial that is not to be renumbered by the clerk. Pursuant to subdivision (d)(1)(B), it remains the duty of the clerk to consecutively number transcripts other than the transcript of the trial. Subdivision (b)(2) retains the requirement that the court reporter is to number each page of the transcript of the trial consecutively, but it is the committee’s view that if the consecutive pagination requirement is impracticable or becomes a hardship for the court reporting entity, relief may be sought from the court. 2006 Amendment. Subdivision (a)(2) is amended to apply to juvenile dependency and termination of parental rights cases and cases involving families and children in need of services. The justification for retaining the original orders, reports, and recommendations of magistrate or hearing officers, and judgments within the file of the lower tribunal in family law cases applies with equal force in juvenile dependency and termination of parental rights cases, and cases involving families and children in need of services.
(a) Generally. In addition to briefs on jurisdiction under rule 9.120(d), the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief. All briefs required by these rules shall be prepared as follows: (1) Briefs shall be printed, typewritten, or duplicated on opaque, white, unglossed 8 1/2-by-11 inch paper. (2) The lettering in briefs shall be black and in distinct type, double-spaced, with margins no less than 1 inch. Lettering in script or type made in imitation of handwriting shall not be permitted. Footnotes and quotations may be single spaced and shall be in the same size type, with the same spacing between characters, as the text. Computergenerated briefs shall be submitted in either Times New Roman 14-point font or Courier New 12-point font. All computer-generated briefs shall contain a certificate of compliance signed by counsel, or the party if unrepresented, certifying that the brief complies with the font requirements of this rule. The certificate of compliance shall be contained in the brief immediately following the certificate of service. (3) Briefs shall be securely bound in book form and fastened along the left side in a manner that will allow them
to lie flat when opened or be securely stapled in the upper left corner. Headings and subheadings shall be at least as large as the brief text and may be single spaced. (4) The cover sheet of each brief shall state the name of the court, the style of the cause, including the case number if assigned, the lower tribunal, the party on whose behalf the brief is filed, the type of brief, and the name and address of the attorney filing the brief. (5) The initial and answer briefs shall not exceed 50 pages in length, provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 85 pages. Reply briefs shall not exceed 15 pages in length; provided that if a cross-appeal has been filed, the reply brief shall not exceed 50 pages, not more than 15 of which shall be devoted to argument replying to the answer portion of the appellee/cross-appellant’s brief. Crossreply briefs shall not exceed 15 pages. Briefs on jurisdiction shall not exceed 10 pages. The table of contents and the citation of authorities shall be excluded from the computation. Longer briefs may be permitted by the court. (b) Contents of Initial Brief. The initial brief shall contain the following, in order: (1) A table of contents listing the issues presented for review, with references to pages. (2) A table of citations with cases listed alphabetically, statutes and other authorities, and the pages of the brief on which each citation appears. See rule 9.800 for a uniform citation system. (3) A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate volume and pages of the record or transcript shall be made. (4) A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed 2 and never 5 pages. (5) Argument with regard to each issue including the applicable appellate standard of review. (6) A conclusion, of not more than 1 page, setting forth the precise relief sought. (c) Contents of Answer Brief. The answer brief shall be prepared in the same manner as the initial brief; provided that the statement of the case and of the facts may be omitted. If a cross-appeal has been filed, the answer brief shall include the issues in the cross-appeal that are presented for review, and argument in support of those issues. (d) Contents of Reply Brief. The reply brief shall contain argument in response and rebuttal to argument presented in the answer brief. (e) Contents of Cross-Reply Brief. The cross-reply brief is limited to rebuttal of argument of the cross-appellee. (f) Times for Service of Briefs. The times for serving jurisdiction and initial briefs are prescribed by rules 9.110, 9.120, 9.130, and 9.140. Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief; the reply brief, if any, shall be served within 20 days after service of the answer brief; and the crossreply brief, if any, shall be served within 20 days thereafter. (g) Filing with Courts. The filing requirements of the courts are as follows: (1) Circuit Courts. Original and 1 copy. (2) District Courts of Appeal. Original and 3 copies. (3) Supreme Court. Original and 7 copies; except that 5 copies only shall accompany the original jurisdictional briefs prescribed in rule 9.120(d).
(h) Citations. Counsel are requested to use the uniform citation system prescribed by rule 9.800.
Committee Notes 1977 Amendment. This rule essentially retains the substance of former rule 3.7. Under subdivision (a) only 4 briefs on the merits are permitted to be filed in any 1 proceeding: an initial brief by the appellant or petitioner, an answer brief by the appellee or respondent, a reply brief by the appellant or petitioner, and a cross-reply brief by the appellee or respondent (if a cross-appeal or petition has been filed). A limit of 50 pages has been placed on the length of the initial and answer briefs, 15 pages for reply and cross-reply briefs (unless a cross-appeal or petition has been filed), and 20 pages for jurisdictional briefs, exclusive of the table of contents and citations of authorities. Although the court may by order permit briefs longer than allowed by this rule, the advisory committee contemplates that extensions in length will not be readily granted by the courts under these rules. General experience has been that even briefs within the limits of the rule are usually excessively long. Subdivisions (b), (c), (d), and (e) set forth the format for briefs and retain the substance of former rules 3.7(f), (g), and (h). Particular note must be taken of the requirement that the statement of the case and facts include reference to the record. The abolition of assignments of error requires that counsel be vigilant in specifying for the court the errors committed; that greater attention be given the formulation of questions presented; and that counsel comply with subdivision (b)(5) by setting forth the precise relief sought. The table of contents will contain the statement of issues presented. The pages of the brief on which argument on each issue begins must be given. It is optional to have a second, separate listing of the issues. Subdivision (c) affirmatively requires that no statement of the facts of the case be made by an appellee or respondent unless there is disagreement with the initial brief, and then only to the extent of disagreement. It is unacceptable in an answer brief to make a general statement that the facts in the initial brief are accepted, except as rejected in the argument section of the answer brief. Parties are encouraged to place every fact utilized in the argument section of the brief in the statement of facts. Subdivision (f) sets forth the times for service of briefs after service of the initial brief. Times for service of the initial brief are governed by the relevant rule. Subdivision (g) authorizes the filing of notices of supplemental authority at any time between the submission of briefs and rendition of a decision. Argument in such a notice is absolutely prohibited. Subdivision (h) states the number of copies of each brief that must be filed with the clerk of the court involved—one copy for each judge or justice in addition to the original for the permanent court file. This rule is not intended to limit the power of the court to require additional briefs at any time. The style and form for the citation of authorities should conform to the uniform citation system adopted by the Supreme Court of Florida, which is reproduced in rule 9.800. The advisory committee urges counsel to minimize references in their briefs to the parties by such designations as “appellant,” “appellee,” “petitioner,” and “respondent.” It promotes clarity to use actual names or descriptive terms such as “the employee,” “the taxpayer,” “the agency,” etc. See Fed. R. App. P. 28(d). 1980 Amendment. Jurisdictional briefs, now limited to 10 pages by subdivision (a), are to be filed only in the 4 situations presented in rules 9.030(a)(2)(A)(i), (ii), (iii), and (iv). A district court decision without opinion is not reviewable on discretionary conflict jurisdiction. See Jenkins v. State, 385 So.2d 1356 (Fla. 1980); Dodi Publishing Co. v. Editorial Am., S.A., 385 So.2d 1369 (Fla. 1980). The discussion of jurisdictional brief requirements in such cases that is contained in the 1977 revision of the committee notes to rule 9.120 should be disregarded. 1984 Amendment. Subdivision (b)(4) is new; subdivision (b)(5) has been renumbered from former (b)(4); subdivision (b)(6) has been renumbered from former (b)(5). Subdivision (g) has been amended. The summary of argument required by (b)(4) is designed to assist the court in studying briefs and preparing for argument; the rule is similar to rules of the various United States courts of appeals. 1992 Amendment. Subdivision (a)(2) was amended to bring into uniformity the type size and spacing on all briefs filed under these rules. Practice under the previous rule allowed briefs to be filed with footnotes and quotations in different, usually smaller, type sizes and spacing. Use of such smaller type allowed some overly long briefs to circumvent the reasonable length requirements established by subdivision (a)(5) of this rule. The small type size and spacing of briefs allowed under the old rule also resulted in briefs that were difficult to read. The amended rule requires that all textual material wherever found in the brief will be printed in the same size type with the same spacing. Subdivision (g) was amended to provide that notices of supplemental authority may call the court’s attention, not only to decisions, rules, or statutes, but also to other authorities that have been discovered since the last brief was served. The amendment further provides that the notice may identify briefly the points on appeal to which the supplemental authorities are pertinent. This amendment continues to prohibit argument in such notices, but should allow the court and opposing counsel to identify more quickly those issues on appeal to which these notices are relevant.
1996 Amendment. Former subdivision (g) concerning notices of supplemental authority was transferred to new rule 9.225. Court Commentary 1987. The commission expressed the view that the existing page limits for briefs, in cases other than those in the Supreme Court of Florida, are tailored to the “extraordinary” case rather than the “ordinary” case. In accordance with this view, the commission proposed that the page limits of briefs in appellate courts other than the supreme court be reduced. The appellate courts would, however, be given discretion to expand the reduced page limits in the “extraordinary” case. 2000. As to computer-generated briefs, strict font requirements were imposed in subdivision (a)(2) for at least three reasons: First and foremost, appellate briefs are public records that the people have a right to inspect. The clear policy of the Florida Supreme Court is that advances in technology should benefit the people whenever possible by lowering financial and physical barriers to public record inspection. The Court’s eventual goal is to make all public records widely and readily available, especially via the Internet. Unlike paper documents, electronic documents on the Internet will not display properly on all computers if they are set in fonts that are unusual. In some instances, such electronic documents may even be unreadable. Thus, the Court adopted the policy that all computer-generated appellate briefs be filed in one of two fonts — either Times New Roman 14-point or Courier New 12-point—that are commonplace on computers with Internet connections. This step will help ensure that the right to inspect public records on the Internet will be genuinely available to the largest number of people. Second, Florida’s court system as a whole is working toward the day when electronic filing of all court documents will be an everyday reality. Though the technology involved in electronic filing is changing rapidly, it is clear that the Internet is the single most significant factor influencing the development of this technology. Electronic filing must be compatible with Internet standards as they evolve over time. It is imperative for the legal profession to become accustomed to using electronic document formats that are most consistent with the Internet. Third, the proliferation of vast new varieties of fonts in recent years poses a real threat that page-limitation rules can be circumvented through computerized typesetting. The only way to prevent this is to establish an enforceable rule on standards for font use. The subject font requirements are most consistent with this purpose and the other two purposes noted above. Subdivision (a)(2) was also amended to require that immediately after the certificate of service in computer-generated briefs, counsel (or the party if unrepresented) shall sign a certificate of compliance with the font standards set forth in this rule for computer-generated briefs.
(a) Purpose. The purpose of an appendix is to permit the parties to prepare and transmit copies of those portions of the record deemed necessary to an understanding of the issues presented. It may be served with any petition, brief, motion, response, or reply but shall be served as otherwise required by these rules. In any proceeding in which an appendix is required, if the court finds that the appendix is incomplete, it shall direct a party to supply the omitted parts of the appendix. No proceeding shall be determined until an opportunity to supplement the appendix has been given. (b) Contents. The appendix shall contain an index and a conformed copy of the opinion or order to be reviewed and may contain any other portions of the record and other authorities. It shall be separately bound or separated from the petition, brief, motion, response, or reply by a divider and appropriate tab. Asterisks should be used to indicate omissions in documents or testimony of witnesses. If the appendix includes documents filed before January 1991 on paper measuring 8 2 by 14 inches, the documents should be reduced in copying to 8 2 by 11 inches, if practicable. If impracticable, the appendix may measure 8 2 by 14 inches, but it should be bound separately from the document that it accompanies.
Committee Notes 1977 Adoption. This rule is new and has been adopted to encourage the use of an appendix either as a separate document or as a part of another matter. An appendix is optional, except under rules 9.100, 9.110(i), 9.120, and 9.130. If a legal size (8 1/2 by 14 inches) appendix is used, counsel should make it a separate document. The term “conformed copy” is used throughout these rules to mean a true and accurate copy. In an appendix the formal parts of a document may be omitted if not relevant. 1980 Amendment. The rule has been amended to reflect the requirement that an appendix accompany a suggestion filed under rule 9.125. 1992 Amendment. This amendment addresses the transitional problem that arises if legal documents filed before January 1991 must be included in an appendix filed after that date. It encourages the reduction of 8 1/2 by 14 inch papers to 8 1/2 by 11 inches if practicable, and
requires such documents to be bound separately if reduction is impracticable.
NOTICE OF SUPPLEMENTAL AUTHORITY
Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice may identify briefly the points argued on appeal to which the supplemental authorities are pertinent, but shall not contain argument. Copies of the supplemental authorities shall be attached to the notice.
Committee Notes 1996 Adoption. Formerly rule 9.210(g) with the addition of language that requires that supplemental authorities be significant to the issues raised.
(a) Contents of Motion; Response. Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor. The motion shall state the grounds on which it is based, the relief sought, argument in support thereof, and appropriate citations of authority. A motion for an extension of time shall, and other motions if appropriate may, contain a certificate that the movant’s counsel has consulted opposing counsel and that the movant’s counsel is authorized to represent that opposing counsel either has no objection or will promptly file an objection. A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. A party may serve 1 response to a motion within 10 days of service of the motion. The court may shorten or extend the time for response to a motion. (b) Effect on Proceedings. Except as prescribed by subdivision (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts that bear a time relation to it. An order granting an extension of time for preparation of the record, or the index to the record, or for filing of the transcript of proceedings, shall extend automatically, for a like period, the time for service of appellant’s initial brief. A conformed copy of an order extending time shall be transmitted forthwith to the clerk of the lower tribunal until the record has been transmitted to the court. (c) Emergency Relief; Notice. A party seeking emergency relief shall, if practicable, give reasonable notice to all parties. (d) Motions Not Tolling Time. (1) Motions for post-trial release, rule 9.140(g). (2) Motions for stay pending appeal, rule 9.310. (3) Motions relating to oral argument, rule 9.320. (4) Motions relating to joinder and substitution of parties, rule 9.360. (5) Motions relating to amicus curiae, rule 9.370. (6) Motions relating to attorneys’ fees on appeal, rule 9.400. (7) Motions relating to service, rule 9.420.
(8) Motions relating to admission or withdrawal of attorneys, rule 9.440. (9) Motions relating to expediting the appeal.
Committee Notes 1977 Amendment. This rule replaces former rule 3.9. Subdivision (a) is new, except to the extent it replaces former rule 3.9(g), and is intended to outline matters required to be included in motions. These provisions are necessary because it is anticipated that oral argument will only rarely be permitted. Any matters that formerly would have been included in a brief on a motion should be included in the motion. Although affidavits and other documents not appearing in the record may be included in the appendix, it is to be emphasized that such materials are limited to matter germane to the motion, and are not to include matters related to the merits of the case. The advisory committee was of the view that briefs on motions are cumbersome and unnecessary. The advisory committee anticipates that the motion document will become simple and unified, with unnecessary technical language eliminated. Routine motions usually require only limited argument. Provision is made for a response by the opposing party. No further responses by either party are permitted, however, without an order of the court entered on the court’s own motion or the motion of a party. To ensure cooperation and communication between opposing counsel, and conservation of judicial resources, a party moving for an extension of time is required to certify that opposing counsel has been consulted, and either has no objection or intends to serve an objection promptly. The certificate may also be used for other motions if appropriate. Only the motions listed in subdivision (d) do not toll the time for performance of the next act. Subdivision (d)(9) codifies current practice in the supreme court, where motions do not toll time unless the court approves a specific request, for good cause shown, to toll time for the performance of the next act. Very few motions filed in that court warrant a delay in further procedural steps to be taken in a case. The advisory committee considered and rejected as unwise a proposal to allow at least 15 days to perform the next act after a motion tolling time was disposed. Subdivision (b) replaces former rule 3.9(f). Subdivision (c) is new and has been included at the request of members of the judiciary. It is intended to require that counsel make a reasonable effort to give actual notice to opposing counsel when emergency relief is sought from a court. Specific reference to motions to quash or dismiss appeals contained in former rules 3.9(b) and (c) has been eliminated as unnecessary. It is not intended that such motions be abolished. Courts have the inherent power to quash frivolous appeals, and subdivision (a) guarantees to any party the right to file a motion. Although no special time limitations are placed on such motions, delay in presenting any motion may influence the relief granted or sanctions imposed under rule 9.410. As was the case under former rule 3.8, a motion may be filed in either the lower tribunal or the court, in accordance with rule 9.600. 1980 Amendment. Subdivision (b) was amended to require the clerk of either court to notify the other clerk when an extension of time has been granted, up to the time that the record on appeal has been transmitted to the court, so that the clerk of the lower tribunal will be able to properly compute the time for transmitting the record on appeal, and that both courts may properly compute the time for performing subsequent acts. 1992 Amendment. Subdivision (b) was amended to clarify an uncertainty over time deadlines. The existing rule provided that an extension of time for performing an act automatically extended for a comparable period any other act that had a time relation thereto. The briefing schedule, however, is related by time only to the filing of the notice of appeal. Accordingly, this amendment provides that orders extending the time for preparation of the record, the index to the record, or a transcript, automatically extends for the same period the time for service of the initial brief. Subdivision (b) also was amended to correlate with rule 9.600(a), which provides that only an appellate court may grant an extension of time.
STAY PENDING REVIEW
(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.
(b) Exceptions. (1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria. (2) Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the state, any public officer in an official capacity, board, commission, or other public body seeks review; provided that an automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. On motion, the lower tribunal or the court may extend a stay, impose any lawful conditions, or vacate the stay. (c) Bond. (1) Defined. A good and sufficient bond is a bond with a principal and a surety company authorized to do business in the State of Florida, or cash deposited in the circuit court clerk’s office. The lower tribunal shall have continuing jurisdiction to determine the actual sufficiency of any such bond. (2) Conditions. The conditions of a bond shall include a condition to pay or comply with the order in full, including costs; interest; fees; and damages for delay, use, detention, and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may be required by the lower tribunal. (d) Judgment Against a Surety. A surety on a bond conditioning a stay submits to the jurisdiction of the lower tribunal and the court. The liability of the surety on such bond may be enforced by the lower tribunal or the court, after motion and notice, without the necessity of an independent action. (e) Duration. A stay entered by a lower tribunal shall remain in effect during the pendency of all review proceedings in Florida courts until a mandate issues, or unless otherwise modified or vacated. (f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.
Committee Notes 1977 Amendment. This rule replaces former rules 5.1 through 5.12. It implements the Administrative Procedure Act, section 120.68(3), Florida Statutes (Supp. 1976). Subdivision (a) provides for obtaining a stay pending review by filing a motion in the lower tribunal, and clarifies the authority of the lower tribunal to increase or decrease the bond or deal with other conditions of the stay, even though the case is pending before the court. Exceptions are provided in subdivision (b). The rule preserves any statutory right to a stay. The court has plenary power to alter any requirements imposed by the lower tribunal. A party desiring exercise of the court’s power may seek review by motion under subdivision (f) of this rule. Subdivision (b)(1) replaces former rule 5.7. It establishes a fixed formula for determining the amount of the bond if there is a judgment solely for money. This formula shall be automatically accepted by the clerk. If an insurance company is a party to an action with its insured, and the judgment exceeds the insurance company’s limits of liability, the rule permits the insurance company to supersede by posting a bond in the amount of its limits of liability, plus 15 percent. For the insured co-defendant to obtain a stay, bond must be posted for the portion of the judgment entered against the insured co-defendant plus 15 percent. The 15 percent figure was chosen as a reasonable estimate of 2 years’ interest and costs, it being very likely that the stay would remain in effect for over 1 year. Subdivision (b)(2) replaces former rule 5.12. It provides for an automatic stay without bond as soon as a notice invoking jurisdiction is filed by the state or any other public body, other than in criminal cases, which are covered by rule 9.140(c)(3), but the lower tribunal may vacate the stay or require a bond. This rule supersedes Lewis v. Career Service Commission, 332 So.2d 371 (Fla. 1st DCA 1976). Subdivision (c) retains the substance of former rule 5.6, and states the mandatory conditions of the bond.
Subdivision (d) retains the substance of former rule 5.11, with an additional provision for entry of judgment by the court so that if the lower tribunal is an agency, resort to an independent action is unnecessary. Subdivision (e) is new and is intended to permit a stay for which a single bond premium has been paid to remain effective during all review proceedings. The stay is vacated by issuance of mandate or an order vacating it. There are no automatic stays of mandate under these rules, except for the state or a public body under subdivision (b)(2) of this rule, or if a stay as of right is guaranteed by statute. See, e.g., § 120.68(3), Fla. Stat. (Supp. 1976). This rule interacts with rule 9.340, however, so that a party has 15 days between rendition of the court’s decision and issuance of mandate (unless issuance of mandate is expedited) to move for a stay of mandate pending review. If such motion is granted, any stay and bond previously in effect continues, except to the extent of any modifications, by operation of this rule. If circumstances arise requiring alteration of the terms of the stay, the party asserting the need for such change should apply by motion for the appropriate order. Subdivision (f) provides for review of orders regarding stays pending appeal by motion in the court. Although the normal and preferred procedure is for the parties to seek the stay in the lower court, this rule is not intended to limit the constitutional power of the court to issue stay orders after its jurisdiction has been invoked. It is intended that if review of the decision of a Florida court is sought in the United States Supreme Court, a party may move for a stay of mandate, but subdivision (e) does not apply in such cases. 1984 Amendment. Because of recent increases in the statutory rate of interest on judgments, subdivision (b)(1) was amended to provide that 2 years’ interest on the judgment, rather than 15 percent of the judgment, be posted in addition to the principal amount of the judgment. In addition, the subdivision was amended to cure a deficiency in the prior rule revealed by Proprietors Insurance Co. v. Valsecchi, 385 So.2d 749 (Fla. 3d DCA 1980). As under the former rule, if a party has an obligation to pay interest only on the judgment, the bond required for that party shall be equal to the principal amount of the judgment plus 2 years’ interest on it. In some cases, however, an insurer may be liable under its policy to pay interest on the entire amount of the judgment against its insured, notwithstanding that the judgment against it may be limited to a lesser amount by its policy limits. See Highway Casualty Co. v. Johnston, 104 So.2d 734 (Fla. 1958). In that situation, the amended rule requires the insurance company to supersede the limited judgment against it by posting a bond in the amount of the judgment plus 2 years’ interest on the judgment against its insured, so that the bond will more closely approximate the insurer’s actual liability to the plaintiff at the end of the duration of the stay. If such a bond is posted by an insurer, the insured may obtain a stay by posting a bond in the amount of the judgment against it in excess of that superseded by the insurer. The extent of coverage and obligation to pay interest may, in certain cases, require an evidentiary determination by the court. 1992 Amendment. Subdivision (c)(1) was amended to eliminate the ability of a party posting a bond to do so through the use of 2 personal sureties. The committee was of the opinion that a meaningful supersedeas could be obtained only through the use of either a surety company or the posting of cash. The committee also felt, however, that it was appropriate to note that the lower tribunal retained continuing jurisdiction over the actual sufficiency of any such bond.
(a) Summary Affirmance. After service of the initial brief in appeals under rule 9.110, 9.130, or 9.140, or after service of the answer brief if a cross-appeal has been filed, the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated. (b) Summary Reversal. After service of the answer brief in appeals under rule 9.110, 9.130, or 9.140, or after service of the reply brief if a cross-appeal has been filed, the court may summarily reverse the order to be reviewed if the court finds that no meritorious basis exists for affirmance and the order otherwise is subject to reversal. (c) Motions Not Permitted. This rule may be invoked only on the court’s own motion. A party may not request summary disposition.
Court Commentary 1987. This rule contemplates a screening process by the appellate courts. More time will be spent early in the case to save more time later. The rule is fair in that appellant has an opportunity to file a full brief. The thought behind this proposal is to allow expeditious disposition of nonmeritorious appeals or obviously meritorious appeals.
Oral argument may be permitted in any proceeding. A request for oral argument shall be a separate document served by a party not later than the time the last brief of that party is due. Each side will be allowed 20 minutes for
oral argument, except in capital cases in which each side will be allowed 30 minutes. On its own motion or that of a party, the court may require, limit, expand, or dispense with oral argument.
Committee Notes 1977 Amendment. This rule replaces former rule 3.10. As under the former rules, there is no right to oral argument. It is contemplated that oral argument will be granted only if the court believes its consideration of the issues raised will be enhanced. The time ordinarily allowable to each party has been reduced from 30 minutes to 20 minutes to conform with the prevailing practice in the courts. If oral argument is permitted, the order of the court will state the time and place.
REHEARING; CLARIFICATION; CERTIFICATION
(a) Time for Filing; Contents; Response. A motion for rehearing, clarification, or certification may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding. A motion for clarification shall state with particularity the points of law or fact in the court’s decision that, in the opinion of the movant, are in need of clarification. A response may be served within 10 days of service of the motion. When a decision is entered without opinion, and a party believes that a written opinion would provide a legitimate basis for supreme court review, the motion may include a request that the court issue a written opinion. If such a request is made by an attorney, it shall include the following statement: I express a belief, based upon a reasoned and studied professional judgment, that a written opinion will provide a legitimate basis for supreme court review because (state with specificity the reasons why the supreme court would be likely to grant review if an opinion were written). s/______________________________ Attorney for______________________ (Name of party) _______________________________ _______________________________ _______________________________ (address and phone number) _______________________________ (Florida Bar number) (b) Limitation. A party shall not file more than 1 motion for rehearing or for clarification of decision and 1 motion for certification with respect to a particular decision. (c) Exception; Bond Validation Proceedings. A motion for rehearing or for clarification of a decision in proceedings for the validation of bonds or certificates of indebtedness as provided by rule 9.030(a)(1)(B)(ii) may be filed within 10 days of an order or within such other time set by the court. A reply may be served within 5 days of service of the motion. The mandate shall issue forthwith if a timely motion has not been filed. A timely motion shall receive immediate consideration by the court and, if denied, the mandate shall issue forthwith. (d) Exception; Review of District Court Decisions. No motion for rehearing may be filed in the supreme court addressed to the grant or denial of a request for the court to exercise its discretion to review a decision described in
rule 9.120, or addressed to the dismissal of a petition for an extraordinary writ described in rule 9.100(a) when such writ is used to seek review of a district court decision without opinion.
Committee Notes 1977 Amendment. This rule replaces former rule 3.14. Rehearing now must be sought by motion, not by petition. The motion must be filed within 15 days of rendition and a response may be served within 10 days of service of the motion. Only 1 motion will be accepted by the clerk. Re-argument of the issues involved in the case is prohibited. Subdivision (c) provides expedited procedures for issuing a mandate in bond validation cases, in lieu of those prescribed by rule 9.340. Subdivision (d) makes clear that motions for rehearing or for clarification are not permitted as to any decision of the supreme court granting or denying discretionary review under rule 9.120. 2000 Amendment. The amendment has a dual purpose. By omitting the sentence “The motion shall not re-argue the merits of the court’s order,” the amendment is intended to clarify the permissible scope of motions for rehearing and clarification. Nevertheless, the essential purpose of a motion for rehearing remains the same. It should be utilized to bring to the attention of the court points of law or fact that it has overlooked or misapprehended in its decision, not to express mere disagreement with its resolution of the issues on appeal. The amendment also codifies the decisional law’s prohibition against issues in post-decision motions that have not previously been raised in the proceeding. 2002 Amendment. The addition of the language at the end of subdivision (a) allows a party to request the court to issue a written opinion that would allow review to the supreme court, if the initial decision is issued without opinion. This language is not intended to restrict the ability of parties to seek rehearing or clarification of such decisions on other grounds.
DETERMINATION OF CAUSES IN A DISTRICT COURT OF APPEAL EN BANC
(a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal participating may order that a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions. The en banc decision shall be by a majority of the active judges actually participating and voting on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision. (b) En Banc Proceedings by Divisions. If a district court of appeal chooses to sit in subject-matter divisions as approved by the Supreme Court, en banc determinations shall be limited to those regular active judges within the division to which the case is assigned, unless the chief judge determines that the case involves matters of general application and that en banc determination should be made by all regular active judges. However, in the absence of such determination by the chief judge, the full court may determine by an affirmative vote of three-fifths of the active judges that the case involves matters that should be heard and decided by the full court, in which event en banc determination on the merits of the case shall be made by an affirmative vote of a majority of the regular active judges participating. (c) Hearings En Banc. A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken. (d) Rehearings En Banc. (1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by rule 9.330, a party may move for an en banc rehearing solely on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A response may be served within 10 days of service of the motion. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.
(2) Required Statement for Rehearing En Banc. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is discharged without filing a motion for rehearing en banc unless one of the grounds set forth in (1) is clearly met. If filed by an attorney, the motion shall contain either or both of the following statements: I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance. Or I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court (citing specifically the case or cases). /s/ Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. .................... (3) Disposition of Motion for Rehearing En Banc. A motion for rehearing en banc shall be disposed of by order. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.
Committee Notes 1982 Amendment. This rule is patterned in part after the en banc rule of the United States Court of Appeals for the Fifth and Eleventh Circuits. The rule is an essential part of the philosophy of our present appellate structure because the supreme court no longer has jurisdiction to review intra-district conflict. The new appellate structural scheme requires the district courts of appeal to resolve conflict within their respective districts through the en banc process. By so doing, this should result in a clear statement of the law applicable to that particular district. Subdivision (a) provides that a majority vote of the active and participating members of the district court is necessary to set a case for hearing en banc or rehearing en banc. The issues on the merits will be decided by a simple majority of the judges actually participating in the en banc process, without regard to recusals or a judge’s absence for illness. All judges in regular active service, not excluded for cause, will constitute the en banc panel. Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by supreme court precedent in the exercise of its conflict jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity. The effect of an en banc tie vote is self-explanatory, but such a vote does suggest that the matter is one that should be certified to the supreme court for resolution. Subdivision (b) provides that hearings en banc may not be sought by the litigants; such hearings may be ordered only by the district court sua sponte. Subdivision (c)(1) governs rehearings en banc. A litigant may apply for an en banc rehearing only on the ground that intra-district conflict of decisions exists, and then only in conjunction with a timely filed motion for rehearing under rule 9.330. The en banc rule does not allow for a separate motion for an en banc rehearing nor does it require the district court to enter a separate order on such request. Once a timely motion for rehearing en banc is filed in conjunction with a traditional petition for rehearing, the 3 judges on the initial panel must consider the motion. A vote of the entire court may be initiated by any single judge on the panel. Any other judge on the court may also trigger a vote by the entire court. Nonpanel judges are not required to review petitions for rehearing en banc until a vote is requested by another judge, although all petitions for rehearing en banc should be circulated to nonpanel judges. The court may on its own motion order a rehearing en banc. Subdivision (c)(2) requires a signed statement of counsel certifying a bona fide belief that an en banc hearing is necessary to ensure decisional harmony within the district. Subdivision (c)(3) is intended to prevent baseless motions for en banc rehearings from absorbing excessive judicial time and labor. The district courts will not enter orders denying motions for en banc rehearings. If a rehearing en banc is granted, the court may order briefs from the parties and set the case for oral argument. 1992 Amendment. Subdivision (c)(3) was amended to correct a linguistic error found in the original subdivision. COURT COMMENTARY
1994 Amendment. The intent of this amendment is to authorize courts sitting in subject-matter divisions to have cases that are assigned to a division decided en banc by that division without participation by the regular active judges assigned to another division. The presumption is that en banc consideration will usually be limited to the division in which the case is pending. However, recognizing that in exceptional instances it may be preferable for the matter under review to be considered by the whole court, the case can be brought before all regular active judges by the chief judge or by an affirmative vote of three-fifths of the regular active judges on the whole court. Once the matter is before the whole court en banc, a vote on the merits will be by a majority of the regular active judges as now provided in rule 9.331.
(a) Issuance of Mandate. Unless otherwise ordered by the court or provided by these rules, the clerk shall issue such mandate or process as may be directed by the court after expiration of 15 days from the date of an order or decision. A copy thereof, or notice of its issuance, shall be served on all parties. (b) Extension of Time for Issuance of Mandate. If a timely motion for rehearing, clarification, or certification has been filed, the time for issuance of the mandate or other process shall be extended until 15 days after rendition of the order denying the motion, or, if granted, until 15 days after the cause has been fully determined. (c) Entry of Money Judgment. If a judgment of reversal is entered that requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.
Committee Notes 1977 Amendment. This rule replaces former rule 3.15. The power of the court to expedite as well as delay issuance of the mandate, with or without motion, has been made express. That part of former rule 3.15(a) regarding money judgments has been eliminated as unnecessary. It is not intended to change the substantive law there stated. The 15-day delay in issuance of mandate is necessary to allow a stay to remain in effect for purposes of rule 9.310(e). This automatic delay is inapplicable to bond validation proceedings, which are governed by rule 9.330(c). 1984 Amendment. Subdivision (c) was added. It is a repromulgation of former rule 3.15(a), which was deleted in 1977 as being unnecessary. Experience proved it to be necessary.
DISMISSAL OF CAUSES
(a) Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal. (b) Voluntary Dismissal. A proceeding of an appellant or petitioner may be dismissed before a decision on the merits by filing a notice of dismissal with the clerk of the court without affecting the proceedings filed by joinder or cross-appeal; provided that dismissal shall not be effective until 10 days after filing the notice of appeal or until 10 days after the time prescribed by rule 9.110(b), whichever is later. (c) Clerk’s Duty. When a proceeding is dismissed under this rule, the clerk of the court shall notify the clerk of the lower tribunal.
Committee Notes 1977 Amendment. Subdivision (a) retains the substance of former rule 3.13(a). On the filing of a stipulation of dismissal, the clerk of the court will dismiss the case as to the parties signing the stipulation. Subdivision (b) is intended to allow an appellant to dismiss the appeal but a timely perfected cross-appeal would continue. A voluntary dismissal would not be effective until after the time for joinder in appeal or cross-appeal. This limitation was created so that an opposing party desiring to have adverse rulings reviewed by a cross-appeal cannot be trapped by a voluntary dismissal by the appellant after the appeal time has run, but before an appellee has filed the notice of joinder or cross-appeal. Subdivision (c) retains the substance of former rule 3.13(c).
(a) Joinder. A party to the cause in the lower tribunal who desires to join in a proceeding as a petitioner or appellant shall file a notice to that effect within 10 days of service of the petition or notice or within the time prescribed by rule 9.110(b), whichever is later. (b) Attorneys, Representatives, and Guardians Ad Litem. Attorneys, representatives, and guardians ad litem in the lower tribunal shall retain their status in the court unless others are duly appointed or substituted; however, for limited representation proceedings under Florida Family Law Rule of Procedure 12.040, representation terminates upon the filing of a notice of completion titled “Termination of Limited Appearance” pursuant to rule 12.040(c). (c) Substitution of Parties. (1) If substitution of a party is necessary for any reason, the court may so order on its own motion or that of a party. (2) Public officers as parties in their official capacities may be described by their official titles rather than by name. Their successors in office shall be automatically substituted as parties. (3) If a party dies while a proceeding is pending and that party’s rights survive, the court may order the substitution of the proper party on its own motion or that of any interested person. (4) If a person entitled to file a notice dies before filing and that person’s rights survive, the notice may be filed by the personal representative, attorney of record, or, if none, by any interested person. Following filing, the proper party shall be substituted.
Committee Notes 1977 Amendment. This rule is intended as a simplification of the former rules with no substantial change in practice. Subdivision (a) is a simplification of the provisions of former rule 3.11(b), with modifications recognizing the elimination of assignments of error. Subdivision (b) retains the substance of former rule 3.11(d). Subdivision (c)(1) substantially simplifies the procedure for substituting parties. This change is in keeping with the overall concept of this revision that these rules should identify material events that may or should occur in appellate proceedings and specify in general terms how that event should be brought to the attention of the court and how the parties should proceed. The manner in which these events shall be resolved is left to the courts, the parties, the substantive law, and the circumstances of the particular case. Subdivision (c)(2) is new and is intended to avoid the necessity of motions for substitution if the person holding a public office is changed during the course of proceedings. It should be noted that the style of the case does not necessarily change. Subdivision (c)(4) is new, and is intended to simplify the procedure and avoid confusion if a party dies before an appellate proceeding is instituted. Substitutions in such cases are to be made according to subdivision (c)(1).
(a) When Permitted. An amicus curiae may file a brief only by leave of court. A motion for leave to file must state the movant’s interest, the particular issue to be addressed, how the movant can assist the court in the disposition of the case, and whether all parties consent to the filing of the brief. (b) Contents and Form. An amicus brief must comply with Rule 9.210(b) but shall omit a statement of the case and facts and may not exceed 20 pages. The cover must identify the party or parties supported. An amicus brief must include a concise statement of the identity of the amicus curiae and its interest in the case. (c) Time for Service. An amicus curiae must serve its brief no later than 5 days after the first brief, petition, or response of the party being supported is served. An amicus curiae that does not support either party must serve its
brief no later than 5 days after the initial brief or petition is served. A court may grant leave for later service, specifying the time within which an opposing party may respond. The service of an amicus curiae brief does not alter or extend the briefing deadlines for the parties. An amicus curiae may not file a reply brief.
Committee Notes 1977 Amendment. This rule replaces former rule 3.7(k) and expands the circumstances in which amicus curiae briefs may be filed to recognize the power of the court to request amicus curiae briefs.
COSTS AND ATTORNEYS’ FEES
(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include (1) fees for filing and service of process; (2) charges for preparation of the record; (3) bond premiums; and (4) other costs permitted by law. Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate. (b) Attorneys’ Fees. A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment. (c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.
Committee Notes 1977 Amendment. Subdivision (a) replaces former rules 3.16(a) and (b). It specifies allowable cost items according to the current practice. Item (3) is not intended to apply to bail bond premiums. Item (4) is intended to permit future flexibility. This rule provides that the prevailing party must move for costs in the lower tribunal within 30 days after issuance of the mandate. Subdivision (b) retains the substance of former rule 3.16(e). The motion for attorneys’ fees must contain a statement of the legal basis for recovery. The elimination of the reference in the former rule to attorneys’ fees “allowable by law” is not intended to give a right to assessment of attorneys’ fees unless otherwise permitted by substantive law. Subdivision (c) replaces former rules 3.16(c) and (d). It changes from 20 days to 30 days the time for filing a motion to review an assessment of costs or attorneys’ fees by a lower tribunal acting under order of the court.
After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.
Committee Notes 1977 Amendment. This rule replaces former rule 3.17. This rule specifies the penalties or sanctions that generally are imposed, but does not limit the sanctions available to the court. The only change in substance is that this rule provides for 10 days notice to the offending party before imposition of sanctions.
RULE 9.420. (a) Filing.
FILING; SERVICE OF COPIES; COMPUTATION OF TIME
(1) Generally. Filing may be accomplished by filing with the clerk; provided that a justice or judge may accept the documents for filing, and shall note the filing date and immediately transmit them to the office of the clerk. (2) Inmate Filing. A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date. (b) Service. All original papers shall be filed either before service or immediately thereafter. A copy of all documents filed under these rules shall, before filing or immediately thereafter, be served on each of the parties. The lower tribunal, before the record is transmitted, or the court, on motion, may limit the number of copies to be served. (c) Method of Service. If service is required or permitted to be made on a party represented by an attorney, service shall be made on the attorney unless service on the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean (A) handing it to the attorney or to the party, or (B) leaving it at the attorney’s or party’s office with the clerk or other person in charge thereof, or (C) if there is no one in charge, leaving it in a conspicuous place therein, or (D) if the office is closed or the person to be served has no office, leaving it at the attorney’s or party’s usual place of abode with some person of the attorney’s or party’s family above 15 years of age and informing such person of the contents. Service by mail shall be complete on mailing. (d) Proof of Service. A certificate of service that complies in substance with the appropriate form below shall be taken as prima facie proof of service in compliance with these rules. The certificate shall specify the party each attorney represents. (1) By Attorney: I certify that a copy hereof has been furnished to .....(here insert name or names)..... by .....(delivery) (mail)..... on .....(date)......
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. ................. (2) By Pro Se Inmate: I certify that I placed this document in the hands of .....(here insert name of institution official)..... for mailing to .....(here insert name or names)..... on .....(date)......
.....(name)..... .....(address)..... .....(prison identification number)..... (3) By Other Pro Se Litigants:
I certify that a copy hereof has been furnished to .....(here insert name or names)..... by .....(delivery) (mail)..... on .....(date)......
.....(name)..... .....(address)..... .....(phone number)..... (e) Additional Time After Service by Mail. If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period. (f) Computation. In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday described below, in which event, the period shall run until the end of the next day that is neither a Saturday, Sunday, nor holiday. If the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. As used in this rule, holiday means (1) (2) (3) (4) (5) (6) (7) (8) (9) New Year’s Day; Martin Luther King, Jr.’s Birthday, the third Monday in January; Washington’s Birthday, the third Monday in February; Good Friday; Memorial Day, the last Monday in May; Independence Day; Labor Day, the first Monday in September; Columbus Day, the second Monday in October; Veterans’ Day;
(10) General Election Day; (11) Thanksgiving Day, the fourth Thursday in November; (12) Christmas Day; (13) any statewide primary day; (14) any Monday immediately following a Sunday on which one of the foregoing holidays falls; and (15) any other day when the clerk’s office is closed.
Committee Notes 1977 Amendment. Subdivision (a) replaces former rule 3.4(a). The last sentence of former rule 3.4(a) was eliminated as superfluous. The filing of papers with a judge or justice is permitted at the discretion of the judge or justice. The advisory committee recommends that the ability to
file with a judge or justice be exercised only if necessary, and that care be taken not to discuss in any manner the merits of the document being filed. See Fla. Code Prof. Resp., DR 7-110(B) (now R. Regulating Fla. Bar 4-3.5(b)); Fla. Code Jud. Conduct, Canon 3(A)(4). Subdivision (b) replaces and simplifies former rules 3.4(b)(5) and 3.6(i)(3). The substance of the last sentence of former rule 3.4(b)(5) is preserved. It should be noted that except for the notices or petitions that invoke jurisdiction, these rules generally provide for service by a certain time rather than filing. Under this provision filing must be done before service or immediately thereafter. Emphasis has been placed on service so as to eliminate the hardship on parties caused by tardy service under the former rules and to eliminate the burden placed on the courts by motions for extension of time resulting from such tardy service. It is anticipated that tardy filing will occur less frequently under these rules than tardy service under the former rules because the parties are unlikely to act in a manner that would irritate the court. The manner for service and proof thereof is provided in subdivision (c). Subdivision (d) replaces former rule 3.4(b)(3) and provides that if a party or clerk is required or permitted to do an act within a prescribed time after service, 5 days (instead of 3 days under the former rule) shall be added to the time if service is by mail. Subdivision (e) replaces former rule 3.18 with no substantial change. “Holiday” is defined to include any day the clerk’s office is closed whether or not done by order of the court. The holidays specifically listed have been included, even though many courts do not recognize them as holidays, to not place a burden on practitioners to check whether an individual court plans to observe a particular holiday. 1980 Amendment. Subdivision (b) was amended to provide that either the lower tribunal or the court may limit the number of copies to be served. The rule contemplates that the number of copies may be limited on any showing of good cause, for example, that the number of copies involved is onerous or that the appeal involves questions with which some parties have no interest in the outcome or are so remotely involved as not to justify furnishing a complete record to them at appellant’s initial cost. The availability of the original record at the clerk’s office of the lower tribunal until due at the appellate court is a factor to be considered. Court Commentary 2000. Subdivision (a)(2) codifies the Florida Supreme Court’s holding in Thompson v. State, 761 So. 2d 324 (Fla. 2000).
PROCEEDINGS BY INDIGENTS
(a) Motion and Affidavit. A party who has the right to seek review by appeal without payment of costs shall, unless the court directs otherwise, file a motion in the lower tribunal, with an affidavit showing the party’s inability either to pay fees and costs or to give security therefor. For review by original proceedings under rule 9.100, unless the court directs otherwise, the party shall file the motion and affidavit with the court. If the motion is granted, the party may proceed without further application to the court and without either the prepayment of fees or costs in the lower tribunal or court or the giving of security therefor. Reasons for denying the motion shall be stated in writing. Review of decisions by the lower tribunal shall be by motion filed in the court. (b) Incarcerated Parties. (1) Presumptions. In the absence of evidence to the contrary, an appellate court may, in its discretion, presume that (A) assertions in an affidavit filed by an incarcerated party under this rule are true, and (B) in cases involving criminal or collateral criminal proceedings, an incarcerated party who has been declared indigent for purposes of proceedings in the lower tribunal remains indigent. (2) Non-Criminal Proceedings. Except in cases involving criminal or collateral proceedings, a motion and affidavit under this rule by a person who has been convicted of a crime and is incarcerated for that crime or who is being held in custody pending extradition or sentencing shall contain substantially the same information as required by rule 9.900(i). The determination of whether the case involves an appeal from an original criminal or collateral proceeding depends on the substance of the issues raised and not on the form or title of the petition or complaint. In these non-criminal cases, the court may require the party to make a partial prepayment of court costs or fees and to make continued partial payments until the full amount is paid.
1977 Adoption. This rule governs the manner in which an indigent may proceed with an appeal without payment of fees or costs and without bond. Adverse rulings by the lower tribunal must state in writing the reasons for denial. Provision is made for review by motion. Such motion may be made without the filing of fees as long as a notice has been filed, the filing of fees not being jurisdictional. This rule is not intended to expand the rights of indigents to proceed with an appeal without payment of fees or costs. The existence of such rights is a matter governed by substantive law.
(a) Foreign Attorneys. An attorney who is an active member in good standing of the bar of another state may be permitted to appear in a proceeding upon compliance with Florida Rule of Judicial Administration 2.510. (b) Withdrawal of Attorneys. An attorney shall not be permitted to withdraw unless the withdrawal is approved by the court. The attorney shall file a motion for that purpose stating the reasons for withdrawal and the client’s address. A copy of the motion shall be served on the client and adverse parties.
Committee Notes 1977 Amendment. This rule replaces former rule 2.3 with unnecessary subdivisions deleted. The deletion of former rule 2.3(c) was not intended to authorize the practice of law by research aides or secretaries to any justice or judge or otherwise approve actions inconsistent with the high standards of ethical conduct expected of such persons. Subdivision (a) permits foreign attorneys to appear on motion filed and granted at any time. See Fla. Bar Integr. Rule By-Laws, art. II, § 2. There is no requirement that the foreign attorney be from a jurisdiction giving a reciprocal right to members of The Florida Bar. This rule leaves disposition of motions to appear to the discretion of the court. Subdivision (b) is intended to protect the rights of parties and attorneys, and the needs of the judicial system. This rule does not affect the right of a party to employ additional attorneys who, if members of The Florida Bar, may appear at any time. 2002 Amendment. The amendments to subdivision (a) are intended to make that subdivision consistent with Florida Rule of Judicial Administration 2.061, which was adopted in 2001, and the amendments to subdivision (b) are intended to make that subdivision consistent with Florida Rule of Judicial Administration 2.060(i).
ADVISORY OPINIONS TO GOVERNOR
(a) Filing. A request by the governor for an advisory opinion from the justices of the supreme court on a question affecting gubernatorial powers and duties shall be in writing. The original and 7 copies shall be filed with the clerk of the supreme court. (b) Procedure. As soon as practicable after the filing of the request, the justices shall determine whether the request is within the purview of article IV, section 1(c), Florida Constitution, and proceed as follows: (1) If 4 justices concur that the question is not within that purview, the governor shall be advised forthwith in writing and a copy shall be filed in the clerk’s office. (2) If the request is within that purview, the court may permit persons whose substantial interests may be affected to be heard on the questions presented through briefs, oral argument, or both. If the court determines to receive briefs or hear oral argument, it shall set the time for filing briefs, the date of argument, and the time allotted. The court may appoint amicus curiae and prescribe their duties. (3) The justices shall file their opinions in the clerk’s office. Copies shall be delivered to the governor.
Committee Notes 1977 Amendment. This rule simplifies former rule 2.1(h) without material change.
ADVISORY OPINIONS TO ATTORNEY GENERAL
(a) Filing. A request by the attorney general for an advisory opinion from the justices of the supreme court concerning the validity of an initiative petition for the amendment of the Florida Constitution shall be in writing. The original and 7 copies shall be filed with the clerk of the supreme court. (b) Contents of Request. In addition to the language of the proposed amendment, the request referenced in subdivision (a) must contain the following information: (1) the name and address of the sponsor of the initiative petition; (2) the name and address of the sponsor’s attorney, if the sponsor is represented; (3) a statement as to whether the sponsor has obtained the requisite number of signatures on the initiative petition to have the proposed amendment put on the ballot; (4) if the sponsor has not obtained the requisite number of signatures on the initiative petition to have the proposed amendment put on the ballot, the current status of the signature-collection process; (5) the date of the election during which the sponsor is planning to submit the proposed amendment to the voters; (6) the last possible date that the ballot for the target election can be printed in order to be ready for the election; (7) a statement identifying the date by which the Financial Impact Statement will be filed, if the Financial Impact Statement is not filed concurrently with the request; and (8) the names and complete mailing addresses of all of the parties who are to be served. (c) Procedure. The justices must initially determine whether the request is within the purview of article V, section 3(b)(10), Florida Constitution, and proceed as follows: (1) If 4 justices concur that the request is not within that purview, the attorney general will be advised immediately in writing and a copy will be filed in the clerk’s office. (2) If the request is within the purview, the court may permit the attorney general and other interested persons to be heard on the questions presented through briefs, oral argument, or both. If the court decides to receive briefs or hear oral argument, it will establish the time for filing briefs, the date of argument, and the time allotted. RULE 9.600. JURISDICTION OF LOWER TRIBUNAL PENDING REVIEW
(a) Concurrent Jurisdiction. Only the court may grant an extension of time for any act required by these rules. Before the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any other procedural matter relating to the cause, subject to the control of the court. (b) Further Proceedings. If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal. (c) Family Law Matters. In family law matters: (1) The lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, attorneys’ fees and costs for services rendered in the lower tribunal, temporary attorneys’ fees and
costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal. (2) The receipt, payment, or transfer of funds or property under an order in a family law matter shall not prejudice the rights of appeal of any party. The lower tribunal shall have the jurisdiction to impose, modify, or dissolve conditions upon the receipt or payment of such awards in order to protect the interests of the parties during the appeal. (3) Review of orders entered pursuant to this subdivision shall be by motion filed in the court within 30 days of rendition. (d) Criminal Cases. The lower tribunal shall retain jurisdiction to consider motions pursuant to Florida Rules of Criminal Procedure 3.800(b)(2) and in conjunction with post-trial release pursuant to rule 9.140(g).
Committee Notes 1977 Amendment. This rule governs the jurisdiction of the lower tribunal during the pendency of review proceedings, except for interlocutory appeals. If an interlocutory appeal is taken, the lower tribunal’s jurisdiction is governed by rule 9.130(f). Subdivision (b) replaces former rule 3.8(a). It allows for continuation of various aspects of the proceeding in the lower tribunal, as may be allowed by the court, without a formal remand of the cause. This rule is intended to prevent unnecessary delays in the resolution of disputes. Subdivision (c) is derived from former rule 3.8(b). It provides for jurisdiction in the lower tribunal to enter and enforce orders awarding separate maintenance, child support, alimony, temporary suit money, and attorneys’ fees. Such orders may be reviewed by motion. 1980 Amendment. Subdivision (a) was amended to clarify the appellate court’s paramount control over the lower tribunal in the exercise of its concurrent jurisdiction over procedural matters. This amendment would allow the appellate court to limit the number of extensions of time granted by a lower tribunal, for example. 1994 Amendment. Subdivision (c) was amended to conform to and implement section 61.16(1), Florida Statutes (1994 Supp.), authorizing the lower tribunal to award temporary appellate attorneys’ fees, suit money, and costs. 1996 Amendment. New rule 9.600(d) recognizes the jurisdiction of the trial courts, while an appeal is pending, to rule on motions for post-trial release, as authorized by rule 9.140(g), and to decide motions pursuant to Florida Rule of Criminal Procedure 3.800(a), as authorized by case law such as Barber v. State, 590 So.2d 527 (Fla. 2d DCA 1991).
UNIFORM CITATION SYSTEM
This rule applies to all legal documents, including court opinions. Except for citations to case reporters, all citation forms should be spelled out in full if used as an integral part of a sentence either in the text or in footnotes. Abbreviated forms as shown in this rule should be used if the citation is intended to stand alone either in the text or in footnotes. (a) Florida Supreme Court. (1) 1846–1886: Livingston v. L’Engle, 22 Fla. 427 (1886). (2) Fenelon v. State, 594 So. 2d 292 (Fla. 1992). (3) For recent opinions not yet published in the Southern Reporter, cite to Florida Law Weekly: Traylor v. State, 17 Fla. L. Weekly S42 (Fla. Jan. 16, 1992). If not therein, cite to the slip opinion: Medina v. State, No. SC00280 (Fla. Mar. 14, 2002). (b) Florida District Courts of Appeal. (1) Sotolongo v. State, 530 So. 2d 514 (Fla. 2d DCA 1988); Buncayo v. Dribin, 533 So. 2d 935 (Fla. 3d DCA
1988). (2) For recent opinions not yet published in Southern Reporter, cite to Florida Law Weekly: Myers v. State, 16 Fla. L. Weekly D1507 (Fla. 4th DCA June 5, 1991). If not therein, cite to the slip opinion: Fleming v. State, No. 1D01-2734 (Fla. 1st DCA Mar. 6, 2002). (c) Florida Circuit Courts and County Courts. (1) Whidden v. Francis, 27 Fla. Supp. 80 (Fla. 11th Cir. Ct. 1966). (2) State v. Alvarez, 42 Fla. Supp. 83 (Fla. Dade Cty. Ct. 1975). (3) For opinions not published in Florida Supplement, cite to Florida Law Weekly: State v. Campeau, 16 Fla. L. Weekly C65 (Fla. 9th Cir. Ct. Nov. 7, 1990). If not therein, cite to the slip opinion: State v. Campeau, No. 90-4363 (Fla. 9th Cir. Ct. Nov. 7, 1990). (d) Florida Administrative Agencies. (Cite if not in Southern Reporter.) (1) For decisions of the Public Employees Relations Commission: Indian River Educ. Ass’n v. School Bd., 4 F.P.E.R. ¶ 4262 (1978). (2) For decisions of the Florida Public Service Commission: In re Application of Tampa Elec. Co., 81 F.P.S.C. 2:120 (1981). (3) For decisions of all other agencies: Insurance Co. v. Department of Ins., 2 F.A.L.R. 648-A (Fla. Dept. of Insurance 1980). (e) Florida Constitution. (Year of adoption should be given if necessary to avoid confusion.) Art. V, § 3(b)(3), Fla. Const. (f) Florida Statutes (Official). § 350.34, Fla. Stat. (1973). § 120.53, Fla. Stat. (Supp. 1974). (g) Florida Statutes Annotated. (To be used only for court-adopted rules, or references to other nonstatutory materials that do not appear in an official publication.) 32 Fla. Stat. Ann. 116 (Supp. 1975). (h) Florida Laws. (Cite if not in Fla. Stat. or if desired for clarity or adoption reference.) (1) After 1956: Ch. 74-177, § 5, at 473, Laws of Fla. (2) Before 1957: Ch. 22000, Laws of Fla. (1943). (i) Florida Rules. Fla. R. Civ. P. 1.180. Fla. R. Jud. Admin. 2.035.
Fla. R. Crim. P. 3.850. Fla. R. Work. Comp. P. 4.113. Fla. Prob. R. 5.120. Fla. R. Traf. Ct. 6.165. Fla. Sm. Cl. R. 7.070. Fla. R. Juv. P. 8.070. Fla. R. App. P. 9.100. Fla. R. Med. 10.100. Fla. R. Arb. 11.010. Fla. Fam. L. R. P. 12.010. Fla. Admin. Code R. 62D-2.014. R. Regulating Fla. Bar 4-1.10. Fla. Bar Found. By-Laws, art. 2.19(b). Fla. Bar Found. Charter, art. III, §3.4. Fla. Bar Integr. R., art. XI, §11.09. Fla. Jud. Qual. Comm’n R. 9. Fla. Std. Jury Instr. (Civ.) 6.4(c). Fla. Std. Jury Instr. (Crim.) 2.03. Fla. Std. Jury Instr. (Crim.) Robbery. Fla. Stds. Imposing Law. Sancs. 9.32(a). Fla. Bar Admiss. R. 3-23.1. (j) Florida Attorney General Opinions. Op. Att’y Gen. Fla. 73-178 (1973). (k) United States Supreme Court. Sansone v. United States, 380 U.S. 343 (1965). (Cite to United States Reports, if published therein; otherwise cite to Supreme Court Reporter, Lawyer’s Edition, or United States Law Week, in that order of preference. For opinions not published in these reporters, cite to Florida Law Weekly Federal: California v. Hodari D., 13 Fla. L. Weekly Fed. S249 (U.S. Apr. 23, 1991). (l) Federal Courts of Appeals.
Gulf Oil Corp. v. Bivins, 276 F.2d 753 (5th Cir. 1960). For opinions not published in the Federal Reporter, cite to Florida Law Weekly Federal: Cunningham v. Zant, 13 Fla. L. Weekly Fed. C591 (11th Cir. March 27, 1991). (m) Federal District Courts. Pugh v. Rainwater, 332 F. Supp. 1107 (S.D. Fla. 1971). For opinions not published in the Federal Supplement, cite to Florida Law Weekly Federal: Wasko v. Dugger, 13 Fla. L. Weekly Fed. D183 (S.D. Fla. Apr. 2, 1991). (n) United States Constitution. Art. IV, § 2, cl. 2, U.S. Const. Amend. V, U.S. Const. (o) Other Citations. When referring to specific material within a Florida court’s opinion, pinpoint citation to the page of the Southern Reporter where that material occurs is optional, although preferred. All other citations shall be in the form prescribed by the latest edition of The Bluebook: A Uniform System of Citation, The Harvard Law Review Association, Gannett House, Cambridge, MA 02138. Citations not covered in this rule or in The Bluebook shall be in the form prescribed by the Florida Style Manual published by the Florida State University Law Review, Tallahassee, FL 32306. (p) Case Names. Case names shall be underscored (or italicized) in text and in footnotes.
Committee Notes 1977 Adoption. This rule is new and is included to standardize appellate practice and ease the burdens on the courts. It is the duty of each litigant and counsel to assist the judicial system by use of these standard forms of citation. Use of these citation forms, however, has not been made mandatory. 1992 Amendment. Rule 9.800 was updated to reflect changes in the available reporters. Additionally, the citations to new rules have been added and citations to rules no longer in use have been deleted.
(a) Notice of Appeal. IN THE .....(NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED)..... Case No. _________________ ___________________, ) Defendant/Appellant, ) ) v. ) NOTICE OF APPEAL ) ___________________, ) Plaintiff/Appellee. ) ___________________ ) NOTICE IS GIVEN that ___________________, Defendant/Appellant, appeals to the .....(name of court that has appellate jurisdiction)....., the order of this court rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders designated in the notice of appeal shall be attached in accordance with rules 9.110(d), and 9.160(c).] The nature of the order is a final order .....(state nature of the order)......
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. .................... (b) Notice of Cross-Appeal. IN THE .....(NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED)..... Case No. _________________ ___________________, ) Defendant/Appellant,) Cross-Appellee, ) ) v. ) ) ___________________, ) Plaintiff/Appellee, ) Cross-Appellant. ) ___________________ )
NOTICE OF CROSS-APPEAL
NOTICE IS GIVEN that ___________________, Plaintiff/Cross-Appellant, appeals to the .....(name of court that has appellate jurisdiction)....., the order of this court rendered [see rule 9.020(h)] .....(date)...... The nature of the order is a final order .....(state nature of the order)......
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. .................... (c) Notice of Appeal of Non-Final Order. IN THE .....(NAME OF LOWER TRIBUNAL WHOSE NON-FINAL ORDER IS TO BE REVIEWED)..... Case No. ___________ ___________________, ) Defendant/Appellant, ) ) v. ) NOTICE OF APPEAL ) OF A NON-FINAL ___________________, ) ORDER Plaintiff/Appellee. ) ____________________ ) NOTICE IS GIVEN that ___________________, Defendant/Appellant, appeals to the .....(name of court that has appellate jurisdiction)....., the order of this court rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders designated in the notice of appeal shall be attached in accordance with rules 9.110(d), 9.130(c), and 9.160(c).] The nature of the order is a non-final order .....(state nature of the order)......
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. .................... (d) Notice to Invoke Discretionary Jurisdiction of Supreme Court. IN THE DISTRICT COURT OF APPEAL OF FLORIDA, _______________ DISTRICT Case No. ____________ ___________________, ) Defendant/Petitioner, ) ) v. ) NOTICE TO INVOKE ) DISCRETIONARY ___________________, ) JURISDICTION Plaintiff/Respondent. ) ___________________ ) NOTICE IS GIVEN that ___________________, Defendant/Petitioner, invokes the discretionary jurisdiction of the supreme court to review the decision of this court rendered [see rule 9.020(h)] .....(date)...... The decision .....(state why the decision is within the supreme court’s jurisdiction)......1
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. ....................
1. The choices are: a. expressly declares valid a state statute. b. expressly construes a provision of the state or federal constitution. c. expressly affects a class of constitutional or state officers. d. expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. e. passes on a question certified to be of great public importance. f. is certified to be in direct conflict with decisions of other district courts of appeal. See rule 9.030(a)(2)(A).
(e) Notice of Administrative Appeal. IN THE .....(NAME OF AGENCY, OFFICER, BOARD, COMMISSION, OR BODY WHOSE ORDER IS TO BE REVIEWED)..... Case No. ____________ ___________________, ) Defendant*/Appellant, ) ) v. ) ) ___________________, ) Plaintiff*/Appellee. )
NOTICE OF ADMINISTRATIVE APPEAL
___________________ ) NOTICE IS GIVEN that ___________________, Appellant, appeals to the .....(name of court that has appellate jurisdiction)....., the order of this .....(name of agency, officer, board, commission, or body whose order is to be reviewed)..... rendered [see rule 9.020(h)] .....(date)...... [Conformed copies of orders designated in the notice of appeal shall be attached in accordance with rules 9.110(d) and 9.130(c).] The nature of the order is .....(state nature of the order)......
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. ....................
*or other appropriate designation.
(f) Notice of Appeal of an Order Dismissing a Petition for a Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor. IN THE CIRCUIT COURT FOR THE ___________ JUDICIAL CIRCUIT (NUMERICAL DESIGNATION OF THE CIRCUIT) IN AND FOR _____________ COUNTY, FLORIDA Case No.______________ In re: Petition for a Judicial Waiver of Parental Notice of Termination of Pregnancy. ) ) ) ) ) ______________________________ ) (Your pseudonym or initials) ) ) Appellant. ) ________________________________ ) NOTICE IS GIVEN that _________________ (your pseudonym or initials), appeals to the __________________ (District Court with appellate jurisdiction), the order of this court rendered ______________ (enter the date that the order was filed on the clerk’s docket) [See rule 9.020(h)]. The nature of the order is a final order dismissing a petition for a judicial waiver of parental notice of termination of pregnancy. Signature:______________________ (As signed on your petition for judicial waiver if you are representing yourself) Date:_________________________ OR Attorney for __________ (pseudonym or initials of appellant) (address and phone number of attorney) Florida Bar No. __________________ ADVISORY NOTICE TO THE MINOR
YOU ARE NOTIFIED AS FOLLOWS: 1. You are entitled to appeal the order dismissing your petition for a judicial waiver of parental notice of termination of pregnancy. You do not have to pay a filing fee for the appeal. 2. If you wish to appeal, you must file a notice of appeal. A form for the notice of appeal (Fla. R. App. P. 9.900(f)) will be provided to you with the order dismissing your petition. You must fill in every blank on the form with the information requested. If you need assistance with the form, the clerk of the circuit court will help you complete it. 3. You must file the notice of appeal with the clerk of the circuit court where your case was heard. The notice of appeal must be filed within thirty (30) days of the date when the judge’s written order dismissing your petition was filed with the clerk of the circuit court. If you do not file your notice of appeal within this time period your appeal will not be heard. 4. The notice of appeal is the only document you need to file in connection with your appeal. You may file a motion to seek permission to file a brief in your case, or to request oral argument of your case. These motions or any other motions or documents you file concerning your appeal, except the notice of appeal, must be mailed or delivered to the appellate court for filing. The appellate court that will be reviewing your case is: The ___________ District Court of Appeal __________________________________ __________________________________ (address of the District Court) Telephone number: ___________________ (Note: The clerk of the circuit court will fill in the blanks above with the appropriate court information). 5. You may request a lawyer to represent you in your appeal. You must tell the judge who heard your petition for a judicial waiver of parental notification of termination of pregnancy that you wish to have a lawyer appointed. (g) Directions to Clerk. IN THE .....(NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED)..... Case No. ____________ ___________________, ) Plaintiff/Appellant, ) ) v. ) ) ___________________, ) Defendant/Appellee. ) ___________________ )
DIRECTIONS TO CLERK
Plaintiff/Appellant, ____________________, directs the clerk to .....(include/exclude)..... the following items .....(in/from)..... the original record described in rule 9.200(a)(1):
ITEM 1. [List of Desired Items] 2.
Note: This form is necessary only if a party does not wish to rely on the record that will be automatically prepared by the clerk under rule 9.200(a)(1). (h) Designation to Reporter. IN THE .....(NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED)..... Case No. ____________ ___________________, ) Plaintiff/Appellant, ) ) v. ) DESIGNATION ) TO REPORTER ) AND REPORTER’S ___________________, ) ACKNOWLEDGMENT Defendant/Appellee. ) ___________________ ) I. DESIGNATION Plaintiff/Appellant, ____________________, files this Designation to Reporter and directs .....(name of court reporter)..... to transcribe an original and _____ copies of the following portions of the trial proceedings to be used in this appeal: 1. The entire trial proceedings recorded by the reporter on .....(date)....., before the Honorable .....(judge)....., except . 2. [Indicate all other portions of reported proceedings.] 3. The court reporter is directed to file the original with the clerk of the lower tribunal and to serve one copy on each of the following: 1. 2. 3. I, counsel for Appellant, certify that satisfactory financial arrangements have been made with the court reporter for preparation of the transcript.
Attorney for .....(name of party)..... .....(address and phone number)..... Florida Bar No. .................... II. REPORTER’S ACKNOWLEDGMENT 1. The foregoing designation was served on .....(date)....., and received on .....(date)...... 2. Satisfactory arrangements have ( ) have not ( ) been made for payment of the transcript cost. These financial arrangements were completed on .....(date)...... 3. Number of trial or hearing days ____. 4. Estimated number of transcript pages ____. 5a. The transcript will be available within 30 days of service of the foregoing designation and will be filed on or before .....(date)...... OR 5b. For the following reason(s) the court reporter requests an extension of time of _____ days for preparation of the transcript that will be filed on or before .....(date)...... 6. Completion and filing of this acknowledgment by the court reporter constitutes submission to the jurisdiction of the court for all purposes in connection with these appellate proceedings. 7. The undersigned court reporter certifies that the foregoing is true and correct and that a copy has been furnished by mail ( ) hand delivery ( ) on .....(date)....., to each of the parties or their counsel.
Court Reporter .....(address).....
Note: The foregoing court reporter’s acknowledgment to be placed “at the foot of” or attached to a copy of the designation, shall be properly completed, signed by the court reporter, and filed with the clerk of the appellate court within 5 days of service of the designation on the court reporter. A copy shall be served on all parties or their counsel, who shall have 5 days to object to any requested extension of time. See Fla. R. App. P. 9.200(b)(1), (2), & (3).
(i) Civil Supersedeas Bond. .....(Title of Court)..... Case No. ____________ ___________________, ) Plaintiff, ) ) v. ) CIVIL SUPERSEDEAS ) BOND ___________________, ) Defendant. ) ___________________ )
We, ____________________ as Principal, and ____________________ as Surety, are held and firmly bound unto ____________________ in the principal sum of $_____, for the payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally. The condition of this obligation is: the above-named Principal has entered an appeal to the .....(court)..... to review the .....(judgment or order)..... entered in the above case on .....(date)....., and filed in the records of said court in book _____ at page_____. NOW THEREFORE, if the Principal shall satisfy any money judgment contained in the judgment in full, including, if allowed by law, costs, interest, and attorneys’ fees, and damages for delay in the event said appeal is dismissed or said judgment is affirmed, then this obligation shall be null and void; otherwise to remain in full force and effect. Signed on .....(date)....., at .....(place)...... /s/ Principal Signed on .....(date)....., at .....(place)...... /s/ Surety (j) Prisoner’s Motion and Affidavit to Proceed Without Prepayment of Court Costs and Fees. IN THE (name of court) ____________________ Case No. _________ __________________, ) PRISONER’S Appellant(s)/ ) MOTION AND Plaintiff(s)/Petitioner(s), ) AFFIDAVIT ) TO PROCEED v. ) WITHOUT __________________, ) PREPAYMENT Appellee(s)/ ) OF COURT COSTS Defendant(s)/ ) AND FEES Respondent(s). ) I, ____________, am a plaintiff/petitioner/ appellant in the above-styled action. I have been convicted of a crime and am currently incarcerated for that crime, or I am being held in custody pending extradition or sentencing. Pursuant to § 57.085, Fla. Stat., I hereby apply for leave to proceed in this action without prepayment of court costs and fees. I acknowledge that the custodian or the custodian’s designee for my inmate trust account may withdraw funds from my account and transmit these funds to the clerk of the court, as directed by order of the court. These funds will be applied to any court costs or fees that the court requires me to pay in connection with this case. This acknowledgment applies to any institution in which I am or will be confined. I am unable to pay court costs and fees. Under penalty of perjury, I swear or affirm that all statements in this
affidavit are true and complete. 1.State your inmate number and the place and address of the institution where you are in prison or in custody. . 2. Are you presently employed? Yes ( ) No ( ) a. If yes, state your occupation, the amount of your monthly salary or wages, and your employer’s address. b. If no, state the time period of your last employment, your occupation, and the amount of monthly salary or wages received. 3. Have you received within the past twelve months any money from any of the following sources? a. Business, profession, or self-employment? Yes ( ) No ( ) b. Rent, payments, interest, or dividends? Yes ( ) No ( ) c. Pensions, annuities, or life insurance? Yes ( ) No ( ) d. Gifts or inheritances? Yes ( ) No ( ) e. Any other source? Yes ( ) No ( ) If you answered yes to any of the above, describe each source and state amount received from each. . 4. Do you own any cash, or do you have money in a checking, savings, or money market account? (Include funds in prison account.) Yes ( ) No ( ) If yes, state the amount of cash owned and the current balance(s) in each checking, savings, or money market account. . 5. Do you own any real estate, stocks, bonds, notes, automobiles, or other tangible or intangible thing of value worth more than $100? Yes ( ) No ( ) If yes, describe each item of property and state its approximate value. . 6. List the persons who are dependent upon you for support, state their ages and their relationship to you, and indicate how much you contribute toward their support. 7. State the nature and amount of any significant monthly expenses that you must pay, such as mortgage payments or rent. . 8. List all of your significant debts, including the name of each person or entity to whom you owe the debt, the total amount owed, and monthly payment, if any. .
9. During the past three years, have you been permitted two or more times to proceed without prepayment of court costs or fees in Florida or federal courts or adjudicatory forums, or to intervene in actions in these courts or adjudicatory forums without prepayment of court costs or fees, pursuant to Sections 57.081 or 57.085, Florida Statutes, or 28 U.S.C. § 1915? Yes ( ) No ( ) If yes, list below all suits, actions, claims, proceedings, or appeals that you have brought or intervened in during the past five years in any court or adjudicatory forum. Name of Court Disposition Case Number Nature of the Action
If necessary, attach additional pages that reflect the required information. __________________________ Signature of Appellant/Plaintiff/ Petitioner State of Florida County of __________ Sworn to and subscribed before me on .....(date)..... by ......(name)...... __________________________ Notary Public — State of Florida (Print, Type, or Stamp Commissioned Name Of Notary Public) Personally known ____ OR Produced Identification _____ Type of Identification Produced ___________ FINANCIAL CERTIFICATE (To be completed by authorized official of institution where prisoner is confined) The prisoner must attach computer printout(s) reflecting all transactions in the prisoner’s inmate trust account(s) for the preceding six months or for the period of incarceration, whichever is shorter. The prisoner has the responsibility to obtain the required printout(s) from each institution where the prisoner was or is confined and to provide the printout(s) to the official completing this certificate. 1. Name of prisoner _____________ 2. Current available account balance _________ 3. Average highest available ________ monthly balance for the preceding six months or for the period of incarceration, whichever is shorter. 4. Average available monthly _______ deposits for preceding six months or for the period of incarceration, whichever is shorter. If printout(s) or the above calculations do not represent the preceding six month period in its entirety, the official completing this certificate should explain here:
I hereby certify that, as of this date, the above information for the inmate trust account of the prisoner named above is correct. Date: _____ _________________________ Authorized official of institution ORDER REQUIRING FURTHER INFORMATION FOR DETERMINATION OF PRISONER’S INDIGENCY Based on a claim of indigency, Petitioner (Plaintiff) seeks a waiver of the filing fee in this matter of $_____. Petitioner (Plaintiff) appears to be incarcerated for conviction of a crime or pending extradition or sentencing. The documents filed by Petitioner (Plaintiff) are insufficient to determine whether the Petitioner (Plaintiff) is indigent under Section 57.085, Florida Statutes. Petitioner (Plaintiff) must either pay the filing fee stated above or file the following items (as marked) with this tribunal within 45 days of the date of this order: ____ 1. Affidavit of indigency containing Petitioner’s (Plaintiff’s) identity and the financial information required by Section 57.085(2), Florida Statutes. ____ 2. Statement in the affidavit regarding whether the Petitioner (Plaintiff) has been determined to be indigent under Sections 57.081 or 57.085, Florida Statutes, or 28 U.S.C. § 1915 two or more times during the past three years and, if yes, a listing of all suits, actions, claims, proceedings, or appeals brought by the prisoner or intervened in by the prisoner in any court or adjudicatory forum during the past five years. ____ 3. Statement in the affidavit that “I am unable to pay court costs and fees. Under penalty of perjury, I swear or affirm that all statements in this affidavit are true and complete.” ____ 4. Acknowledgment that funds will be withdrawn from the Petitioner’s (Plaintiff’s) inmate trust account. ____ 5. A copy of the Petitioner’s (Plaintiff’s) inmate trust account records for the past 6 months or the length of the Petitioner’s (Plaintiff’s) incarceration, whichever period is shorter. If Petitioner (Plaintiff) has not had an inmate trust account during this time period, the Petitioner (Plaintiff) must submit signed documentation from prison or jail officials for each institution confirming that the Petitioner (Plaintiff) did not have a trust account. ____ 6. A financial certificate, signed by an authorized official of the Petitioner’s (Plaintiff’s) place of confinement, reflecting the current available account balance of the Petitioner’s (Plaintiff’s) inmate trust account and the average highest available monthly balance and average available monthly deposits in the trust account for the past 6 months or the length of the Petitioner’s (Plaintiff’s) incarceration, whichever period is shorter. Completion of the enclosed or attached form will satisfy all of these requirements. Failure either to pay the filing fee in full or to comply with this order within 45 days from the date of this order may result in dismissal of this case. If the Petitioner (Plaintiff) has filed or intervened in more than one action, separate documents must be supplied for each action and the case number must appear on each submission. ORDER ON PRISONER’S INDIGENCY Based on a claim of indigency, Petitioner (Plaintiff) seeks waiver of prepayment of court costs and fees, pursuant to Section 57.085, Florida Statutes. Having reviewed the documents filed by Petitioner (Plaintiff), this tribunal finds that Petitioner (Plaintiff) is a prisoner as defined by Section 57.085(1), Florida Statutes, and orders as follows: I. DETERMINATION OF INDIGENCY (check one) ____ A. NOT INDIGENT. The Petitioner (Plaintiff) is found not indigent because
______________________________. The filing fee of $_____ must be paid in full or this case will be dismissed. (skip Section II) (Note that Fla. R. App. P. 9.430 requires a statement of reasons for denying a request for indigency status.) ____ B. FULL WAIVER. Petitioner (Plaintiff) is indigent and unable to prepay court costs and fees. Petitioner (Plaintiff) is obligated to pay court costs and fees as specified in Section II below. ____ C. PARTIAL WAIVER. Petitioner (Plaintiff) is indigent but able to prepay part of the court costs and fees. Petitioner (Plaintiff) shall make, prior to any further proceedings, an initial partial payment of the greater of either (1) 80% of the current available balance of the Petitioner’s (Plaintiff’s) inmate trust account or (2) the greater of 20% of the average highest available monthly balance or the average available monthly deposits of the Petitioner’s (Plaintiff’s) inmate trust account for the preceding 6 months or the period of incarceration, whichever period is shorter. This tribunal determines this amount to be $_____. Payment must be made within 45 days of the date of this order, or this case may be dismissed. Petitioner (Plaintiff) shall make monthly payments of the remaining court costs and fees as specified in Section II below. II. PAYMENT OF COURT COSTS AND FILING FEES The initial filing fee in this case is $ ______. The Department of Corrections or the local detention facility shall place a lien on the inmate’s trust account for the full amount owed, withdraw money maintained in the trust account, and transmit the money to the clerk of the court until the Petitioner’s (Plaintiff’s) court costs and fees are paid in full. When the balance in the inmate’s account is less than $10, the Department of Corrections or local detention facility shall accumulate the funds and not transmit them to the clerk until the balance exceeds $10. Any dismissal of this case, transfer of the Petitioner (Plaintiff) to a different detention facility, or release of the Petitioner (Plaintiff) from custody shall not extinguish the lien or the Petitioner’s (Plaintiff’s) responsibility to pay the full amount owed.
Committee Notes 1980 Amendment. Forms 9.900(a) and (b) under the 1977 rules are modified, and additional forms are provided. 1992 Amendment. Forms 9.900(a), (c), and (e) were revised to remind the practitioner that conformed copies of the order or orders designated in the notice of appeal should be attached to the notice of appeal as provided in rules 9.110(d), 9.130(c), and 9.160(c).
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA JENNIFER FRANKLIN-PRESCOTT, WALTER PRESCOTT, JOHN DOE, MARY DOE, Counterclaimants, vs. PREVIOUSLY DISPOSED CASE NO.: 09-6016-CA
BANKUNITED [non-successor in interest to bankrupt “BANKUNITED, FSB”], DANIEL R. MONACO (personal & official capacity), CLERK OF COURT (personal & official capacity), ALBERTELLI LAW, Defendants on Counterclaim(s). _____________________________________________________________________________/ COUNTERCLAIM(S) AND DEMAND FOR TRIAL BY JURY DEMAND FOR AFFIRMATIVE RELIEF IN ADDITION TO AFFIRMATIVE DEFENSES DISPOSED WRONGFUL FORECLOSURE ACTION WAS NEVER AT ISSUE 1. Here, the previously disposed action/complaint was never at issue, but the court abused its discretion and set it for non-jury trial and “ordered” the “defendants” to “respond” after the unlawful amended, and then cancelled “02/22/2011 hearing”. MISREPRESENTATION: BENCH TRIAL WOULD VIOLATE DUE PROCESS 2. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be set for non-jury trial. Here, “defendants” were entitled to dismissal and the hearing of their motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the Court violated said Rule.
3. Any order setting this disposed case for “trial” would have to be sent to the counterclaimants by the trial court in order to assure due process. 4. Counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that without having received an order in an envelope mailed by this Court, it created doubt as to the order's authenticity; and/or (3) that the unauthorized “trial” would commence less than 30 days from the receipt of the order. 5. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process. 6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984). 7. Counterclaimants have had a due process entitlement to notice and an opportunity to be heard pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. 8. Here, counterclaimants’ fundamental due process rights are being violated by the defective notice of (non)-jury trial. KNOWN LACK OF JURISDICTION 9. To allow “BankUnited” to sue defendants/counterclaimants in the previously disposed wrongful foreclosure action, the court would have to determine that the destroyed/lost notes and mortgages were valid, genuine, enforceable, and owned by “BankUnited”. 10. Here, Daniel R. Monaco knew and/or concealed that, e.g., the missing instruments were not enforceable and null & void, and that the Court had no jurisdiction. [IMPOSSIBLE] REESTABLISHMENT DEMANDED JURY TRIAL 11. Count I of the complaint demanded trial by jury [reestablishment of an alleged destroyed and/or lost note and mortgage. The time and manner of the loss/destruction were
UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally impossible. COUNTERCLAIM(S) AT COMMON LAW AND DEMAND FOR JURY TRIAL 12. The Counterclaim(s) is in four Counts and consists of COUNT I: A suit for damages for fraud and misrepresentation; COUNT II: An action to quiet title to certain real property; COUNT III: A suit seeking damages for breach of contract; and COUNT IV: An action for damages. Specifically, the counterclaimants and/or counterclaims demand trial by jury on all issues so triable.
13. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
“BankUnited”, Albertelli Law, Daniel R. Monaco, and the Clerk of Court. 14. In this previously disposed case, the complaint sought to reestablish destroyed/lost instruments and foreclose an alleged destroyed/lost mortgage/note on certain real property (25 6TH Street North Naples, FL), which is in the possession of the defendant counterclaimants. 15. While the previously disposed wrongful foreclosure suit appears to be equitable in nature, Count I of the complaint (facially impossible reestablishment after UNKNOWN destruction/loss of alleged instruments) and the counterclaims are based on the exhibits and assertions that the recorded version and other versions of the instruments conflicted with each other and were based on fraud and were, in fact, a forgery. COUNT 1 AGAINST “BANKUNITED”: SUIT FOR DAMAGES FOR FRAUD AND MISREPRESENTATION
16. “BankUnited” deceived the counterclaimants with regard to the true legal ownership and enforceability of the alleged destroyed and/or lost instruments. Here as a matter of law, it was impossible to reestablish the missing alleged instruments, and the counterclaimants were entitled to protection and dismissal of the prima facie frivolous and insufficient complaint. 17. Here, “Walter Prescott” was not the maker of any alleged promissory note dated February 15, 2006, or any other promissory note, as evidenced by the exhibits attached to the complaint. 18. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by the December 2010 Notice of Filing of Original Loan Modification Agreement on file. COURT’S KNOWN LACK OF JURISDICTION 19. The purported “plaintiff”, “BankUnited”, has not alleged facts sufficient to demonstrate that it invoked and/or could have possibly invoked the jurisdiction of this court. Here, plaintiff did not satisfy and could not have possibly satisfied the required conditions precedent as evidenced by the file. Here, the falsely alleged “promissory note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” “BANKUNITED” MADE FALSE CLAIMS TO DEFRAUD THE COUNTERCLAIMANTS 20. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage. 21. “BankUnited” failed its burden to affirmatively establish holder in due course status pursuant to Florida law and Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 103941 (Fla. 3d DCA 1981). 22. Here, “BankUnited” even pleaded inability to establish holder in due course status because of the UNKNOWN loss and/or destruction of the alleged instruments.
23. After the pleaded UNKNOWN destruction and loss of the purported note and mortgage pursuant to paragraph 6 of the complaint, no legal and factual questions were and could possibly have been at issue here: “6. Said promissory note and mortgage have been lost or destroyed and are not in the custody or control of BankUnited, and the time and manner of the loss or destruction is UNKNOWN.” 24. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed. 25. Here, the undisputed evidence was that “BankUnited, FSB” did not have possession of the alleged destroyed/lost instruments, and thus, could not enforce the note under section 673.3091 governing lost/destroyed notes/instruments. Because “BankUnited, FSB” could not enforce the lost instruments under section 673.3091, it had no power of enforcement which it could possibly assign and/or transfer to “BankUnited”. 26. [Were this Court to allow “BankUnited” to enforce the alleged lost instruments, because some unidentified person further back in the chain may have possessed the note, it would render the rule of law and 673.3091 meaningless.] 27. The alleged mortgage copy did not contain a copy of the alleged executed note. 28. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost instruments was entered, and the wrongful action was disposed on 08/12/2010. 29. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida Statutes, and the Uniform Commercial Code. 30. “BankUnited” is not in possession of the purported note and mortgage and not entitled to enforce them. 31. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and HOW. 32. “BankUnited” which is wrongfully seeking to enforce the alleged note and mortgage was not entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the alleged instruments occurred. 33. “BankUnited” did not acquire ownership of the instruments from anyone who was entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the alleged instruments occurred. See § 673.3091, Florida Statutes (2010). 34. On 05/21/2009, “BankUnited, FSB” was seized.
35. Here, there had been seizure and transfer which prohibited re-establishment. 36. “BankUnited” never produced nor re-established any authentic note and/or mortgage as proven by the evidence before this Court. 37. The mortgage that was used to establish the terms of the allegedly lost note and mortgage was controverted and challenged as to authenticity and alteration of its original terms. 38. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham. 39. A person seeking enforcement of an instrument under UCC § 3-309(a)(b) must prove the terms of the instrument and the person’s right to enforce the instrument. 40. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the person’s right to enforce the alleged instruments. 41. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation and/or instrument were vague and ambiguous. 42. Here, Walter Prescott neither executed the purported note nor “loan modification agreement”. FRAUDULENT, NULL, AND VOID “AFFIDAVITS” 43. This Court may not enter judgment in favor of “BankUnited”, because the Court knew that the defendant counterclaimants are not adequately protected against loss and “BankUnited’s” fraud on the Court by means of, e.g., null and void affidavits. a. Controverted by the record evidence, “BankUnited” fraudulently stated under oath that said disposed wrongful action was “uncontested” and allegedly devoid of genuine issues of material fact. See, e.g., “Affidavit of Plaintiff’s Counsel as to attorney’s fees and costs”. b. The “Albertelli Law” foreclosure mill employed unlawful “robo-signers” and “robosigning” schemes. c. Barbie Fernandez fraudulently stated under oath, e.g., that BankUnited is the owner or servicer for the owner of the lost/destroyed and non-reestablished instruments. See “Affidavit as to amounts due and owing”; d. Ashley Simon, Esq., stated under oath, e.g., that she had “not reviewed the actual file in this case”. See “Affidavit as to reasonable attorneys fees”. 44. On the clear evidence presented and before this Court, “plaintiff” “BankUnited” had no standing and no real interest, and this previously disposed wrongful foreclosure action cannot be tried and/or adjudged under the Rules and Florida Statutes.
45. Defendant counterclaimants did not default under the destroyed and/or lost note and mortgage, and no payment was due to “BankUnited”. 46. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost note and mortgage. ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION” 47. Section 673.4071, Alteration, Florida Statutes (2010), states in pertinent part: (1)The term “alteration” means: (a)An unauthorized change in an instrument which change purports to modify in any respect the obligation of a party; or (b)An unauthorized addition of words or numbers or other change to an incomplete instrument which addition or change relates to the obligation of a party. (2)Except as provided in subsection (3), an alteration fraudulently made discharges a party whose obligation is affected by the alteration unless that party assents or is precluded from asserting the alteration. No other alteration discharges a party, and the instrument may be enforced according to its original terms. (3)A payor bank or drawee paying a fraudulently altered instrument or a person taking it for value, in good faith and without notice of the alteration, may enforce rights with respect to the instrument according to its original terms or, in the case of an incomplete instrument altered by unauthorized completion, according to its terms as completed. 48. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L. Ed. 93 (1878), in which the United States Supreme Court said: Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations omitted.) Consistent with the general rule, Florida Courts have defined fraud as the prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat…
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO 49. The counterclaimants are suing retired “robo” Judge Daniel R. Monaco in his private individual and official capacity. Here, Monaco exceeded the scope of any official capacity when he, e.g., overturned Judge Hayes’ previous 08/12/2010 disposition. 50. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations, exhibits, and issues complained of. 51. Retired temporary Judge D. R. Monaco had no authority to, e.g.: a. overturn the 08/12/2010 disposition by [Disposition] Judge Hugh D. Hayes in the absence of the court’s jurisdiction; b. deny dismissal after the previous disposition by Judge Hayes; c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the excused absence of the counterclaimants. JUDICIAL ABUSE OF DISCRETION AND UNCONSTITUTIONAL ORDER 52. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the requirements of the governing Constitutions and Statutes. 53. Accordingly, a jury trial on all issues triable by jury must be granted. 54. Monaco and/or the Court knew that claims in which fraud is an issue should not be resolved by summary judgment. See Barrios v. Duran, 496 So.2d 239 (Fla. 3d DCA 1986). DISPOSED CASE WAS NEVER AT ISSUE -TRIAL WOULD VIOLATE DUE PROCESS 55. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be set for trial. Here, the counterclaimants were entitled to dismissal and the hearing of their motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to
be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the Court violated said Rule. 56. Any order setting this disposed case for “trial” would have to be sent to the defendant counterclaimants by the trial court in order to assure due process. 57. The counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that without having received an order in an envelope mailed by this Court, it created doubt as to the order's authenticity; and/or (3) that the unauthorized “trial” would commence less than 30 days from the receipt of the order. 58. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants of due process. 59. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984). 60. The counterclaimants have had a due process entitlement to notice and an opportunity to be heard pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. 61. Here, counterclaimants’ fundamental due process rights are being violated by the defective notice of (non)-jury trial. “ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE 62. It is well established that fraud and misrepresentation are valid affirmative defenses in a foreclosure action. See Lake Regis Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933) (misrepresentation). Fraud is also a legal action for damages that can be raised as a counterclaim. See Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).
63. Fraud is a compulsory counterclaim to an action in foreclosure on the [here lost/destroyed] note and/or mortgage. See Spring, supra; Yost v. American Nat'l Bank, 570 So.2d 350 (Fla. 1st DCA 1990). Fraud claims are compulsory counterclaims for purposes of Florida Rule of Civil Procedure 1.170. 64. Here without any rational and legal explanation/justification, Monaco/the Court has been speeding from the 08/12/2010 disposition to “trial” to favor the bank at counterclaimant homeowners’ expense. The counterclaimants experienced and fear further prejudice. 65. To grant any judgment of foreclosure in favor of “BankUnited”, the Court/Monaco would have to find, among other things, that said bank owned the lost/destroyed mortgage/note and had performed all conditions precedent to enforce the destroyed/missing mortgage/note. 66. However here, “BankUnited” had asserted the UNKNOWN loss and/or destruction of the purported instruments in its complaint. Furthermore, the evidence on file had conclusively proven non-performance of said conditions. See generally 37 Fla. Jur. 2d Mortgages and Deeds of Trust § 287 (2002). 67. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action were to proceed to judgment in favor of “BankUnited”, then a jury would be bound by these findings of fact, which facts are inextricably interwoven with the issues presented by the defendant counterclaimants’ affirmative defenses and counterclaims. Thus, to allow the foreclosure action to proceed before the petitioners' legal counterclaims would deny them their fundamental right to a jury trial, which they have demanded, on those issues. TEMPORARY “ROBO JUDGE MONACO IS BIASED IN FAVOR OF BANK(S) 68. Here, retired “robo” Judge Monaco knew and/or concealed that a plaintiff must be the owner/holder of the instrument(s) as of the date of filing suit pursuant to Jeff-Ray Corp. v.
Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004). 69. Here as of “07/09/2009”, the date of filing suit, “BankUnited” was not any holder and/or owner of nor entitled to enforce the destroyed and/or missing instruments. 70. “BankUnited” was not a holder of the lost/destroyed note at the time it wrongfully filed suit (07/09/2009) or any time thereafter, was not entitled to enforce and/or reestablish the alleged lost instruments, and no exception to this requirement was ever asserted. See Am. Bank of the S. v. Rothenberg, 598 So. 2d 289, 291 (Fla. 5th DCA 1992) (finding that it is elementary that to be a holder, one must be in possession of the instrument). 71. Here, “BankUnited” had neither standing nor any real interest and could not have possibly enforced the lost and/or destroyed instruments. 72. Here, retired Judge Monaco and “BankUnited” had actual knowledge of the fraud and lack of good faith prior to the falsely alleged transfer from “BankUnited, FSB” to “BankUnited”, which precluded “BankUnited” from claiming holder in due course status.
73. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the
authenticity of the purported note amd that “defendant” Walter Prescott had not executed the alleged note pursuant to the evidence on file.
74. Here no mortgage could possibly secure a non-existing obligation.
COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT 75. The counterclaimants are suing the Clerk of Court in his private individual and official capacity. Here, said Clerk exceeded the scope of any official capacity. LACK OF AUTHORITY TO REMOVE 08/12/2010 JUDICIAL DISPOSITION
76. The “02/21/2011 memorandum from clerk to file regarding correction of the disposition record to reflect the case as pending” was unauthorized and lacked any legal justification.
77. Here, the wrongful foreclosure action had been disposed by “Disposition Judge” H. D. Hayes (disposition was reached by said Judge in a case that was not dismissed and in which no trial has been held; Category (J). The Clerk and Daniel R. Monaco had no authority to remove/overturn the 08/12/2010 judicial disposition record without any legal justification. 78. The Clerk had no judicial authority and was not to practice law at counterclaimants’ expense. COUNT I: SUIT FOR DAMAGES FOR FRAUD AGAINST ALBERTELLI LAW FRAUD ON THE COURT ON THE RECORD 79. After the 08/12/2010 disposition, Albertelli Law and/or “BankUnited” “filed” the “original note” which did not identify “BankUnited” as the holder or lender. 80. Albertelli Law and “BankUnited” also did not attach an assignment or any other evidence to establish that it had purchased and/or acquired the alleged lost note and mortgage. 81. Here, Albertelli Law concealed that the required chain of title was not in evidence. 82. Furthermore, “BankUnited” did not file any genuine supporting affidavits or deposition testimony to establish that it owns and holds the alleged lost/destroyed note and mortgage but re-filed non-authentic copies of the lost/destroyed instrument(s). 83. Accordingly, the documents before this court and retired “robo” Judge Monaco at the 22/02/2011 unauthorized and cancelled hearing did not establish “BankUnited’s” standing to foreclose the destroyed/lost note and mortgage, Thus, at this point, “BankUnited” was not entitled to any “trial” and any “judgment” in its favor.
RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION 84. Defendants did not execute and deliver an authentic promissory note and mortgage to “BankUnited”. 85. Under Florida law delivery is necessary to validate a negotiable instrument. 86. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”. 87. Here there was no delivery of any written assignment of any instrument to “BankUnited”. “BANKUNITED” FAILED TO STATE A CAUSE OF ACTION & HAD NO STANDING 88. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder of bankrupt and seized “BankUnited, FSB”, had alleged unknown loss and/or destruction of a purported note and/or mortgage. 89. Here because Alfred Camner was the bankrupt bank’s founder, it was as if “BankUnited, FSB” had asserted the loss/destruction of the alleged instruments. 90. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz Law Firm were fired. CONCEALMENT OF LOST AND/OR DESTROYED F.D.I.C. RECORDS 91. Here, Albertelli Law knew that a federal depository institution regulatory agency [F.D.I.C.] was confronted with a purported lost agreement and/or instruments not documented in the institution's records. 92. No agreement/instruments between a borrower and a bank, which does not plainly appear on the face of an obligation or in the bank's official records is enforceable against the Federal Deposit Insurance Corporation. 93. It makes no difference whether the issue is presented in the form of a claim or of a defense; as long as the claim or defense is based upon an alleged agreement the terms of which are
not contained within the four corners of the written obligation or found in the official records of the financial institution, the claim or defense is barred. See, e.g., Langley v. FDIC, 484 U.S. 86, 91-92, 108 S. Ct. 396, 401, 98 L. Ed. 2d 340, 347 (1987). 94. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U.S.C. § 1823(e). 95. Here, the Court was obligated to determine and/or consider the lack of subject matter jurisdiction as invoked by federal law. RECORD FRAUD UPON THE COURT 96. "'Fraud upon the court' is a special kind of fraud, more serious in scope and implication than fraud sufficient for relief under Federal Rule of Civil Procedure 60(b)(3) [Florida Rule of Civil Procedure 1.540(b)(3)] or as a ground for an 'independent action." See 7 J. Moore & J. Lucas, Moore's Federal PracticeP60.31-33 (2d ed. 1983); P60.33 at 515. See also Dankese Engineering, Inc. v. Ionics, Inc., 89 F.R.D. 154 (D.Mass. 1981). 97. Thus, where an action is grounded on "fraud upon the court," traditional principles of equity, the failure of the seeker of equity to do equity, etc., see, e.g., Kearley v. Hunter, 154 Fla. 81, 16 So.2d 728 (1944), which might disentitle one to relief, are not applied. As Professor Moore notes: "The court must also distinguish between relief for 'fraud upon the court,' for which there is no time limit, from relief by motion, for which there is a one-year limitation, and from relief by independent action, which is limited only by laches." Moore's, supra, P6. RECORD OBJECTIONS TO UNCONSTITUTIONAL NON-JURY/BENCH TRIAL 98. The defendant counterclaimants objected to a non-jury trial, pointing out that they have been demanded a jury trial, and again ask that the case be set for resolution before a jury.
99. The court failed to communicate and notice the counterclaimants. 100. Section 22 of the Declaration of Rights contained within the Florida Constitution begins
by declaring that "The right of trial by jury shall be secure to all and remain inviolate." See also Amend. VII, U.S. Const. Rule 1.430, Florida Rules of Civil Procedure also provides that "The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate." 101. In the present case, Count I was at law for reestablishment of an alleged destroyed
and/or lost note and mortgage. The time and manner of the loss/destruction were UNKNOWN. 102. The counterclaims are unquestionably suits at law seeking damages, the traditional
realm of the civil jury trial. 103. Thus, the issue with which this Court and its “rocket docket” must come to grips, then,
is how to secure inviolate counterclaimants’ rights of jury trial. 104. The claims at law are intermixed with the previously disposed wrongful foreclosure
action. 105. In the record absence of any [reestablished] instruments, “BankUnited” had failed to
state a cause of action, had no standing, and could not foreclose and sue. 106. Florida’s appellate courts had previously addressed intermixed causes: Spring v. Ronel
Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA 1982); Adams v. Citizens Bank of Brevard, 248 So. 2d 682, 684 (Fla. 4th DCA 1971). The Spring court cited to Adams, in which the District Court held that: [I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue non-jury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not
conclude the case. But where the compulsory counterclaim entitles the counterclaimant to a jury trial on issues which are sufficiently similar or related to the issues made by the equitable claim that a determination by the first fact finder would necessarily bind the latter one, such issues may not be tried non-jury by the court since to do so would deprive the counter-claimant of his constitutional right to trial by jury. Here on 08/12/2010, the wrongful foreclosure action had been disposed. Here, Count I of the complaint and the counterclaims were at law, and counterclaimants have been demanding jury trial. COUNT II – SUIT TO QUIET TTILE TO CERTAIN REAL PROPERTY 107. The second Count of the counterclaim(s) seeks to quiet title to said real property that is
the subject of the destroyed/lost and non-reestablished instruments referenced in the facially frivolous and insufficient complaint. DEMAND OF JURY TRIAL - QUIET TITLE / EJECTMENT ACTION(S) 108. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
65.061(1), Florida Statutes (2010), provides in pertinent part that: …if any defendant is in actual possession of any part of the land, a trial by jury may be demanded by any party, whereupon the court shall order an issue in ejectment as to such lands to be made and tried by a jury… Thus, in Westview Community Cemetery of Pompano Beach v. Lewis, 293 So. 2d 373 (Fla. 4th DCA 1974), the court held that because a defendant on the counterclaim was a defendant in actual possession of the land in question, either party was entitled to a jury trial on the issues presented. 109. Counts 1 and 3 of the counterclaim are actions for damages for fraud and breach of
contract, both of which are common law actions for damages. Because here the causes of action were intimately intertwined with the previously disposed equitable foreclosure claim contained in the complaint, there was no question that the counterclaimants were entitled to
a jury trial on the issues raised by these counts in advance of any non-jury trial on the previously disposed equitable matters. COUNT III- SUIT FOR DAMAGES FOR BREACH OF CONTRACT 110. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
actions of filing untrue affidavits and failure to account. 111. “BankUnited” materially breached its duty of good faith and fair dealing, which
resulted in proximate damages. FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT 112. As witnessed and/or notarized, the alleged destroyed/lost “loan modification
agreement” was not signed and executed by “defendant” Walter Prescott and therefore unenforceable (not legally binding). 113. Even though said “modification agreement” was not legally binding, “BankUnited”
wrongfully sought to enforce the null & void “agreement”: “The interest rate required by this section 1 (7.625%) is the rate I will pay both before and after any default described in the note.” Here, the October 2010 “Affidavit as to amounts due and owing” fraudulently stated a “7.625% interest rate”. 114. The “modified” mortgage was never recorded, and there was no evidence of taxes paid,
which rendered the alleged lost mortgage unenforceable. BANK KNEW OF RECORD ABSENCE OF CONTRACTUAL OBLIGATION 115. Even if the parties had entered into a new contract, it could not have been legally
substituted for the old contract unless there had been a novation. Here, there were no contract and no novation. "A novation is a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation." See Jakobi v. Kings 17
Creek Vill. Townhouse Ass'n, 665 So. 2d 325, 327 (Fla. 3d DCA 1995) (citing Ades v. Bank of Montreal, 542 So. 2d 1013 (Fla. 3d DCA 1989)). “BankUnited” did not prove the substitution of the alleged new contract for the old and did not show the four required elements of: (1) the existence of a previously valid contract; (2) the agreement of the parties to cancel the first contract; (3) the agreement of the parties that the second contract replace the first; and (4) the validity of the second contract. Id. Here, the intention of “BankUnited” did not support novation, and the alleged lien was lost, destroyed, and/or invalid, and the previously disposed foreclosure action wrongful. DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS DEFENDANTS’ COUNTERCLAIM & DEMAND FOR JURY TRIAL 116. Defendants’ affirmative defenses defeated the disposed action by a denial and/or
avoidance. “Defendants” admitted the UNKNOWN loss and/or destruction of the alleged instruments, which could not be reestablished as a matter of law. See Schupler v.Eastern Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). 117. In addition, defendants filed a counterclaim and/or cause of action that seeks
affirmative relief. The counterclaim and affirmative defenses were separate and distinct 118. Here, “plaintiff” “BankUnited” had failed to state a cause of action, and the court could events. not grant [summary] judgment because the defendants have asserted legally sufficient affirmative defenses that have not been rebutted. See Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983). 119. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative
Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and
breach of contract, were both common law actions for damages. 121. Thus, this court erred by ignoring defendants’ affirmative defenses and denying
defendants’ motion to dismiss during an illegal “02/22/2011 hearing” which had been cancelled. DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL 122. Here, the compulsory counterclaim entitled the defendant counter-claimants to
a jury trial on issues which are sufficiently similar or related to the issues made by the previously disposed foreclosure claim that a determination by the first fact finder would necessarily bind the latter one. Therefore, the issues may not be tried non-jury by the court since to do so would deprive the defendant counter-claimants of their constitutional rights to trial by jury. 123. Here, the issues and/or affirmative claims involved in the compulsory counterclaim
and/or fraud claim were sufficiently similar to the issues in the foreclosure action stated in the complaint to require a jury trial of the claim at law before the equitable claims could possibly be reached. Only after a jury verdict on the common law issues could the trial court dispose of the equitable issues that were remaining. 124. Here, the rule is that even where a complaint lies solely in equity, the filing of a
compulsory counterclaim seeking remedies at law entitles the counterclaimant(s) to a jury trial of the legal issues. See Widera v. Fla. Power Corp., 373 So. 2d 714 (Fla. 2d DCA 1979); Sarasota-Manatee Airport Auth. v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970).
“Defendants” were entitled to a jury trial on issues raised in their compulsory
counterclaim that are common to the previously disposed foreclosure claim. See Hightower v. Bigoney, 156 So.2d 501 (Fla. 1963); Spring, supra. 126. This court cannot determine the factual issues of fraud and misrepresentation without
evidence and without a fact-finding jury. 127. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
misrepresentation. Any other way would be error. 128. Here after the capricious removal of the 08/12/2010 disposition record, the prejudice
is especially predictable and the legal issues must be tried by jury. The defendants demanded recusal for fear of further bias. APPEAL AFTER PREJUDICIAL AND UNLAWFUL “02/22/2011 HEARING” 129. The defendants in this disposed wrongful mortgage foreclosure action appealed the
order(s) entered at the illegal and cancelled “02/22/2011 hearing”. 130. In this disposed action, and in the absence of any re-opening, this court improperly
handled disputed factual issues raised in the affirmative defenses and compulsory counterclaim when it set a “trial” during said unlawful “hearing”. RECORD PREJUDICE AND ERROR 131. Here, it would be error to proceed with the previously disposed wrongful foreclosure
action before jury trial on the interrelated legal counterclaim(s). 132. This court did not have the discretion to deny the demanded jury trial on these factual
issues and Motion(s) to Dismiss after the 08/12/2010 disposition. DEFENDANT COUNTERCLAIMANTS DEMANDED JURY TRIAL 133. Defendant counterclaimants had demanded trial by jury.
Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint
(reestablishment of lost instruments). 135. 136. Here, defendants have a fundamental right to jury trial in Florida’s State Courts. The Florida Constitution expressly provides for the right to trial by jury. Article I,
Section 22, of the Florida Constitution provides: § 22. Trial by Jury The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law. 137. Art. I, § 22, Fla. Const. Similarly, the Seventh Amendment of the United States Constitution provides: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Amend VII, U.S. Const. 138. Florida courts have consistently highlighted the importance of the right to a trial by
jury. 139. "Questions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida Constitutions." Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla. 1975); see also Hansard Constr. Corp. v. Rite Aid of Fla., Inc., 783 So. 2d 307, 308 (Fla. 4th DCA 2000) ("Questions regarding the right to a jury trial should be resolved in favor of a jury trial…") (citing King Mountain Condo Ass'n v. Gundlach, 425 So. 2d 569 (Fla. 4th DCA 1982)). MEMORANDUM OF LAW IN SUPPORT OF JURY TRIAL – “REESTABLISHMENT” 140. When a plaintiff brings a count “in law and in equity” to re-establish a note and/or for
deficiency judgment against the defendants, defendants have a right to a jury trial.
A complaint to re-establish a lost note and to have a personal decree against the
defendant(s) for the amount of debt to be evidenced by the re-established note is without equity, because the lost instruments may be established by secondary evidence at law, and defendants are entitled to a jury trial upon the alleged lost instruments. See Staiger v. Greb, App. 3 Dist., 97 So.2d 494 (1957). 142. Because here, there is no dispute that plaintiff seeks to re-establish lost instruments and
to have a “deficiency judgment” against the defendants, the defendants are emtitled to demand a jury trial. ANSWER TO COMPLAINT BY BANKRUPT BANK’S FOUNDER ALFRED CAMNER 143. Hereby, “defendants” “respond” to the unlawful and unauthorized “02/22/2011
hearing” before retired “rocket docket” Judge Daniel R. Monaco who is in the pocket of the bank(s). 144. On 08/12/2010, and after defendants’ Motions to Dismiss had been filed, this wrongful
action to foreclose a mortgage on real property had been disposed. 145. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
mortgage as a matter of law. 146. 147. After said 2010 disposition, the action was never reopened. The exhibits to “BankUnited's” complaint conflicted with its [false] allegations
concerning standing, and said exhibits did not show that “BankUnited” has standing to foreclose the alleged lost/destroyed mortgage/note or was entitled to the illegal 02/22/2011 hearing and any “trial”. 148. Here, the plain meaning of the exhibits controlled, evidenced lack of standing, and was
the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.
2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971). 149. The “trial” wrongfully “set” by temporary Judge Monaco and “BankUnited’s” motion
for summary judgment and were to be denied based on principles of collateral estoppel and res judicata. Here on 08/12/2010, the Court had disposed of “BankUnited’s” wrongful foreclosure action. 150. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
defendants’ Motion to Dismiss. DENIALS AND AFFIRMATIVE DEFENSES 151. Defendant counterclaimants JENNIFER FRANKLIN-PRESCOTT, WALTER
PRESCOTT, JOHN DOE, and MARY DOE, file their “response(s)”, affirmative defenses and claim for attorney’s fees and in support thereof state: 152. 153. Paragraph 1 of purported “plaintiff’s” complaint is denied. Paragraph 2 is denied. Here under paragraph 6, “said [alleged] promissory note and
mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” Furthermore, said alleged note and/or mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and right to “foreclose“ and sue the defendants. 154. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
existed. 155. Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or
reestablishment of any note based on the admissible evidence on file.
156. 157. 158.
Paragraph 4 is denied. Paragraph 5 is denied. Paragraph 6 is admitted and “said [purported] promissory note and mortgage have been
lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” Furthermore, said alleged note and/or mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and right to “foreclose“ and sue the defendants. 159. 160. 161. Paragraph 7 is denied. Paragraph 8 is denied. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”. 162. Paragraph 10 is denied. Here, “BankUnited” could not enforce and/or reestablish any note,
and pursuant to paragraph 6, the alleged “promissory note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” 163. 164. 165. 166. 167. Paragraph 11 is denied. Paragraph 12 is denied. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”. Paragraph 14 is denied. None of the defendants owe(s) any fees to “BankUnited” in the
record absence of any note in evidence. Here, “BankUnited” owes fees to the defendants.
Here, there had been a disposed wrongful foreclosure action, which was facially frivolous and insufficient. 168. Paragraph 15 is denied. Here, pursuant to paragraph 6 (Count I), the alleged “promissory
note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” 169. Paragraph 16 is denied. Here under Paragraph 6, “said [purported] promissory note and
mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” Furthermore, said alleged note and/or mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and right to “foreclose“ and sue the defendants. DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS 170. 171. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens
was automatically dissolved upon the disposition of foreclosure on 08/12/2010. 172. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010. 173. Here, the instruments were missing and the lis pendens was unjustified under Florida
Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). 174. Here, the null and void lis pendens placed a non-existent cloud on the title. See Andre
Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).
In this disposed action, the purported “plaintiff” frivolously sought to re-establish the
missing note in “COUNT I (Reestablishment of Lost Instruments)” of the complaint, which was impossible as a matter of law. 176. Franklin-Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s
lack of standing, which was one of the ultimate affirmative defenses. 177. The record evidence established that plaintiff could not possibly re-establish the note and
that no authentic instruments could possibly be proven under the Evidence Code. 178. 179. Paragraphs 17, 18, and 19 are denied. Purported plaintiff “BankUnited” is not any note owner/holder, had no standing, and could
not possibly declared any amounts due under a lost, destroyed, and/or non-reestablished note. 180. Here, the record did not conclusively establish that “BankUnited” is a holder in due
course of any negotiable instrument. “BankUnited” did not raise any law and/or doctrine under which “BankUnited” did and/or could have possibly become a note owner and/or holder in due course. 181. 182. 183. 184. 185. Paragraph 20 is denied. Paragraph 21 is denied. Paragraph 22 is denied as the sentence is incomplete. Paragraph 23 is denied in the record absence of any enforceable instruments. The purported lost mortgage lien was unenforceable due to the deprivation of the
original instrument(s). Here, “BankUnited” was unable to enforce any mortgage lien, because it never properly obtained the lost/destroyed instruments. 186. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
Esq., complained of an UNKNOWN loss/destruction of the purported instruments. 188. As founder of defunct “BankUnited, FSB”, Alfred Camner knew and concealed that the
alleged lost/destroyed instruments could not have possibly been transferred to “BankUnited”. 189. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint. 190. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments. 191. 192. Here, the record had conclusively evidenced the lack of any chain of title. “BankUnited” was not any real party in interest, did not hold legal title to the
destroyed/missing mortgage and note, and was not the proper party to file suit to foreclose the alleged mortgage. 193. Here, there was no effective assignment from “BankUnited, FSB” to “BankUnited” or any
legal justification why and how “BankUnited” could possibly be entitled to enforce the lost instruments. 194. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
673.3091, Florida Statutes. 195. Here, retired Monaco and the Court knew that “BankUnited” failed to meet, and could not
possibly have met, the Uniform Commercial Code provisions pertaining to lost and/or destroyed notes and enforceability of lost/destroyed notes. Therefore, no foreclosure could possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010).
The endorsement in blank was unsigned and unauthenticated, creating a genuine issue
of material fact as to whether “BankUnited” was the lawful owner and holder of the note and/or mortgage. As in BAC Funding Consortium, Inc. ISAOA/ATIMA v. JeanJacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there were no supporting affidavits or deposition testimony in the record to establish that “BankUnited” validly owns and holds the falsely alleged note and mortgage, no evidence of an assignment to “BankUnited”, no proof of purchase of the alleged debt nor any other evidence of an effective transfer. Therefore, the defendants were entitled to dismissal. Here, no exceptions were invoked. 197. This Court knew of binding precedent and that the Second District had confronted a
similar situation in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had granted the alleged assignee U.S. Bank's motion for summary judgment. [That court reversed because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible evidence establishing U.S. Bank's standing to foreclose the note and mortgage." Id. at 939. Said Appellate Court in BAC Funding Consortium, properly noted that U.S. Bank was "required to prove that it validly held the note and mortgage it sought to foreclose." Id.] 198. This Court knew that “BankUnited” cannot foreclose on the note and mortgage, because
“plaintiff” is not in possession of the original note and did not reestablish the alleged lost/destroyed instruments. See § 673.3091(1), Fla. Stat.; Dasma Invest., LLC v. Realty Associates Fund III, L.P. 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006). 199. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
This Court knew that defendants had demanded indemnification of defendants for
[wrongful] prosecution on the purported destroyed and/or lost instruments. 201. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
Co., 131 So. 126, 135 (Fla. 1930). 202. However in this disposed action, the bond was simply mandatory pursuant to Porter
Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the posting of a bond."). See Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d DCA 1988); Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).
The notorious 20th Judicial Circuit has heard up to 1,000 foreclosure cases per day.
Assuming an 8-hour day, this equated to less than 30 seconds per case, which established organized bias against defendants and homeowners. 204. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor of banks and lenders.
Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”
after the 08/12/2010 disposition:
Section 831.01, Fla. Stat., provides: “Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” NOTICE OF DEFENDANTS’ CHANGE OF ADDRESS
Hereby, defendants file their Notice of change of address: Jennifer Franklin-Prescott, et al., defendants Care/of Papanui PostShop 7 Main North Road, Papanui, Christchurch, 8053 New Zealand
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY 208. Jennifer Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in
the Pacific. A national emergency was declared after the devastating NZ earthquake.
Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable. Hereby, Franklin-Prescott gives again notice of her unavailability. AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE 209. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove
entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument WHEN loss of possession occurred. Further, he/she must prove the loss of possession was not the result of a transfer by the person or a lawful seizure; and the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. 673.3091 Fla. Stat. (2010). 210. Here, “defendants” had denied that “BankUnited” has ever had possession of the alleged
note and/or mortgage and/or that “plaintiff” was ever entitled to enforce the instruments the loss and destruction of which were UNKNOWN. “Plaintiff” could not establish foundation to show possession of the note WHEN the loss of possession occurred. Plaintiff could not establish that plaintiff lost possession of the note after it was transferred to the “plaintiff” and that it could not reasonably obtain possession thereof. Absent such proof in this disposed action, plaintiff had been required by Florida law to provide the original note and mortgage. Having failed to provide the original note and mortgage at the time of filing, “plaintiff” could not sue and/or maintain this disposed action.
Here, the “plaintiff” could not prove the terms of the instrument and the plaintiff bank’s
right to enforce the alleged instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, defendants
specifically have been denying all necessary terms of the note are provided in the attached mortgage/note. Clearly, since the note has been missing, necessary endorsements on the note are missing; as such, essential terms and conditions precedent were not provided by the plaintiff who failed to state a cause of action. UNCLEAN HANDS DEFENSE 212. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had
failed to follow Florida law of negotiable instruments and including, e.g., obtaining necessary signatures, acknowledgments, recordations, assignments, and/or endorsements on the purported non-authentic promissory note and mortgage deceptively submitted to this Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands. RECUSAL/DISQUALIFICATION OF THE “TRIAL” JUDGE 213. Defendants’ motion to recuse retired Judge D. R. Monaco was legally sufficient,
because the facts alleged demonstrate that the moving party has a well-grounded fear that defendants will not receive a fair trial at the hands of said judge. Cave v. State, 660 So. 2d 705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS 214. After said unlawful “02/22/2011 hearing”, Prescott fears that Monaco may further
extend his prima facie bias and again deprive her of due process and fundamental rights to defend against “BankUnited’s” fraud on the court. 215. Because here no reasonable person, juror or judge could possibly explain the record
errors, contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot possibly trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings. WHEREFORE counterclaimants respectfully demand 1. An Order for compensatory and punitive damages in favor of counterclaimant fraud victims; 2. An Order for compensatory and punitive damages for breach of contract in favor of counterclaimants; 3. An Order for judgment against “BankUnited” for counterclaimants’ damages and for an award of attorney’s fees and for all other relief to which counterclaimants prove entitled; 4. An Order dismissing the previously disposed wrongful foreclosure action because “BankUnited” had no standing and failed to state a cause of action; 5. An Order canceling any non-jury and/or bench trial; 6. An Order declaring rogue “robo” Judge Monaco’s lack of jurisdiction to overturn and/or remove the 08/12/2010 disposition record after Franklin-Prescott’s 02/18/2011 Notice of Appeal; 7. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can attend without the illegal interference by rogue retired Judge Monaco; 8. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
9. An Order declaring the “trial set” during said unlawful and cancelled “02/22/10 hearing” in the excused absence of Franklin-Prescott unlawful for lack of due process and because “BankUnited” had never been entitled to any action and trial for lack of standing and note in this disposed case; 10. An Order declaring the “correction of the disposition record” unlawful and prejudicial at Franklin-Prescott’s expense;
11. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations of Franklin-Prescott’s fundamental Federal and Florida Constitutional rights to own her property without judicial fraud and fraud on the court; 12. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the record 08/12/2010 disposition; 13. An Order determining that the invalid lis pendens was not founded upon a duly recorded authentic instrument therefore requiring a bond to prevent further irreparable harm following the 08/12/2010 disposition; 14. An Order declaring the purported “plaintiff” in this disposed action without any authority to sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott; 15. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed action; 16. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits” unlawful in this previously disputed and disposed action; 17. An Order declaring the purported note and/or mortgage unenforceable;
18. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-assignable, and unpaid mortgage (unpaid mortgage taxes); 19. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this disposed and previously controverted action; 20. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial notice of the nullity of the lis pendens and unenforceable mortgage and/or note; 21. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the absence of any authentic “note” and/or mortgage; 22. An Order taking judicial notice of the lack of any genuine “note”, “plaintiff’s” proven fraud on the Court, opposition, opposition evidence, and case law as to this disposed case; 23. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice from appearing in this disposed action. Respectfully, /s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim /s/Walter Prescott, foreclosure fraud victim ATTACHMENTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to “BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court, Hon. Hugh D. Hayes, and retired Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on March 02, 2011. Respectfully, /s/Jennifer Franklin-Prescott, fraud victim /s/Walter Prescott, foreclosure fraud victim 35
CC: Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen (JA), United States District Court, Clerk of Court, The Florida Bar, New York Times, et al. email@example.com, firstname.lastname@example.org, email@example.com, NetNet@cnbc.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, CollierJACS@ca.cjis20.org, email@example.com, lllayden@NAPLESNEWS.COM, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com, Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org,
Fwd: DISPOSED CASE & FRAUDULENT…
To: Naplesnano@aol.com; JRBU@aol.com Subject: Fwd: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO Date: Thu, Mar 3, 2011 3:00 pm
-----Original Message----From: Darlene M. Muszynski <Darlene.Muszynski@collierclerk.com> To: email@example.com Sent: Mon, Feb 21, 2011 7:18 am Subject: RE: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO
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Darlene Muszynski Assistant Director Civil (239) 252-2706 firstname.lastname@example.org
From: email@example.com [mailto:firstname.lastname@example.org] Sent: Monday, February 21, 2011 12:22 AM To: email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; CollierJACS@ca.cjis20.org; firstname.lastname@example.org; email@example.com; Daniel Monaco - Circuit Judge; Hugh Hayes - Circuit Judge; firstname.lastname@example.org; Darlene M. Muszynski; email@example.com; Collierclerk; Sue M. Barbiretti; Jill M. Lennon; Dwight E. Brock; Robert D. St. Cyr; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; BFERNANDEZ@BANKUNITED.COM; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; TAIDMAN@FordHarrison.com; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; Pascolaw@aol.com; firstname.lastname@example.org; email@example.com; Jan Metcalfe - JA Judge Hugh Hayes Subject: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO
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Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX Ne w Se a rch R e turn to C ase List Case Information Printer Friendly Version
Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER Uniform Case Number: 112009C A0060160001XX Clerks Case Number: 0906016C A Court Type: C IR C UIT CIVIL Case Type: MO R TGAGE FO R ECLO SUR ES Judge: HAYES, HUGH D Case Status: DISPO SED Next Court Date: 02/22/2011 Last Docket Date: 02/17/2011 Disposition Judge: HAYES, HUGH D Disposed: 08/12/2010 Reopen Reason: Reopened: Reopen Close: A ppealed: Filed: 07/09/2009
Dockets of 2 page s. Text
Financials Entrie s pe r page :
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E 09/07/2010 NO TIC E O F AUTO MATIC DISSO LUTIO N O F LIS PENDENS 09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E 09/14/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158 09/14/2010 C O PY C O R R ESPO NDENC E TO 2ND DCA W /ATTAC HMENTS 09/15/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158 09/15/2010 C O PY AMENDED NO TIC E O F APPEAL TITLED TO 2ND DC A 09/15/2010 C O RR ESPO NDENCE FR O M APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F APPEAL 2D10-4158 09/16/2010 C O RR ESPO NDENCE FR O M APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F 2ND AMENDED NO TIC E O F APP EAL 09/16/2010 DEMAND FO R FINAL O R DER 10/04/2010 O R DER BY DC A THIS APPEAL DISMISSED BEC AUSE AP PELLANT FAILED TO C O MPLY W ITH THIS C O UR TS O R DER O F 8/31/10 R EQ UIR ING A C O PY O F O RDER APPEALED 10/25/2010 O R DER BY DC A THIS APPEAL IS DISMISSED 11/12/2010 NO TIC E O F HEARING 11/12/2010 NO TIC E O F FILING AFFIDAVIT O F ATTO R NEY FEES 11/12/2010 AFFIDAVIT AS TO ATTO R NEYS FEES 12/02/2010 NO TIC E O F FILING O R IGINAL NO TE & O R IGINAL MO R TGAGE 12/03/2010 MO TIO N TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N MO TIO N FO R JUDIC IAL NO TIC E / BY JENNIFER FR ANKLIN-PR ESC O 12/06/2010 C O RR ESPO NDENCE FR O M C O UNSEL TO C LERK 12/06/2010 MO TIO N TO C ANC EL HEAR ING 12/06/2010 O BJEC TIO N TO & MO TIO N TO C O MPEL & Q UIET TITLE BY JENNIFER FR ANKLIN-PR ESCO T
12/06/2010 NO APPEAR ANC E BY THE PARTIES
12/06/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS 12/07/2010 NO TIC E O F C ANC ELLATIO N 12/06/10 @ 3:00 MO TIO N FO R SUMMARY JUDGMENT 12/08/2010 O BJEC TIO N TO HEAR ING BY JENNIFER FR ANKLIN PR ESC O TT 12/08/2010 O BJEC TIO N TO STATUS O F DISPO SITIO N JUDGE & R EC USAL MO TIO N BY JENNIFER FR ANKLIN PR ESC O TT 12/17/2010 NO TIC E O F FR AUD & LO SS BY JENNIFER FR ANKLIN-PR ESCO TT 12/17/2010 MO TIO N TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N BY JENNIFER FR ANKLIN PR ESC O 12/20/2010 O BJEC TIO N TO (EMER GENC Y) TO PUR PO R TED NO TE IN DISPO SED AC TIO N & UNNO TIC ED & UNAUTHO R IZED HEAR ING IN FR AUD O N C O UR T C ASE BASED O N DEFENDANT ET AL 12/22/2010 NO TIC E O F FILING O R IGINAL LO AN MO DIFIC ATIO N AGR EEMENT 01/04/2011 O BJEC TIO N TO FR AUD O N THE C O UR T BY JENNIFER FR ANKLIN-PR ESC O TT 01/12/2011 NO TIC E O F DR O PPING PAR TY JO HN DO E/JANE DO E 01/12/2011 MO TIO N FO R SUMMAR Y JUDGMENT 01/12/2011 AFFIDAVIT AS TO AMO UNTS DUE 01/12/2011 AFFIDAVIT AS TO ATTO R NEYS FEES 02/01/2011 C O PY (FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E & UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL 02/07/2011 NO TIC E O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/ UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED) 02/08/2011 NO TIC E O F HEARING 02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN 02/08/2011 AMENDED NO TIC E O F HEAR ING 02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T 02/08/2011 AMENDED MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS LIC O UR T 02/09/2011 DEMAND O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE AC C O UNTING IN DISPO SED AC TIO N 02/15/2011 NO TIC E O F O BJEC TIO N TO ANY HEAR ING & MAGISTR ATE IN DISPO SED C ASE AND O F BEING BINDING PR EC EDENT IN SUPPO R T O F 8/12/10 DIPO SITIO N 02/17/2011 AFFIDAVIT & O R DEC LARATO R Y STATEMENT IN DISPO SED AC TIO N AS TO LAC K O F STANDING O F BANKUNITED & ITS FRAUD O N THE C O UR T
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Florida Foreclosure Mill King David Ste…
Monday, February 7, 2011
Florida Foreclosure Mill King David Stern Shows Crime Sure Did Pay
The Associated Press has a juicy story on the rise and fall of Florida’s foreclosure mill kingpin David Stern (hat tip Lisa Epstein). It combines sordid detail with an account of how his business as a business went wildly off the rails. For those new to this blog, the Law Offices of David Stern was the biggest foreclosure mill in Florida, one of the first to be targeted by a state attorney general, and per both reports on the ground as well as revelations from official and media investigations, one of the worst abusers of court procedures and borrower rights. Aside from depicting how utterly out of control Stern was as a businessman, the AP story helps explain how the mortgage business got to be such a horrorshow. Moe Tkacik, a financial writer who has poked around the dark corners of the securitization and muni finance businesses, and I chatted a couple of nights ago about the foreclosure crisis. One of the questions that was nagging at her was who came up with the idea of robosigning? The article suggests that it was the foreclosure mills in response to servicer pressure on fees. And notice the stance of the writer in this extract. Most MSM accounts so far have bent over backwards not to be too critical of banks. By contrast, this article depicts servicers as partners with Stern in what Bill Black would call a criminogenic environment (boldface ours): The rise and fall of Stern, now 50, provides an inside look at how the foreclosure industry worked in the last decade — and how it fell apart. It also shows how banks, together with their law firms, built a quick-and-dirty foreclosure machine that was designed to take as many houses as fast as possible… Florida authorities characterize the foreclosure process at these law firms as a “virtual morass” of “fake documents” and depicted Stern’s operations as something akin to the TV show “Lost” — only instead of people that went missing, it was paperwork. Stern’s employees churned out bogus mortgage assignments, faked signatures, falsified notarizations and foreclosed on people without verifying their identities, the amounts they owed or who owned their loans, according to employee testimony. The attorney general is also looking at whether Stern paid kickbacks to big banks.… The foreclosure business is a volume game. Banks typically pay law firms like Stern’s about $1,400 for each successful foreclosure. But the banks can pay a lot less if the firm doesn’t successfully foreclose within a certain time frame, usually around six months…. Like so many in the industry, Stern had a strategy to cope with all the volume and velocity: robo-signing. One employee testified that Stern’s chief lieutenant, a one-time file clerk named Cheryl Samons who rose to become the firm’s chief operating officer, signed as many as 1,000 foreclosure affidavits a day without reading a single word. The employee said Samons’ hand got so tired that she told three other employees to forge her signature. Samons also signed numerous mortgage assignments with a notary stamp that didn’t even exist at the time of signing. Notary stamps are only valid for four years. The only way Samons could have signed mortgage assignments at the time they were supposedly notarized was if she had been capable of time travel… Stern battled to keep the chaos inside his firm a secret. In 2008 and 2009, whenever the Fannie Mae auditors were about to touch down in Miami for their routine monitoring, Stern’s employees sometimes toiled through the night, ripping the stickers and client codes off of Fannie files and replacing them with those of a different lender. Then, as an extra precaution, they hauled the disguised files to a remote back room.
Florida Foreclosure Mill King David Ste…
Stern then gave Fannie officials the white-glove treatment, with catered meals and chauffeuring. The incomplete files stayed hidden until the auditors left town. I’ve omitted a lot of prurient detail (Stern allegedly didn’t merely grope employees but even fake humped them) but the business-related part of the account is plenty ugly. Nevertheless, Moe’s question is only partially answered. How did robosigning become so widespread across so many law firms spread across the country? This suggests there must have been a propagation channel for this “innovation”. Did servicers go so far as to say, “We use XYZ firm in Florida, they sign affidavits on a factory basis. That enables them to meet the fees we are willing to pay. It’s up to you to make your economics meet prevailing standards.” Tom Adams, a mortgage securitization expert, has suggested that the significance of miscreant servicer Fairbanks has not been recognized. Law professor Kurt Eggert provides a good overview in his 2007 article, “Limiting Abuse and Opportunism by Mortgage Servicers.” In 2003, Fairbanks had become the biggest subprime servicer in the US by acquiring other subprime servicers. Some of the servicers it had bought were affiliated with originators that had overstated property values and engaged in lax underwriting. That meant a lot of the loans were due to go bad. Fairbanks came under pressure, via litigation, downgrades in servicer ratings, FTC and HUD investigations, due to widespread evidence of serious servicing abuses. Notice Fairbank’s argument, per Eggert: In response to the lawsuits and media reports, Fairbanks argued that it was being blamed for the problems inherent in the portfolios that it had acquired, such as Conti’s. Such portfolios, Fairbanks claimed, presented special problems because they had not previously been serviced properly and because subprime borrowers present special challenges, such as their precarious financial condition and the lack of escrow accounts for taxes and insurance in these mortgages (Collins 2003a). Furthermore, Fairbanks argued that because many of the loans it acquired were already delinquent, it would naturally receive a greater number of complaints (Mitchell 2003). In May 2003, according to an executive at Fairbanks, about 30 percent of its 600,000 home loans were more than two payments behind, and 45,000 of its loans were in foreclosure. Why is this significant? Adams argues that everyone is missing the causality. Servicing agreements simply do not pay enough for the servicer to handle a high level of delinquent loans (Adam Levitin has also made the similar observations). When they wind up with a high enough level of delinquencies, the only way they can find out of their fee mess is to cut corners to such a degree that it railroads consumers, or engage in other types of abuses to increase fees (we’ve commented repeatedly on how servicers charge junk fees and engage in fee pyramiding that is in violation of their contracts and Federal law, yet goes unchallenged. And these fees are often so large that they can quickly add up to thousands of dollars, well beyond what even a responsible borrower can pay. So overly low fees and immutable contracts, perversely, are the breeding ground of criminal behavior. Yet the officialdom is still remarkably loath to acknowledge the level of abuse at servicers. The tone of the AP article suggests that it is becoming harder and harder for them to maintain that fiction. More on this topic(What's this?) The 2011 Foreclosure Flood(Wealth Daily, 1/13/11) U.S. Banks Are Reporting Phantom $1.4T on Interest From Foreclosed Properties: Massive Losses Coming(Shocked Investor, 1/13/11) Face to face with Gerald Celente(Investment Postcards from Cape Town, 2/5/11) Read more onForeclosure, Kingat Wikinvest Topics: Banana republic, Banking industry, Credit markets, Legal, Real estate Email This Post Posted by Yves Smithat4:27 am 24 Comments »Links to this post AddThis
Florida Foreclosure Mill King David Ste…
attempter says: February 7, 2011 at 5:04 am How did robosigning become so widespread across so many law firms spread across the country? This suggests there must have been a propagation channel for this “innovation”. Did servicers go so far as to say, “We use XYZ firm in Florida, they sign affidavits on a factory basis. That enables them to meet the fees we are willing to pay. It’s up to you to make your economics meet prevailing standards.”…. In 2003, Fairbanks had become the biggest subprime servicer in the US by acquiring other subprime servicers. Some of the servicers it had bought were affiliated with originators that had overstated property values and engaged in lax underwriting. That meant a lot of the loans were due to go bad. Fairbanks came under pressure, via litigation, downgrades in servicer ratings, FTC and HUD investigations, due to widespread evidence of serious servicing abuses. We can see the servicers’ proximate interest in robo-signing. But as the second part of the quote demonstrates, it was predictable that the bubble would burst and massive numbers of loans would go bad. It was so predictable, it’s hard to believe it wasn’t predicted, and part of the plan from the start. It’s hard to see how the vast majority of mortgages (and not just subprimes ones) going back to the late 90s weren’t fraudulently induced. So that puts robosigning in a broader perspective. They expected huge numbers of loans to go bad once the bubble burst. They had fraudulently sold these MBS based on those time bomb loans. They systematically failed to convey the notes as per PSA and REMIC requirements. (This is because they were misrepresenting the quality of the loans in the securities, because they wanted to maintain the ability to assign loans to tranches as they went bad, and probably also because they were selling the same loan multiple times. And also to evade recording fees and taxes.) So given the fact that they knew the time would come when they’d be engaging in large numbers of foreclosures with insufficient documentation (since they couldn’t go into court with anyone but the trustee holding the properly conveyed note, otherwise they’d be admitting the MBS were fraudulent), the answer was to use lost-note affidavits which would vaguely vouch that the note had been properly conveyed. Hopefully that would be enough. And since they’d have to produce such massive numbers of these fraudulent affidavits, robo-signing followed as the obvious practice. I’m still trying to figure all this out, but that’s basically the way it looks to me. Jim A. says: February 7, 2011 at 9:19 am Even though everybody KNEW that there was a near-zero chance of borrowers making the agreedupon payments, I’m not sure that those who agreed to service those mortgages anticipated the level of foreclosures. But like the borrowers, they anticipated that this “30 year” mortgage would last for no more than 2 years before the borrower refinanced. But like so many things that worked until it stopped working, and when it stopped, it stopped with a vengence. Because with no real brakes on the system, everything just ran into a concrete wall. attempter says: February 7, 2011 at 5:05 pm
Florida Foreclosure Mill King David Ste…
They knew it was a bubble which would burst (in addition to its inherent unsustainability, their own assaults on the real economy guaranteed people wouldn’t be able to keep paying and buying), and that at least all the subprime loans would go bust, and probably many more. That’s a lot of foreclosures they must’ve anticipated. Dwight Baker says: February 7, 2011 at 9:07 am Harvard, Yale, Columbia and other East Coast Blue Blood Universities teach and preach —– the SEE SAW YAW OF THE LAW BY Dwight Baker February 7, 2011 Dbaker007@stx.rr.com \ http://www.nakedcapitalism.com/2011/02/florida-foreclosure-mill-king-david-stern-shows-crime-sure-didpay.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+NakedCapitalism+ (naked+capitalism) MY TAKE Truth once thought to be the same as Justice took a dump long ago. Maybe some places around the globe there is Justice but certainly NOT IN AMERICA. For the schools of higher education teach those most privileged how to game then con the system for personal profit. Now, the truth is out how David Stern gamed then conned the system, as he obliged the big banks in their squirrelly deals to push along their needs to exit. But what NOW —- SO WHAT I say! Another fine example before us of the sad state that we are all in —- for none of us has the most minuscule form of Justice. For 90 % our lawyers practice the art of the SEE SAW YAW OF THE LAW. At the time of the Obama inauguration our Justice department was castrated! No Balls to the walls investigations any longer for now there were No more Balls, Bobby Kennedy tried to bring some down and he received the fatal bullets. So those in DC know how to walk the line, stay in line and behave as told too. So what will happen with all these things revealed? Probably end up in a Washington Senate Internal Investigation that will give rise to a quick demise of all the hardcore evidence. For again most of our elected officials to spend our money wisely are crooked ass Lawyers schooled in the art of practicing the SEE SAW YAW OF THE LAW. NOW what say you? MinnItMan says: February 7, 2011 at 9:28 am In 2003, the machine was just getting perfected. Aside from a very small number of lenders – Conseco Financial comes to mind – very few foreclosures ended up as repos, so losses weren’t a big factor in the business. Instead, the foreclosure bailout/rescue industry was making money on the spread between jacked up redemption prices, which essentially converted the ubiquitous prepayment penalties into forsclosure fees and add ons to the redemption price, and the jacked up appraised price for the new buyer. I attended a continuing legal ed where a FC attorney said as much, saying “let the loan go to sale where the PrePay no longer applies.” Your client will be better off.” Many states began regulating foreclosure bailout/rescue deals, and when these laws began taking effect – here August 1995 – this market disappeared, and the repos did become a significant factor.
Florida Foreclosure Mill King David Ste…
This aspect never really ocurred to me, but the prepay penalty and the foreclosure servicing charges were about the same magnitude (the servicing charges might have been a little less, thus that attorney’s comment, but they were still a few thousand dollars), and represented a pretty good income stream until nobody was paying them anymore. Volume transactional business always gets takers, even when the numbers don’t work. The takers can always find a way to make them work, at least temporarily. Historically, this is a major reason why insurance is regulated – the tendency is to charge too little when there are no claims, and then be broke when the claims come in. This highlights a key problem reconciling competitive pricing on long term liability with the IBG YBG tendency of volume paper businesses. ella says: February 7, 2011 at 9:32 am In the vast majority of cases white collar crime always pays. Even after a prison sentence and a hefty fine, the criminal is always left with a substantial portion of the fruits of the crime (big bucks). Now, at the mob level we have criminal laws that strip the mobster of the fruits of their crime, provided the state can find the fruits. Time to apply the same law to the white collar criminals and a similar civil claw back as that found in the federal RICO statute. We can start by redefining fraud and other white collar crime to make it easier to prove. Next, we apply the same to set of laws to Corporate types in what in now known as “control fraud”. Let us have personal responsibility at this level as well. (not holding my breath) StillReading says: February 7, 2011 at 9:59 am I have been reading “Naked Capitalism” and other sources, searching for an explanation for the failure of common sense. The best “unified field” theory describing such failure is presented by William Black. http://neweconomicperspectives.blogspot.com/ My reading of Black, and others, provides a straight forward explanation. 1) 2) 3) 4) Fraud Fraud Fraud Fraud pays better than honest. occurred. will spread in an endemic fashion. Fraudulent transactions grow to replace honest transactions. must be stopped or else fraud will continue.
At each step of the complicated sequence, fraud is the explanation for the failure of honesty. The cure for fraud is prosecution. readerOfTeaLeaves says: February 7, 2011 at 11:15 am That’s the best that I can figure. And with computerized networks, there is plenty of anonymity and new means for people to commit white collar crime. But all of this requires that the environment become ‘criminogenic’. Sterns is a chilling example.
Florida Foreclosure Mill King David Ste…
KMR says: February 7, 2011 at 10:30 am Minor but important point of correction: Kurt Eggert’s article was published in 2004, not 2007. Schofield says: February 7, 2011 at 11:21 am Is there any update anywhere on the action the Obama administration is taking to prosecute these Foreclosure Fraudsters? Procopius says: February 7, 2011 at 7:34 pm @schofeild: The Obama administration is NOT planning to do anything about the fraudsters. We must look forward, not back, don’t you know, so that these mistakes are never made again. Also, if he prosecutes the banksters it will make them sad. MinnItMan says: February 7, 2011 at 12:45 pm 1995 should have been 2005 Monday Static says: February 7, 2011 at 1:06 pm Stern can’t be the only hood on Fannie Mae’s go-to debt collectors list. Other firms have not only engaged in felonies, but have either equalled or surpassed Stern’s outrageous behavior, and flourish simply for a lack of press coverage. To hell with that – it’s time for automatic disbarment, is this country a kleptocratic banana republic or what? It’s time for massive civil disobedience. ScottS says: February 7, 2011 at 9:04 pm Fannie’s retained attorney list: https://www.efanniemae.com/sf/technology/servinvreport/amn/pdf/retainedattorneylist.pdf I’ll start you off. Florida retained attorney Shapiro & Fishman just complained to the court that they don’t want to have to swear to the validity of affidavits filed in Florida foreclosures: http://floridaforeclosurefraud.com/2010/03/foreclosure-lawsuits-are-built-on-lies-shapiro-fishmanadmits-foreclosure-claims-cannot-be-verified/ F. Beard says: February 7, 2011 at 1:06 pm Fractional reserve lending in a government enforced monopoly money supply is theft of purchasing power via temporary money (credit) creation. Period. Some claim it is also fraud but that is a relic of the gold standard, imo. Meanwhile, many assume that we can have an honest economy based on that dishonest foundation.
Florida Foreclosure Mill King David Ste…
My question: When? AR says: February 7, 2011 at 2:21 pm Is this article really trying to pin the blame for robosigning on David J. Stern? Are we forgetting about the 2004 DocX price list, and the fact that robosigners were working at LPS until 2010, when a federal investigation induced them to farm out the robosigning to the foreclosure mills, as described by Scott J. Paltrow? http://www.reuters.com/article/idUSTRE6B547N20101206 I commented months ago that the way to the heart of the scam is to turn foreclosure mill attorneys against LPS. LPS software manages servicer operations, directs the foreclosure mills, and fabricates documents for the foreclosure mills. I really think this article is meant to divert attention away from LPS onto the alreadydisgraced DJS. Yves Smith says: February 7, 2011 at 6:45 pm First, robosigning is not the same a document fabrication, although they are related phenomena. Second, you overstate what I said about the article. Please reread the paragrpah in question. AR says: February 7, 2011 at 8:27 pm Yves, You write: “So overly low fees and immutable contracts, perversely, are the breeding ground of criminal behavior.” I think the entire housing bubble was criminogenic, starting at least with the creation of MERS. The intentional destruction, or failure to create and record, documents in a timely fashion was part of the scheme. They wrote the PSAs, knowing there’d be millions of defaults and foreclosures. Robosigners would be required to sign the requisite fabricated documents. MERS took that into account in its plan. Much of the robosigning was done at LPS until the fee-sharing lawsuit, and the public release of the DocX price list. According to Scott J. Paltrow in his December Reuters article: “beginning early in 2010, county recorders’ records show, signing shifted also to law firms under contract with LPS.” It was LPS’ red-yellow-green pressure on the foreclosure mills, not the servicers’. I certainly don’t know the deep history, but based solely on this AP article, I wouldn’t assume that DJS or other foreclosure mills initiated robosigning. MERS‘ plan called for lender employees to do the robosigning, to keep the assignments ‘in house’, thus justifying the ruse of recording mortgages in MERS’ name. Foreclosure mill employees were never supposed to perform that function, within the MERS rationale. But then neither were LPS employees. The same banks who were selling phony MBS securities surely must have known that their servicing arms would have to ‘earn’ their keep via bogus fees. They expected lots of defaults. This was already happening in 2003, according to Kurt Eggert. The mortgages were designed to strip the borrowers’ equity, and the empty MBS and bogus fees were the means towards stripping investors and pension funds.* Why else sell the same loan multiple times? Try to explain how one mortgage payment to one servicer winds up being remitted to several MBS each month. No wonder the PSAs made it impossible for servicers to ask investors’ permission to modify loans. We know that banks have been using perverse fees to bilk credit card holders. Why wouldn’t servicers intend to do the same, regardless of the PSAs fixed fees? And if the intent of the
Florida Foreclosure Mill King David Ste…
masterminds was to collect CDS upon massive defaults, why not construct PSAs that would incentivize servicer-induced defaults? I just assume that the PSAs were written the way they were as part of the overall scheme. Making it impossible to modify loans makes as much sense as setting up servicers understaffed and with software that only drives toward default and foreclosure, like a ratchet, with no way to adjust to individual circumstances of each borrower. Yet that’s what they did, which to me implies that they did it on purpose. But then I’ve become extremely cynical. I have no professional background in any of this, so I’m not assuming or expecting anything other than what I’ve read. Perhaps the professionals are too deep in the weeds to perceive the possibility that this was by design? I know you write about servicer abuse in the hopes that the AGs or Fed or other regulator will do something about this. I was pushing this in comments at other blogs last fall too. So I don’t mean to harm this effort. My impression now is that Treasury is temporarily creating the illusion of a recovery by propping up the economy with bailouts and statistics, while exhorting and enabling the banks to use whatever predatory, parasitic tricks and bogus fees they can devise to ‘earn‘ their way back to ‘solvency’ on the backs of their customers. It seems to be administration policy to look the other way while the banks force as many foreclosures as possible, in order to be paid by GSEs at par for each foreclosure, whether the family was able to pay or not. Since there’s no way to do this legally, robosigning is a feature, not a bug. Florida is the model of a compliant judiciary for carrying out this scheme. * It is my belief that the certain knowledge that peak oil spells the end of capitalism, debt creation, and debt repayment provided the impetus to not only prop up the hollowed-out US economy with the housing bubble, but also to ‘cash out’ of the US economy. Dmitry Orlov described it this way in his Nation video released last week: “So what we saw in the Soviet Union was a political dysfunction where basically the communist regime was so endemically corrupt and so out to steal as much as they could at the very end that they really didn’t even bother paying attention to whether they kept the system going, the system was basically on autopilot until it crashed. Something similar is happening here where we have people in all branches of government, both political parties, really trying to prop up the financial industry which has really become completely irrelevant to most people in the United States who don’t have savings and are not credit worthy. They’re basically trying to use up people’s savings and use up people’s retirement to prop up this set of institutions that only help the very rich people.” http://www.thenation.com/video/157985/dmitry-orlov-peak-oil-lessons-soviet-union Yves Smith says: February 8, 2011 at 1:36 am MERS didn’t write the PSAs, in fact it has nothing to do with origination, no seat at the table. The standard form PSAs were developed long before the industry went off the rails, so you can’t tie the deal design (which was very carefully crafted) with the bad practices that developed over a decade later. In fact, as a crime, it would have been far more successful if they had changed the PSAs to conform with the new practices they started to implement sometime between 2002 and 2004, namely, not transferring the notes to the securitization trust as specified in the PSA. Robosigning is penny-ante and asking for trouble. AR says: February 8, 2011 at 7:19 am I’m fully aware that MERS didn’t originate mortgages or write the PSAs. But MERS was intentionally created (carefully crafted?) as a black box to hide what they intended to do with the mortgages & notes.
Florida Foreclosure Mill King David Ste…
L. Randall Wray wrote that MERS’ 1999 State-by-State Recommended Foreclosure Procedures Manual directs servicers to retain the notes.* They had to use the same boilerplate PSAs from the past or people would have been alerted ahead of time that something was different this time. “The deals were carefully crafted.” Are you saying they carefully crafted the deals but didn’t bother to adjust the PSAs? Maybe this was intentional. If the MERS manual is to be taken seriously then what you sate: “the bad practices that developed over a decade later.” is incorrect. Those bad practices were crafted as well, as far as the MERS manual indicates. * Anatomy of Mortgage Fraud: MERS’s Smoking Gun, Part I http://www.huffingtonpost.com/l-randall-wray/merss-smoking-gun-part-1_b_794713.html?view=print JP Warchild says: February 8, 2011 at 10:38 am It seems clear that a much greater portion of the fraudulent activity was in NOT following the PSA agreements, rather than anything that was actually in them. Blurtman says: February 7, 2011 at 2:29 pm Failed NY Fed Regulator Takes Job With AIG AIG hired Federal Reserve Bank of New York veteran Brian Peters to help manage risk after the bailed-out insurer paid down a credit line with the regulator. Peters is joining as a senior managing director in the enterprise risk management group, according to a Jan. 18 memo to staff from Sid Sankaran, chief risk officer. The insurer was rescued by the Fed in 2008 and repaid the last $21 billion it owed the regulator on Jan. 14. Peters was senior vice president in risk management at the New York Fed, where he helped oversee the 12 “largest and most systemically important financial institutions and industry utilities,” according to the memo. http://www.bloomberg.com/news/2011-02-04/aig-hires-new-york-fed-s-brian-peters-to-risk-managementafter-paying-loan.html “Peters’ risk management talents contributed to the meltdown of Wall Street, rampant fraud, and the TARP bailouts. Based upon that track record, Peters is our man.” said an AIG spokesperson. PJ says: February 7, 2011 at 7:05 pm What”s wrong with this statement below… “Stern battled to keep the chaos inside his firm a secret. In 2008 and 2009, whenever the Fannie Mae auditors were about to touch down in Miami for their routine monitoring, Stern’s employees sometimes toiled through the night, ripping the stickers and client codes off of Fannie files and replacing them with those of a different lender. Then, as an extra precaution, they hauled the disguised files to a remote back room. Stern then gave Fannie officials the white-glove treatment, with catered meals and chauffeuring. The incomplete files stayed hidden until the auditors left town.” What’s wrong, they all including Stern were on the taxpayers dime… no doubt Stern, Fannie Mae “attorney
Florida Foreclosure Mill King David Ste…
of the year” was able to bill back his largess showdered on Fannie Mae auditors, while lining a few pockets, with a good ole wink, wink, nod, nod! Indite the auditors on the taxpayers salary! Short, sweet and simple! Francois T says: February 7, 2011 at 9:47 pm “Yet the officialdom is still remarkably loath to acknowledge the level of abuse at servicers.” You mean “predictably loath” I presume. Officialdumb has a lot to answer for in this unbelievable mess, and it is the very last thing they want to do. So, extend and pretend, obfuscate, spin and more spin is the game plan of Geithner & Compadres. As for Obama, he has an “agenda” to fulfill, and mere distractions like the economy (most especially job creation) just cannot be allowed to be an impediment toward his goal.
THE RESTORATION OF JUSTICE IN FLORIDA, WAR ON BANK SPONSORED CORRUPTION OF GOVERNMENT, THE URGENT NEED FOR LEGISLATIVE EXECUTIVE AND JUDICIAL ACTIONS.
MORTGAGE JUSTICE GROUP
46 N. Washington Blvd, Sarasota, Florida 34236 e-mail: firstname.lastname@example.org 1
THE RESTORATION OF JUSTICE IN FLORIDA, WAR ON BANK SPONSORED CORRUPTION, THE URGENT NEED FOR LEGISLATIVE ACTION. THE PROBLEM DEFINED. 1. Abusive Bill Killed Last Year. Last April Mortgage Justice wrote to members of the House and Senate regarding the Florida Bankers Association’s then attempt to use the power of the Florida State Legislature to commit fraud upon its residents and other real property owners in this State. Fortunately for the residents of Florida, House Bill 1523 and its sister Bill in the Senate SB 2270 was withdrawn and this State did not have to suffer the consequences of this Criminal Effort to hi-jack the Florida legislature to further the Banksters criminal theft of their rightful real property. 2. Dead but it won’t lie down. Just surfaced on the legislative docket for 2011, introduced on March 3rd, at 4.57 pm just before the commencement of the current session, is the inappropriately named “Florida Fair Foreclosure Act” [House Bill # 1191]. This is the latest attempt to Hi-Jack the Florida Legislature for the furtherance of criminal acts. It is sponsored by a Florida Attorney, who, in common with 25% of the Members of State Congress, is in breach of the Constitution’s separation of powers by simultaneously holding office in two separate branches of state government. Additionally, this Representative appears to be occupying an office of profit within one of those branches of government and who quite clearly has a conflict of interest in that her law practice advertises that she specializes in Banking Law. To add insult to injury this ‘Representative’ is a Member of the House Judiciary Committee and the Civil Justice Sub-Committee. This criminally offensive Bill must be removed from the House’s Calendar for all of the above reasons. In the event that it is allowed to progress through the legislative process, any Member of the House who speaks in support, or votes for it after receiving this report will be participating in the further use of our state government for criminal purposes. 3. Two days after the filing of HB 1191, newly elected Senator Jack Latvala sponsored SB 1964 also inappropriately titled “The Florida Fair Foreclosure Act.” The text of this Bill runs to 27 pages and at first glance is a revolutionary document containing major proposed law changes all of which favor more criminal activity by Banksters and in no way can be supported as being in the collective interests of the citizens and residents of the State of Florida. It must also be immediately removed from the Senate Calendar. 4. Prior to the emergence of HB 1191 or its companion SB 1964, SB 428 sponsored by Senator Dean, a retired Sheriff, proposed to increase the number of Retired Judges who can be brought back to the bench to speed up this criminal activity to the further detriment of the people who elected the Members of the House and Senate to office.
The provisions of this Bill adds to the deception by perpetuating the ‘deadbeat borrowers myths’ [whereas this recession was deliberately planned and executed by Wall Street Investment Banks, Main Street Banks, mortgage lenders and their cohorts, including GSE’s, Rating Agencies, MERS and large sophisticated law offices who fabricated their SEC documentation and issued false declarations of compliance with the laws], falsely suggests that the cure is to expedite the rate of foreclosures to bottom out the market and that somehow this unsupportable economic theory will revitalize the economy, allow citizens to pay their taxes and Housing Associations to maintain communities. Senator Dean’s Bill also appears to be flying in the face of democracy. If the voters have rejected a Judge through the ballot, it should not be possible for those judges to be restored to office where they will be able to continue to act as though they had in fact been re-elected. This Bill must also be rejected or withdrawn. 5. The word “Banksters” is not irresponsible Hyperbole. The authors of this report wish to make their reasons for using the word ‘Bankster’ in what is a very factual and reasoned report that exposes serious criminal incursions into all three branches of government to the detriment of our communities, our state, our nation and has repercussions on the rest of the world. The word ‘Bankster’ is not of our invention but was a title earned by the Money Changers at the time of the recession and it is not disrespectful hyperbole, but is used to emphasize the fact that the Banking lobby is not representing a legitimate business but a vast criminal enterprise. That is not hyperbole, or theory, but stark fact. None of the immensely serious matters covered in this report, all of which relate to voluminous crimes and which need the urgent attention of all three branches of our state government, bears any relationship to the legitimate business enterprise collectively known as Banking. This whole report is concerned with massive criminal actions that dwarf anything the Mafia ever did and our use of the ‘B’ word is meant to drive home to readers of this report that we are dealing with the most serious white collar crime, which has directly brought about the biggest financial crisis that has ever confronted this country. That our government institutions are more concerned to protect those criminals than their people is a matter of grave concern to all who are informed. Those numbers are growing rapidly. 6. Senior Judges Become Mass Foreclosure Terrorists. When writing to Members last year we were aware that preventing that Bank Sponsored legislation from passing into law would be a step in the right direction and we still hoped that the Appeal Courts would begin to reverse the wholesale abuse of our citizen’s and resident’s civil rights by a tyrannical Circuit Court system, or that the media might finally start reporting the truth leading to a change of direction in favor of the victims of that abuse, but at best saving Floridians from that proposed law would help an unbelievably bad situation from rapidly worsening. Almost a year later the evidence supporting the urgency of putting those corrupt practices into reverse has increased exponentially. It is now imperative that the judiciary stops the disgraceful abuses of human rights that is endemic in our Courts and which continues to escalate. 7. Courts Routinely Denied Due Process. Last April, when those legislative changes were quietly passing through the Committee stages, without an apparent voice being raised against it, the de facto position was that the judiciary had virtually denied the rights of equal access, discovery, evidentiary hearings, to present evidence and a fair
trial to Defendants in foreclosure lawsuits subjected to Mass Foreclosure Dockets. 8. Senior Judges Waste Legislature's Foreclosure Money, Flout Oaths. The legislature was already in danger of being corrupted by the Banksters last year, but after the failure of the non-judicial bills, proposed new techniques and methods emerged from the Banksters to further their fraudulent white collar criminal abuse of our populace. The legislature obliged by funding the Judiciary to speed up the process and according to statements made by Circuit Court Judges to justify their failure to comply with the law, the Judicial Branch of Government was under instruction from the Legislative Branch to reduce the foreclosure Docket in order to speed up the State’s economic recovery. 9. Leg. & Exec. Collude to Help Banks, Hurt Citizens The Executive Branch played loud and monotonous lip service to protecting Floridians, especially our largely elderly residents and in collusion with the legislators brought about new laws to criminalize persons who engaged in what was described in the legislation as “foreclosure rescue services” a double edged sword which excluded Attorneys and Mortgage Brokers, two of the biggest contributors to the Bankster fraud in the State at a time when it became known that over 10,000 mortgage brokers in Florida possessed criminal records. Whatever, the merits of enacting that law may have been it was truly ‘fiddling while Rome was burning.’ 10. AG Abrogates Duty to Investigate Mortgage & Foreclosure Fraud. At that time there was no interest in listening to suggestions of bank fraud, even less interest in investigating the Banksters, the foreclosure forgery factories, otherwise collectively known as ‘Mortgage Foreclosure Specialist Firms,’ the law offices who were – and still are - filing unbelievable numbers of fraudulent lawsuits in collusion with those forgery factories and local stand in counsels who sit in the Courtrooms with their laptop computers connected to the forgery factories’ electronic ‘Case Management Files where all the steps in each fraudulent foreclosure are documented, thus revealing all the forged and fraudulent documents recorded therein from their original drafting to their presentation to the Judge by Plaintiff’s counsel. The said Case Management Files also contain the identities of the individuals who have forged documents and show when these criminal actions took place together with the identities of the stand-in counsels who recite their repetitive lies to the willing ears of the Judgment hungry judges. These serious frauds upon the Court are occurring in our Courts by the thousand every day that these kangaroo courts are in session. 11. Incessantly Abusive Sheriff and Deputies. However, that same Executive Branch of State Government that window dressed its expressed concern to control corruption, while ignoring the real problem, continued to allow Sheriff’s Deputies throughout the State to act as Court Bailiffs under the direction of Judges and to protect the lawbreaking judges, even participating in intimidation of pro se litigants in Court who dared to try and obtain due process of law to which they have a prescriptive right as Citizens of the United States, Florida residents, or as foreign real property owners in this State. Not content with aiding and abetting the unlawful and tyrannical activities of Circuit Court Judges, the Executive provides the color of law to the unlawful Judgments by enforcing equally unlawful writs of possession illegally Ordered by these Judges when Sheriff’s Deputies evict the victims of that tyrannical abuse from their homes.
12. Legislator Split Loyalties. A number of informed and patriotic citizens, particularly those who keep the rest of us informed as to the truth through Internet blog sites, have been approached by legislators seeking to obtain ideas as to how they can make law changes to hasten our economic recovery. While appearing to be helpful on the surface such approaches are suspect, especially if presented by legislators who are also Bar Members with active law practices in which they unlawfully retain interests whilst serving as elected Officers in the Legislative Branch of Government as their requests for ideas are often made with forked tongue to disguise political motivations, or even their direct involvement in bank corruption and despite their references to the importance of protecting the homeowners, their appeals for help are tinged with the Banksters rhetoric of how important it is for us to help the banks to speed up their foreclosures in order to hasten the economic recovery. 13. Represent the People not Paymasters. Members of our Government are not elected to office, whichever branch of our state government to which they are elected or appointed to represent the interest of Banksters or other corrupting corporations, but by the people with a remit to act for the people. After reading this report and carrying out some simple investigations into the truth of its findings, no voting member of either chamber in our State Congress can possibly justify their continued bending to the corrupt activities of the Banksters as being in the interest of the people whose lives are directly affected by the bills they pass into law. Every voting member needs to remember their candidate’s oath and to act in support of the Constitutions of the United States and the State of Florida. The Bankster’s continued postulations, [echoed by judges across this state, as they unlawfully deprive defendants in their fraudulent lawsuits of their constitutional and statutory rights] that their victims are deadbeat homeowners who borrowed the money and according to their improper definition of delinquency, are just trying to get a free house, is in itself criminal, willful deceit. 14. Legislatures Corrupted by Financial Institutions On the contrary immense damage has already been done as a direct result of the massive frauds that have already been inflicted upon investors, property owners and the general public and rather than continue to follow the misguided path down which the legislature has already progressed by granting money to the Supreme Court, the state’s Judicial Branch of Government to speed up the foreclosure process which is adding to the personal burdens of this States’ citizens, is legalizing the theft of real property from its rightful owners by Banksters, continues to deepen the recession, add to the destabilization of communities, the breakup of families, an increase in blue collar crime and hundreds of millions of Dollars in lost revenue to the State, all to the benefit of corrupt Money Changers, with the support of huge numbers of Members of the Bar who willingly aid them in promoting massive frauds upon our courts and upon their former customers, the residents of the State of Florida and all under the protective shield of the color of law provided by the Executive. 15. Lawyer Sponsored Destructive Protectionism. For such powers to operate within this apparently impenetrable protective barrier is against the interests of our Citizens and residents. This barrier to justice must be removed as a matter of urgency. It is by virtue of the existence of the lawyer sponsored and engineered protectionism embodied in the 1949 changes to the Florida Constitution that the Banksters have
already hi-jacked our entire Court system for their criminal purposes and have exercised control over the direction of legislation by other methods. It was only by the skin of our teeth that they failed to remove the judiciary from the foreclosure process in Florida last year and no doubt their lobby has remained as active as before in Tallahassee. 16. None of the Loans were ever made by the Lenders, but Self-Funded. Judges across this state, are unlawfully depriving defendants in lawsuits of constitutional and statutory rights, echo the Bankster’s continued postulations that their victims are deadbeat homeowners who borrowed the money are trying to get a free house. In point of fact the exact opposite is true as we can see from these realities: (a) JP Morgan Chase's widely reported campaign to buy up property tax lien certificates across America in the hopes of effectively stealing realty for the cost of a few years' taxes. (b) Bank agents buy up houses at foreclosure auctions, flip them to the bank, and give the bank an angle for bilking the mortgage insurance companies the federal government had to bail out to the tune of billions of dollars. Banks participated in appraisal fraud, encouraging grossly overpriced realty purchases. Lenders don't fund mortgage loans till after depositing the alleged borrower's note, thereby making the borrower the source of the funding, and the bank only a middle-man depositor, not an actual lender. This means the closer handed the seller at the closing table an insufficiently funded “hot” check which the seller could not possibly cash till three days later, hence the practice of closing loans on Friday whenever possible. Lenders, sellers, and closers induce the borrower to sign lies in both the note (“for a loan I have received”) and the mortgage (“I am seized of the estate”) because the borrower has never seen the documents prior to closing and the real estate purchase agreement requires the buyer to close if approved for the loan. These create duress to sign without thoroughly reading the docs. Lenders commit fraud by failing to execute a lending agreement with the borrower in advance of closing. This deprives the lender of privity of contract which has serious ramifications and lays the groundwork for allegations of fraud against the lender. Upon signing the note the borrower makes the note into the borrower's chattel, and only the borrower owns it. Evidences of such ownership exist in the UCC language of holder in due course or holder, instead of owner, assignment of rights instead of sale of the note, and requirement to return the note upon satisfaction to the borrower. The borrower never gives right to the lender to sell the note or convert it to
personal use such as through securitization, and so all profits derived from securitization and associated bond sales belong exclusively to the borrower. (i) A variety of factors convert the note from a negotiable instrument to a non-negotiable instrument, or discharge the obligation of the maker, particularly, but not limited to, language in the mortgage that change the borrower's rights to receive presentment and notice of dishonor, rights to receive notice of assignment of beneficial interest in the note, late fees, adjustable interest rates, and loss reserve funds created by unspent mortgage insurance premiums. The US Supreme Court has ruled several times that separation of the mortgage from the note disables the right to enforce the note through foreclosure sale of the realty, thereby making nearly all mortgage foreclosures unlawful and all foreclosure litigation frauds upon the court, warranting disbarment of the attorneys who represent the plaintiff, and fining and jailing of the plaintiff for a number of years.
17. Unlawful Funding. The legislature have already funded unlawful mass foreclosure dockets in the courts, with the abusive outcome to defendants in lawsuits and any extension of judicial personnel to speed this process, will only result in a deepening problem and play into the hands of the criminal Banksters. 18. No such legislation must pass this legislature. Any voting member who votes to support any such measure, or HB 1191 after receiving this report has allowed himself or herself to openly confess to acting on behalf of criminal interests and not for the people who elected her or him to office. 19. Supreme Courts’ Complicity. It is clear that the separation of powers has been completely eroded in our State and must be reinstated. The Florida Supreme Court went to great lengths in 2009 to set up a Task Force to consider how best to deal with the flood of foreclosures. The public were led to believe that they were concerned to maintain the efficiency of the Court system, but everything they focused upon during their deliberations assumed that the Banksters had a Cause of Action against the ‘Deadbeat Homeowners’, whereas the reverse is true. Almost no foreclosure case filed in the Florida Courts can demonstrate Standing. As Judge Shack said in Brooklyn New York, “Standing is a Threshold Issue.” If you do not have standing to file a lawsuit, the suit is frivolous and the Plaintiffs, together with their counsel’s who filed them in the Courts should be punished by being dismissed with prejudice, sanctions and any other appropriate relief provided to the victim of such fraudulent attempt to hi-jack a court of law for illegal purposes. In Florida, however, they are rewarded by Judges who rubber stamp any that are uncontested and refuse to consider any defendant’s defenses, testimony even when told that evidence of fraud upon their court is manifest. THE CORRUPTION AND THE PARTICIPANTS EXPOSED. 20. First, all of the mortgage loans were set up to fail. Preposterous suggestion the Banksters proclaim! Why would we lend you money if we knew you were going to
default and we would not get our money back? Simple, first they did not lend any money, they electronically sold the same fraudulent loan documentation more than once by unlawfully utilizing digitized records whilst pretending that the original notes and mortgages had been eliminated, immediately after the closing, [see Akerman Senterfitt’s submission to the Florida Supreme Court’s Task Force] they obtained signatures from an ill informed population on unilateral declarations of adhesion, not contracts, used those signatures to secure credit from the Federal Reserve and just for good measure insured those loans against the ‘borrower’s’ default up to thirty times over for each loan [which they fraudulently filed documents in the SEC’s public records to falsely demonstrate that they had sold those loans into a Securitized Trust] utilizing a device deceptively named “credit default swaps ”under the auspices of the International Swaps and Derivatives Association to avoid the State Regulations controlling insurance contracts and to use as a secondary scheme to defraud the investors that they had already defrauded when using them as the innocent funders of the biggest Ponzi scheme in history as more fully described below. 21. Second, despite the common belief, none of these ‘mortgage loans’ were sold in the secondary market for the simple reason that it is not legally possible to sell what is not owned. None of the so called lenders on any so called Promissory Note lent any money. If the lender was an FSB, or any Bank it is not permitted to lend any of its depositors or checking account customer’s funds under the Banking Acts. It could only invest funds that it owned or were managing for their customers investment portfolios. Clearly, this could never have been sufficient for them to have funded the vast number of mortgages that were allegedly, but not actually, securitized into Real Estate Investment Conduit Trusts that individually totaled upwards of a billion dollars for each alleged Trust. 22. If the purported lenders on these Notes were small subsidiaries of Banks or Mortgage Brokers who were able to obtain funding from a so called ‘warehouse lender’ they clearly did not have sufficient funds to lend on the massive scale that preceded the financial crises. 23. All this posturing as to the identity of the lender at the closing table, was to give the appearance of compliance with the Rules of REMIC, embodied in IRC 860. In order to qualify for huge tax breaks all loans must have been ‘sold in the secondary market’ and ‘table funded’ loans were specifically excluded. All these incorrectly described ‘securitized loans’ were ‘table funded’ and therefore specifically excluded. Table funding to those unfamiliar with the term describes a process that is the reverse of the concept of a lender making a loan and the loan subsequently being sold through a number of entities and ending its title journey in a Trust for the benefit of the final purchasers of that loan. The original funding started at the opposite end of that cycle and worked its way backward to the pretend lender whose name was on the promissory note. The paperwork was actually supposed to follow the REMIC cycle, but even that chain of title was corrupted by the Banksters. By camouflaging ‘table funded’ loans as qualifying REMIC loans the Banksters engineered and appear to have got away with this massive tax fraud against the IRS. To substantiate the apparent compliance with IRC 860, extensive fraudulent representations were made in the filings submitted to the SEC in the form of prospectuses, trust agreements, mortgage loan purchase agreements, pooling and servicing agreements and more.
24. Any informed inspection of these documents, despite the many thousands of pages of legalize that are sometimes filed to legitimize these crimes for just one fraudulent securitized pool, soon exposes the facts which in total clearly establishes that there was no chain of title and that all the loans were table funded. As described elsewhere in this report the original funds extracted by the Sponsors of the Wall Street Security entitled ‘Mortgage Loan Pass Through Certificates’ once deposited in the Bankster’s bank accounts qualified them to draw ten times the amount of funds to basically do whatever they wanted with. 25. So called borrowers, were not the only victims of this massive Ponzi scheme. Professional investors, including Pension Fund, Mutual Fund, Hedge Fund Managers on Wall Street were all persuaded to part with their investors funds to fund this scam as were Municipalities across America and around the world, not to forget the funds owned by foreign governments and professional investors from other countries around the globe. Anyone, who has ever visited the beautiful Tuscany region of Italy, should know that all those wonderful hilltop towns were bankrupted by these criminal, money-changing monsters. But when it all collapsed in 2009 they came whining for government bail outs, which they immediately used to jack up the international price of oil, driving it to over double its real value thus injuring many more ‘investors’ who bought into yet another Bankster scam and hurt the already suffering people by increasing the price of everything that depended upon the price of oil. Now the whining continues and they still rely upon the integrity of their victims to believe that if they borrowed the money they have a moral responsibility to repay those funds, when they do not respect that same code of ethics when they invest in a bad real estate deal. 26. The Banksters use the same technique upon their victims as they do upon their employees to obtain their support, fear and reward. So do the integrated Florida Bar and any other corrupted body use these stick and carrot methods to enforce compliance and discourage any disobedience. The so called deadbeat homeowners live in fear of getting a ‘bad credit rating’ or worse a foreclosure and/or a bankruptcy on their record and continue to struggle to pay, often rising rates of interest, on deliberately engineered ‘underwater loans.’ The banksters used the same fear and reward techniques to ensure a steady flow of over inflated and ever increasing appraisals – appraisers could refuse to comply and be placed on the Blacklist circulated amongst all the various ‘lenders’ or comply and make money out of the boom. More fraudulent actions that our legislators, executive branch and judiciary happily ignore whilst aiding and abetting the Banksters criminal actions, while continuing to justify it with the war cry – ‘you borrowed the money.’ 27. For the scam to succeed it was essential that the scammers could wrest the money out of the Professional Investors and the Municipal Treasures. They had no option but to utilize ‘table funding’ to get the tax breaks they had to falsify the appearance that the loans were all genuine REMIC loans, which is the same argument they now fraudulently present in the foreclosure lawsuits. First it was necessary to provide the illusion of safety for the funds being invested. The major Wall Street Rating Agencies were the tool used at great profits to those entities. They issued Ratings up to AAA for Pools of Mortgages which were wrongly described as ‘closed loans’ that were owned by a Trust for the benefit of the investors in the income producing Pass-
Through Certificates they were being sold by the Wall Street Sponsors of the nonexistent ‘Pool.’ 28. The Rating Agencies stated that they had examined the mortgage loan files, when in reality the loans did not exist and the Banksters agreement with those entities was that they would not inspect the mortgage files, just make the false statement. The Rating Agencies were paid Billions of Dollars for supplying these fraudulent ratings. These were the documents used to sell the securities and the funds now came under the control of the Ponzi scheme organizers. It was these funds that were now used to draw from the Federal Window ten times the amount of money fraudulently obtained from the investors, which was made available either directly, or through so called warehouse lenders, who were the apparent funders of the loans, as far as the pretend lender was concerned. For this ‘service’ the pretend lenders were paid a large commission, disguised as a ‘yield spread premium.’ 29. From the foregoing paragraph it is an easy step to understand how it was impossible for the ‘lender’ whose identity was printed on the Note and Mortgage to sell his investment into the secondary mortgage market, since it was not that pretend lender’s property, neither was it the property of the warehouse lender, who had obtained the funds from the Wall Street Seller of the Securities or an FSB with whom they were in collusion to maximize the available ‘money’ available all courtesy of the Private Bank that is control of the US Dollar, the Federal Reserve, through its ‘window.’ 30. The identities of all the participants in this fraud are filed in the SEC’s public records. The Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreements are particularly revealing. They disclose participants in the scam as major Wall Street Firms who sponsored the sale of the securities and issued the Prospectus, FSB’s [including such behemoths as Bank of America, Deutsche Bank, J. P. Morgan, Chase, Goldman Sachs, Bank of New York Mellon, US Bank, Wells Fargo, HSCBC, Suntrust bank, GMAC and many more, all masquerading as Trustees of REMICS, Custodians and/or Master Servicers. Those are the entities that together with the GSE’s, Electronic Registration Systems, Countrywide, AIG, Wall Street Broking firms and the Rating Agencies [Standard & Poors, Moodys & Fitches] formed the hard core of this massive fraud. 31. Most of the Trusts, are not Trusts at all, but so called Delaware Statutory Trusts. A search of the Delaware Secretary of States Internet page soon reveals its true status. Just like the Federal Reserve is neither Federal, nor does it have reserves, the Delaware Statutory Trust is neither Statutory, nor is it a Trust. It is in fact a Limited Liability Company that once it is recorded as such, remains in good standing until its sponsor requests its removal. Unlike any other LLC it does not have to submit any returns or pay any annual fees to remain in existence. Perfect cover for entities created to fail, no information can be obtained. 32. When the planned bubble burst occurred, the Ponzi scheme Banksters started on the final phase of their scam, the acquisition of as much real property as they could wrest away from middle class Americans, just as their ancestors had done to devastate the farmers of America in bygone years. However, to perfect this stage of the scam many things had to be done. 33. First, a number of subtle changes had been made to various laws and UCC Regulations around the country, to facilitate such things as large numbers of lost note
foreclosure Complaints, thus ensuring that their sins would be buried under the new clean title that would come from the foreclosure court’s issuance of a new Note. Also they had to woo the judiciary to ensure that homeowners would be denied their right of access to hide the fraudulent paperwork that they and their ‘counsels’ would file in those Courts, all sponsored and engineered by the so called foreclosure specialist firms, more popularly known amongst the informed population as foreclosure forgery factories, such as IPS, Document X and Securities Connection Inc, in Idaho Falls. 34. The first wave of foreclosures used Mortgage Electronic Registration Services as the Plaintiff, when that entity had no ownership or other right to foreclose on any loan that they supposedly were acting as ‘nominee’ for the lender or its assigns. 35. When that door closed, the next wave of foreclosures either claimed that loans were owned by what in fact was a Servicer, or by a Bankster in its role as Trustee. Also, at that time a new angle appeared in the bogus Complaints. They were all filing complaints that the Original Notes had been lost. Many individual defendants in these cases were surprised that a bank had lost a purported negotiable instrument that to the informed person had also been used at the Federal Window to generate another multiple of 10 times its face value in pretend US Dollars. However, Judges, and the staff at the Clerk of the Courts, were viewing thousands of such lost Note Complaints every day it. Also, it never happened when MERS was filing the fraudulent Complaints in Florida, so it appears that the inability of the Banksters to take care of their valuable Notes coincided with being forced to change the pretend Plaintiff. It is impossible to believe that acceptance of these lawsuits based upon such obvious outright lies has never been made a threshold issue. Needless to say it has not and hundreds of thousands of Floridians lost their homes or other real property because such obvious fraudulent submissions had been acted upon by what is now an equally obvious corrupt judiciary, in cahoots with thousands of foreclosure mill attorneys who are filing criminally fraudulent documents in the Courts of Florida and other Judicial States across America. 36. The fear and reward technique was also implemented within the ranks of the Servicers, those original architects of every securitization scam the professional forgery firms and the law offices masquerading as counsel for the pretend plaintiffs, who are in fact appointed by the professional forgery firms and by those other wolves in sheep’s clothing, the government sponsored Fannie Mae and Freddie Mack, also major instigators along with Countrywide and its former CEO. Persons, such as the now infamous Jeffery Stephen, at GMAC (now the government owned ALLY BANK) Cheryl Samons, the Executive at the disgraced law offices of David J. Stern, Scott Anderson in West Palm Beach, Patricia Arango and Jessica Cabrera at the law offices of Marshall C. Watson, Hollan Fintel at the Florida Default Law Group and thousands of other employees, licensed attorneys and hundreds of bankster employees who forged hundreds of thousands of Affidavits, Assignments and other documents, impersonated corporate officials, filed their forged documents in official and court records and committed hundreds of thousands of mortgage frauds and frauds upon the courts, all of which are felonies, in violation of Florida Criminal Statutes. These major crimes are euphemized by the Banksters as “errors in the accuracy of the paperwork’ and other euphemistic terms in recent filings in the SEC of Annual Reports designed to retain the confidence of their investors, but to protect themselves
against what they know will be a flood of inevitable lawsuits filed against them when the truth eventually gets out as to the extent of their frauds upon investors. These filings can be viewed on the SEC’s Edgar Internet site. The same and/or similar euphemisms are used in press releases and in government cover up stories. 37. The ‘lost notes’ miraculously appear months, sometimes years after the Courts were told they had been lost, destroyed or stolen and could not be found, but only in cases where their frivolous lawsuits are carefully and continuously litigated. Many of these ‘found’ notes have sprouted stamps upon their surfaces, or so called Allonges are stated to have been ‘attached’ to what are claimed to be Original Notes. Some, appear to be originals, many however are easily proven forgeries as are the stamps upon the Notes. When expertly examined under a microscope these documents are shown to have been electronically produced either by a color printing device, or a computerized pen and the signatures within the stamps are part of the stamp, meaning that it could be applied by anyone who has such a stamp. Also, it is known that many of these signors are fictitious, whereas others are known to be employed by a different employer than they claim to be signing for. Further, no proof of identity of any of the signors of these stamps, or the date upon which they were impressed is provided. Many of these people are known to be the employees of the professional forgery factories and when filed, become more fraud upon the Court. 38. It is normal practice for these crooked robo-signors to pretend to be Vice Presidents of Banks, or of MERS, or Assistant Secretaries, or to profess personal knowledge, when they have no idea what they are signing, to fraudulently produce Affidavits of Amounts Due and Owing or to Assign Mortgages, together with the Notes when they have no such authority, and do not hold any such positions and for these forged and fabricated documents to be filed in the Courts and/or in the Official Records by licensed Attorneys when acting as counsels, who, by so doing, commit frauds upon the Court. Those forgeries are presented as genuine legal documents where they are tacitly accepted and any attempt to question their integrity by informed pro se defendants is greeted with abuse and ignored by Senior Judges, with no responsibility for what they do under the assumed control of ‘Assigned Judges’ who are elected and appointed by the Supreme Court, but who have in practice abrogated their responsibility to use them as assistants to isolate themselves from shouldering any responsibility for their corrupt and unlawful orders. 39. To all legislators with the fortitude or discipline to read these details of the antics of the fraudulent Banksters and their partners in crime within the Judicial Branch of our State government, it is emphasized that these carefully explained sequences of fraud are not isolated, but are a staple ingredient in almost every mortgage foreclosure case before our courts, including all the unlawful theft of homes that has already occurred in the ongoing ruthless pursuit of the Bankster’s goal. This white collar crime is way out of control. The damage being caused to our beloved State, Nation and the world at large, truly dwarfs the damage that has ever been done by Standing Armies. 40. Any person with a working knowledge of the documentation required by Statute, Decisional Law and Procedural Rule to be produced when filing a lawsuit can ascertain within minutes by reading key parts of the Complaint and exhibits filed in the Court whether or not the Plaintiff has Standing. It did not need this huge effort by the Supreme Court of Florida after listening to the lies presented by foreclosure mill
attorneys (some of the biggest white collar criminals in the State) and the Banksters such as the evidence submitted to them by Akerman Senterfitt on behalf of the Florida Banker’s Association to come up with the perfect front to justify all their activity – the imposition of a new Rule of Civil Procedure requiring all Mortgage Complaints to be Verified with effect from February 11, 2010. 41. What soon became apparent was that many of the foreclosure mills simply ignored this new Rule, some even challenged its validity, but judges continued to accept unverified and incorrectly verified Complaints as though nothing had changed. When the Complaints were verified, they were almost always not in compliance with the Rule, with the Statute governing the requirements needed to meet that definition or the Case Law supporting and amplifying the Statutes. First, the Supreme Court, together with the integrated Florida Bar, despite all that has gone before and what it wishes or believes, does not have the power to legislate through the issuance of Procedural Rules. Therefore the Statute and the Case law will always trump Procedural Rules where there is a conflict. This was recently confirmed by the 2nd District Court of Appeal who unanimously rejected a Petition for Writ of Certiorari presented to it by Bank of America on the grounds that the strict interpretation of the law regarding verification would lead to substantial damage to its and other Plaintiffs in foreclosures. At least some of our Justices are acting correctly and no doubt, recognize that Banksters losses are not grounds to bend laws in our nation of laws. 42. In those cases where Complaints appear to be verified many are verified by counsel to the Plaintiff. Counsel for the Plaintiff cannot verify anything for reasons well known to all attorneys. Further, verification like any other Affidavit is inadmissible hearsay unless the verifier or affiant is subjected to Deposition or appears in Court to testify and be subjected to cross-examination. As all Attorneys know, they cannot testify in any Action where they or their law office is acting as counsel and if challenged their ‘evidence’ must be deemed inadmissible. Just like the hundreds of thousands of such affidavits that have been executed by plaintiff’s counsel and filed in the Courts, before and after the Rule change, they are all inadmissible evidence for hearsay and other reasons, but every foreclosure that has happened in this State since this Bank created financial crisis commenced has been predicated on such documents which are largely unchallenged by uneducated pro se litigants who cannot afford legal representation or by the ‘counsels’ who are supposed to be representing their clients interests in the litigation. On these grounds alone, those Final Judgments in Foreclosure are legally infirm and the title of those properties is stained. 43. Further, the Supreme Court made it easy for these new verifications to be meaningless, because the wording they prescribed allowed the use of the words, “on knowledge and belief” when swearing an oath under the Rules of Perjury. Such words are not permitted by the Statute, neither does the Case law provide any support for their use, except in certain circumstances which are not applicable to these situations. The Supreme Court was aware of the law when it made the rule change. After all, they are the Justices of the Supreme Court of Florida and not a collection of poorly educated rednecks. Those of us who lack general and/or legal education are not allowed to plead ignorance of the law, so it cannot be an option for our Supreme Court Justices to plead lack of knowledge of it in defense of their failure to comply. 44. Nevertheless, the situation today is that only a handful of judges in our Circuit Courts
are concerning themselves with the verification requirement and when the validity of those Complaints is challenged by educated, pro se, litigants or their ‘counsels’ they are brushed off, especially if the law firm in opposition is an expensive and sophisticated firm, that represents the Florida Bankers Association, such as Akerman Senterfitt, who plead one thing when representing that organization to the Supreme Court and quite another when defending the indefensible in a Florida foreclosure court before a senior judge who readily accepts their pleadings as evidenced from the transcripts of official Court Reports. 45. Residents of Lee County who are currently the subject of blatantly fraudulent foreclosures on their Homesteads and other real property have consistently challenged the right of a judge in the 20th Circuit to, Sua Sponte, set their cases for “Docket Sounding.” There is no authority for the setting of Docket Soundings in civil cases to be found in any law or rule, within which, that Court is bound to operate . Further, the judge Ordering these Docket Soundings, states his authority as, “this case is at issue and ready for trial,” a legal definition to be found in the Florida Rules of Civil Procedure unambiguously defines that the said Judge is out of order in using it to justify his actions. 46. The said judge, more often than not, then sets the hearing in front of a general magistrate, without, first, obtaining the consent of the parties as required by the Rules, but instead buries on the third page of his Order a requirement for objections to be raised by any party no later than the day of the hearing in a legally infirm attempt to turn his obligation to comply with the rules into an obligation of the parties. Even when defendants file valid objections to the Setting of the Docket Sounding based on all these arguments, Magistrates still seek to exercise personal jurisdiction by “sending the objecting defendant to a Judge, using the persuasive powers of an armed Bailiff to give this unlawful act the color of law and to bring about compliance,” 47. On a number of occasions, the Court Reports paid for by these objectors has shown that when Judges are asked to justify their jurisdiction to hold Docket Soundings for Cases that are not at issue and ready for trial, they have pled ‘inherent authority’ and stated that they have to hold these hearings because “the legislature has given them funds to speed up the process of the docket.” (Double speak, meaning the obtaining of Summary Judgments in favor of a bankster to steal the Defendants real property]. 48. One such objector, whose court file contains a number of detailed Verified Motions with exhibits that prove, over and over again, the existence of serious misrepresentation and fraud upon the court by officers of the court, involving amongst others, the Plaintiff and its ‘counsel’ found herself appearing at a Docket Sounding in front of the very same judge who had issued the original legally infirm Order who aggressively asked her if she was questioning his authority. Her punishment was to have her case set for trial, when none of the issues had been resolved. Subsequently that trial date was cancelled by the Plaintiff, because it was not ready for trial. In truth it could never be ready for trial in any court other than one as corrupted as the 20th Circuit Court in Lee County, Florida. 49. A serious problem exists within our government. Corruption runs so deep and has become a common talking point and something to grumble about but tinged with a belief that the government is too powerful to challenge. However, as more information emerges as the extent of the corruption, especially bank sponsored fraud
there is a growing willingness to constructively work to put an end to its universal acceptance. To find evidence of corruption entails considerable investigative work, not always made easy by the lack of transparency of relevant government records and the suppression of incriminating evidence. No presumption of corruption of individual Members is assumed in this Report, but it is beyond dispute that the Banksters have obtained support for their frauds from the legislature. It is also relevant that some of you are already aware of the facts being communicated to you, whilst others may be in total ignorance or so politically motivated that you rely entirely on the political teachings of your party and have not opened your mind to things you would rather not hear. What will be true for all of you, who bother to read this report is that by the time you have finished reading it, you will certainly know that the state government to which you have been elected and have sworn an oath of allegiance to its Constitution has either deliberately engaged in corruptive practices or it has been naively deceived into providing a conduit for Bankster fraud, to further their criminal activities, in all three of its branches and know that irrespective of how it has happened, such corruption is against the interests of Floridians and US Citizens. 50. If you have read this far you must no longer buy into the Banksters only justification for their frauds upon the people and the people’s courts, by constantly repeating that the deadbeat homeowners have caused the problems by not paying their mortgages. First, it was the Banksters, not the homeowners who created a massive Ponzi scheme, defrauded Federal and State Tax Collectors, investors and borrowers. It was the same Banksters who jacked-up the appraisals to create a buying fever, destroyed the economy, destroyed the jobs that provided the incomes to pay the ever rising interest on the loans and then have the audacity to proclaim that the borrowers caused the problem by defaulting on their loans. Constant repetition of this and similar sound bytes cannot compete with the facts that follow any detailed investigation into the horrific truth. If you believe these lies and have acted, or propose to act upon them as a public officer of this government you are either part of the corruption, you have allowed yourself to be deceived by those Banksters, or are supporting the Federal Government cover-up. Either way, deliberately deceiving the people from a position of public office is a violation of your oath of office to uphold the Constitution. If you are simply reciting the sound bites because you know the truth but believe you can profit from hiding it behind those sound bites, then beware, sooner or later your sins will catch up with you. There are many opinions and every person in a free society is entitled to express those opinions, but there is always, only one set of facts. 51. This report contains nothing but facts. The truth behind the mortgage meltdown in addition to others set out in this report, is demonstrated by the following set of facts:(a) The Housing Bubble was deliberately planned and implemented by Wall Street entities and the Main Street Banks, including GSE’s. (b) Mortgage and other loans were deliberately set up to fail. (c) The lenders shown on Promissory Notes and Mortgages were not the Lenders, but fraudulently used their licenses to document mortgage loans in the various states and were funded by Wall Street Brokers from the proceeds of the sale of Derivatives in wrongly described AAA rated Mortgage Backed Securities, for which they were paid excessive ‘yield spread premiums’ as a commission.
Notes and Mortgages were not sold in the secondary market, neither were they transferred into securitized mortgage pools. It was impossible for pretend lenders to sell what they did not own. (e) Contrived sales in the secondary market were documented in the Securities and Exchange Commission’s public records to avoid paying federal taxes upon their profits by falsifying the appearance of compliance with IRC 860 by filing bogus Mortgage Loan Purchase Agreements (MLPA) documenting a false chain of title to demonstrate that all their loans had legitimately passed through Real Estate Mortgage Investment Conduits (REMIC), but such transactions did not result in the loans being transferred into the Trusts for which the Bankster Trustee was appointed under the terms of the MLPA and the loans remained under the total control of the said Banksters. (f) The documents filed with the SEC are extensive, frequently running to over 1,000 pages of legal doubletalk, but the persistent and informed investigators have established and evidenced that none of the mortgage loans that they say were put into REMIC Trusts, ever reached those Trusts. In fact, the majority of the ‘so-called’ Trusts were not Trusts but a form of perpetual LLC with zero reporting requirements filed in the State of Delaware for the benefit of those major Banks and/or GSEs, as the true beneficiaries of all the frauds. These ‘Trusts’ are named Delaware Statutory Trusts, but they are neither Statutory, nor are they Trusts. (g) The true Bankster beneficiaries of the frauds knowing the majority of their bogus loans would default, also sold undisclosed and unregulated multiple default insurances and credit default swaps sold through the International Swaps and Derivatives Association on every new mortgage loan in which they were involved to guarantee that default and foreclosure would provide them with immediate profits on their ill gotten loan capital in addition to the bonus profits to be gained from the foreclosed property from its sale, from additional deficiency judgments arising from their deliberate over-appraisal of the properties. (h) It is therefore a fact that in almost every mortgage foreclosure action the foreclosing entity is not the owner of the Note or the Mortgage, never lent any money, is an integral part of a criminally motivated group has already reaped criminal profits, will share in multiple proceeds from insurances, all the Notes have been deliberately eliminated as admitted by the Supreme Court of Florida by the Florida Bankers Association, or if that was also a lie, they pretended to lose them to buy the time to fraudulently create on their faces a further false chain of title, usually, quite different from the chain of title documented in the public records of the SEC. Also all Notes are already paid in full when the bogus foreclosure suits are filed. . 52. We understand that the above text contains major allegations of fraud levied against some of the biggest and most powerful institutions in the land and we do not make
these accusations lightly. We are fully prepared upon request given adequate notice to furnish irrefutable documentary evidence supporting those accusations and if required to justify them with such documentary evidence are willing so to do. It is imperative that no further Bankster sponsored legislation be given any valuable House time, but urgent legislative and other government action must be taken to stop its continuing to undo the damage already done and to structure our State government for the benefit of its present and future citizens. 53. Further, we emphasize that we are not the only source of such information. An ever increasing number of people, many of whom publish evidence of these frauds on specialized Internet Blog sites have amassed huge databases, evidencing and memorializing the fraudulent theft of real property by the Banksters, the frauds upon the court of the licensed attorneys, links to public information, evidence of the tyrannical abuse of defendants in foreclosure lawsuits and much more. The publishers of those sites generally do not allow speculative material to be aired and are quick to remove any suspect information published by their members. Often the information provides links to, or the text of, official documents, news reports, depositions filed in Court Records, relevant legal decisions and much, much more, the content of which is open to confirmatory investigations at source. 54. People seized of full knowledge of the depth of this massive Ponzi scheme continue to ask the question; “why are these criminals not already serving long prison sentences for the barefaced crimes upon our Courts and our Citizens?’ Why is David J.Stern, the Fort Lauderdale Attorney and all the other known skilled conductors of fraud on our courts still avoiding justice? Why is it, that months into the Attorney General’s investigations into the alleged criminal activities of other law firms, including Marshall C. Watson, Florida Default Law Group, Ben Ezra & Katz and & Fishman that no arrests have been made and charges brought against these people? Could it be that the State does not have enough prison cells to accommodate these criminals, or is it because the eventual solution will be another one of those gag ordered settlements described in the following paragraph, where the State, following in the footsteps of the Federal authorities as in the Goldman settlement with the SEC, collects ‘no fault’ payments rather than criminal prosecutions leading to fines and/or imprisonment for those persons convicted of felonies? 55. Why are the Presidents CEO’s and CFO’s of the Banks and their key personnel, together with other entities created as instruments of fraud, to include MERS, Countywide and many other known criminal organizations still enjoying freedom and living the high life from their ill gotten criminal gains while our lawmakers, law enforcers and judiciary are concentrating on helping them to maintain their status quo? Why is it that when the Executive Branches of our government do investigate these people and their corporations that they are always resolved with out of court settlements, which state ‘no fault’ and the ‘fines’ now disguised as settlements are subjected to gag orders and the money goes into the Federal and State coffers and not into the pockets of the victims of their Ponzi schemes? 56. However, people who have a working knowledge of the structure of government, its role in acting as agent for Corporations and in particular the private banking system known as the Federal Reserve and its subsidiaries in addition to knowledge of the structure of the frauds and hard documentary evidence of how it is being done and
who is doing it, no longer ask that question. The answer is simple; our government is no longer acting on behalf of its people but on behalf of its paymasters and corruption is rife throughout this nation and this State. 57. Members of the House and Senate are warned not to vote for any bank sponsored or bank favored legislative changes and not to believe any of their rhetoric or false attempts to describe black as white. However, serious and urgent legislative changes need to be enacted to undermine these corrupt activities, to put a stop to the financial rape of our citizens and to set this State back on the road to prosperity. 58. First, it is necessary to understand why it is necessary to enact such changes in our laws and to fully understand how the people are being abused in our system of hangman’s courts, where defendants in civil mortgage foreclosure cases are treated as though they are criminals, accused of heinous crimes, or worse, already judged to be guilty of them. The main drafter of this letter, a man in his mid seventies, has personally been battered by an armed bailiff in a Civil Court in Lee County Florida at the instigation of a so called Senior Judge for daring to suggest, in the presence of a Court Reporter [who incidentally altered the running order of the dialogue during the hearing when the transcript was produced] that he had a right to equal access to the Court, to object to a non-existent defunct bank continuing to litigate a fraudulent foreclosure action against him and his spouse and to object to an attorney testifying in whispered tones which he could barely hear. All such foreclosure hearings are conducted in these inaudible tones in the 20th Circuit Court and the Court recording system is either switched off or the recordings made unavailable for purchase. 59. For these serious ‘crimes’ he and his spouse were punished by the inflicting of a Summary Judgment, without hearing any of the substantial evidence filed in the case, the tyrannical senior judge entered an Order, falsely stating that he had heard both parties and Ordered that the Defendant be escorted from the court by an armed bailiff. Over a year later the same elderly person was again improperly denied the right to speak in that same case by another tyrannical senior judge despite being a defendant in the case because the pretend Plaintiff’s Motion was for a deficiency judgment against his spouse and UPL was used to prevent him from speaking. Despite the Defendant’s protest the Plaintiff’s Motion was granted to a bank that had been given the loan for free by the FDIC, as is evidenced in the FDIC’s Purchase and Assumption agreement which the Court has refused to consider. Further the defunct bank was unsure as to the identity of the owner of the loan when it filed its complaint, prior to being closed down by its regulator for banking irregularities and other offenses. The elderly Defendant was again escorted from the Court, this time by two armed Bailiffs, while the third Bailiff who was in the Court on that occasion remained inside to maintain Order. Two weeks later, in another case, the same judge again tried to stop that same person from defending himself at a Docket Sounding on the grounds that the signor of the Note was his spouse, but upon finally admitting that as a defendant in that case he was entitled to speak as a pro se litigant in his defense, indirectly admitted on the record that his previous Order to enter a Deficiency Judgment was void and his use of Bailiffs to escort him from the Court was a further act of abuse of an elderly person as was his earlier void judgment, for which no attempt has been made by him to reverse. This is clear evidence of tyrannical judicial behavior which is fully revealed in the official Court Report.
60. Defendants in hundreds of thousands of fraudulent foreclosure cases are herded through these courts in Mass Foreclosure Dockets, sometimes at the rate of a thousand a day, for the sole purpose of being told how many days they have to leave their homes, reminiscent of the show trials of the Third Reich or akin to the processing of farm animals through a stockyard. This is what our State legislators have created and propose to continue to support when they vote for bankster sponsored or supported legislative changes. This has to stop immediately! This is the State of Florida, in the UNITED STATES OF AMERICA, the home of the brave and the finest instrument of democracy ever created – the United States Constitution that was created to prevent the very things that its corruption by Banksters and other Corporations has devastated. 61. All power corrupts, but absolute power corrupts absolutely and it was precisely for that reason that the Founding Fathers enshrined things into our Constitution as amended and improved in the subsequent Amendments, the violation of which impairs or reverses its far seeing benefits to the citizens of this country and this state. Those inviolate contents of the centerpiece of our Democratic Republic were, the separation of Church and State, the rejection of a Monarchy and its surrounding elite [or the creation of any new elites] and the separation of power between the government branches of legislature, executive and judiciary. Any abandonment of those essential elements is fatal to our Democratic Republic and can only eventually lead to violence and civil unrest as evidenced by the French Revolution. Our legislators hold the key to at least putting Florida back into compliance with the principles of the United States Constitution, from which other States might follow their leadership and statesmanship. 62. As legislators you should already know, but to emphasize that the writers of this letter are equally informed, a brief recap of the events that led to this present abuse of the rights of our citizens that occurs on a daily basis in the Florida Courts is deemed necessary. We start with the Florida Bar and the corruption of the State’s Judicial Branch of Government. THE CORRUPTION OF THE FLORIDA BAR AND ITS ROLE IN THIS BANKSTER INSPIRED PONZI SCHEME. 63. The 25 percent of Members of the Legislature that unlawfully hold office because of their continued membership of the Florida Bar, which by virtue of being an integral part of the Supreme Court of Florida is part of the Judicial Arm of Government in this State are fully aware that the tyrannical abuse of defendants in fraudulent mortgage foreclosure cases is made possible by the fact that some 90,000 Florida Bar Members became and remain today an elite sector of our society and enjoy the luxury when acting as Attorneys that their criminal activities will not be prosecuted by the Executive Arm of Government and according to at least one Florida Judge can only be pursued by the Bar. There cannot be any true justification in our Democratic Republic for removing these people from the reach of the Executive Branch. The law requires equality of treatment for all, regardless of race, creed, religion or station in life. Every other business or profession is directly regulated by the Executive Branch, through the State Attorney General and that must be restored if we are to have any
hope of retrieving and maintaining our Democracy. 64. Those Attorneys whose professional guild, The Florida Bar, is not restricted to disciplining its members for breaches of professional ethics, as is every other professional body in Florida, but, provided they do not upset their peers, their members enjoy the unique luxury of having their civil and criminal misdemeanors and serious crimes shielded from prosecution by the Executive Branch, to include the felonies they commit when acting as Attorneys and counsel to their criminal plaintiffs in foreclosure cases. 65. The official surrender of Florida's third branch of government, the Supreme Court of Florida to a private professional trade group, formerly known as the Florida State Bar Association and now known as The Florida Bar, occurred on June 7, 1949. This government takeover set the stage for the present day graft and corruption now found in Florida's judicial system. 66. Since the signing of this court order, The Florida Bar has amassed massive private assets, which continue to rise from investment returns and membership dues, not the property of the state. All this loose unregulated wealth controlled by the Florida Bar’s leaders, absent legislative control of its use, has created an oppressive monster and has fed the corruption and judicial abuse presently experienced by members and nonmembers of The Florida Bar, where the pro-se litigant is treated like a criminal, cannot be represented by anyone other than a Florida Bar member and those who can afford to be represented by ‘counsel’ are represented by persons more concerned about the power of the Bar to strip them of their license for challenging the legality of Court actions or to stand up against corrupt judges, than they are to vigorously defend their client’s interests as their oath requires them so to do. 67. Further, the legal profession has become big business, irrespective of whether individual clients are Plaintiffs or Defendants, where justice is not the objective, but to keep the clock running on billable hours for maximum profit. Even if there are some judges and lawyers dedicated to the proper administration of justice, there are, unfortunately, many who are not and in the Mass Foreclosure Dockets they are almost extinct. Most of those judges as a matter of daily routine abuse the law and the persons over which they obtain, in personam, jurisdiction. They also abuse their judicial immunity and independence and the trust and confidence of the people, who now understand that it is not only the legislative and executive branches of government that have long been recognized as being susceptible to corruption by the power and wealth of corporations, but its Judicial Branch, which is now completely corrupted and ineffective as the instrument of justice intended by the Constitutions when administrating and adjudicating mortgage foreclosure cases. . 68. The integration into the Florida Supreme Court of what is now named “The Florida Bar” occurred in 1949 by Order of the Florida Supreme Court. The Order was issued upon consideration of a Petition from the forerunner of the Florida Bar, “The Florida State Bar Association”, which was not at that time the only professional association then in operation in the state of Florida. The motivation of the Florida State Bar Association at that time was to create a monopoly for itself and to simultaneously create an elite with a title [“Esquire”], to distance their members from the rest of us. 69. The 1949 Order enabled a private professional trade association to establish that monopoly to give legal advice, draft any legal document or act as an advocate in any
legal matter, whether or not such advocacy was conducted in a Court of Law. It also enabled the use (abuse) of the power of the State to enforce compliance with whatever edict they put in their Rules by virtue of their integration with the Florida Supreme Court. Further, by transferring the power of regulation of all of their members from the Executive Branch of government to themselves using the authority of the Judicial Branch of government that effectively took the “Esquires” out of the criminal justice system in respect of activity in which they engaged when acting as a licensed attorney. That unsatisfactory situation still exists today, but is believed to be unlawful and unenforceable. The regulation of all members of the Florida Bar must be returned to the Executive Branch of Government under the direction of the State Attorney General. There was no legal basis for its transfer away from that branch of government and therefore does not require any legislative action for it to be returned. 70. It is the existence of this anomaly in our system of government that has fostered and allowed to continue uninterrupted the unprecedented and voluminous crimes being committed by members of the Florida Bar when acting as Plaintiffs’ counsels in the Mass Foreclosure Dockets. The support of the people of this state when this Order was affected was influenced by the Florida Bar’s postulation that this was done to protect Floridians whereas it was and remains wholly motivated to increase the corruptive power of that private organization. 71. The Florida Bar, [now integrated with the Supreme Court of Florida has apparently been acting without any legal basis for so doing in its investigations and prosecutions for what it deems to be ‘The Unlicensed Practice of Law) UPL). Acting as a ‘self appointed’ arm of the Court, it claims that its Rules provide it with the power to investigate and prosecute the Florida Bar designated ‘crime’ of UPL, thus ensuring that no person who was not under their direct control could offer any legal advice, draft any legal document, or act as an advocate for another person in or out of Court. The last bastion of any opportunity to give and receive legal advice, to draft legal papers, or speak in Court is the so-called ‘pro se’ litigant, who is deemed to be acting in a dual capacity, that of the party in the action and of counsel for that party. In the Mass Foreclosure Docket such people are subjected to tyrannical abuse by Senior Judges with the aid of Court Bailiffs. 72. The authors of this report have searched the Florida Statutes to find authority for the investigation and prosecution of the unlicensed practice of law and can find no such Statute. It appears that there is no statutory authority for its imposition. The Florida Bar’s justification for its investigations and prosecution of UPL is contained in the Rules Regulating the Florida Bar at Rule 10.1.1. Jurisdiction, which reads: “Pursuant to the provisions of article V. section 15, of the Florida Constitution, the Supreme Court of Florida has inherent jurisdiction to prohibit the unlicensed practice of law.” Article V. section 15 of the Florida Constitution reads; “Attorneys: admission and discipline – The Supreme Court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” Article V. Section 15 of the Florida Constitution does not provide any such
‘inherent jurisdiction’ and in fact specifically confines their authority to Members of the Florida Bar. It specifically and unambiguously restricts the authority of the Bar to disciplining “persons’ admitted.” The limit of its conferred authority upon non-members is to refuse them admission. The Supreme Court and the Florida Bar must both be aware that the powers of the Supreme Court under the separation of powers in the Constitution are limited to interpretation of the law. The enacting, or making of laws is the job of the Legislative Branch. Neither the Florida Bar, nor the Florida Supreme Court has any power to legislate and the latter cannot create case law under which to justify its actions, absent an enabling statute. Therefore there cannot be any justification for the Florida Supreme Court or the integrated “Florida Bar to investigate or prosecute UPL in respect of non-lawyers. That lack of legal authority has not prevented it from using its assumed powers to the point of obtaining convictions with penalties that have included incarceration of persons for this ‘crime.’ Neither has it prevented the Florida Bar from using this assumed power to intimidate anyone who criticizes the status quo, challenges their monopoly or exposes unlawful or unprofessional conduct of one of their elite “Esquires.” Such people are harassed by the Bar who on the slightest whim attempt to obtain “information” from their intended victim of their ‘criminal’ prosecution by “asking for full details of business records” which they fully intend to use to substantiate bringing criminal charges against that person, but without any reference to their Miranda rights or even to the existence of the Fifth Amendment. In many instances, however, without any supporting evidence, they swoop without warning, charging their victims with the unlicensed practice of law (UPL) and prosecuting them without due process of law and are denied a jury trial. The Florida Supreme Court should immediately issue a clarification that it does not have and never did have, any statutory or other legal justification for UPL. 73. Their powers over their members are usually exercised through harassment by their peers and/or threats by Bar leaders of being stripped of the license to practice law, on some trumped up charge, if they should attempt to expose the ugly truth, As a result, our state and federal judicial systems have become a corrupt forum for only the wealthy and the powerful. Persons of lesser financial status only receive the amount of "justice" their bank accounts can buy. Our system of justice has been reduced to nothing more than a government-protected racket designed to enrich a select few, especially Corporations and above all the corrupt money changers who call themselves Banks, whilst their victims, the people who need the impartial reliability of an honest government, continue to be abused by the very instruments of government that were carefully designed to protect them. In other words and in simple terms, justice is for sale in Florida, but it is not "on sale." URGENT LEGISLATIVE ACTION IS REQUIRED TO STOP THIS ABUSE. 74. There must be an immediate pause in the progress of any further laws based on the false premises of the Banksters, whether directly sponsored by them or not. 75. Any instructions given to the Judicial Branch regarding the additional finances
paid or payable to them must be immediately withdrawn. To continue to use these public funds to allow the continuation and expansion of the curtailment of our citizens equal access to the law, for the express purpose of speeding up an unlawful process to hasten the issuance of unlawful Judgment Orders obtained by Banks with no Standing based upon Sham Pleadings and ignoring the evidence that alleges and proves that those Judgments have been based upon forged and other fabricated documents and hearsay evidence, filed and presented by officers of the court and to finance the abuses described in this report is unacceptable, constitutes serious and out of control abuse of the laws of this State, including but limited to the separation of powers. All expenditure on these activities [including that already incurred] constitutes corruption of public funds, for which the voting members of this legislature are culpable. 76. All members of the legislature who are also Members of the Judicial Branch of Government by virtue of continued membership of the Florida Bar must immediately resign as legislators or, alternatively, immediately resign from the Florida Bar as they are in open violation of the Florida and United States Constitutions. Refusal to comply will continue to leave every one of those legislators in violation of their Candidates’ oaths with severe criminal potential consequences. If those Bar Members continue to practice law, or benefit from law offices in which they retain an interest, they are also benefiting from profit generated in one branch of the Government, whilst holding public office in another branch of government, in violation of the separation of powers. 77. This report in addition to being hand delivered to all Members of the House and Senate is also being communicated electronically to the Governor and the Attorney General, in addition to non-governmental destinations. In the event that the AG finds that any of the allegations in this report are true and that unlawful actions are being taken by any public officer in any of the three branches of government that she will instigate speedy executive action to ensure strict compliance with the law. This is especially relevant to paragraph 76 herein where the immediate arrest must be ordered of any Member of the House or Senate who is currently a member of the Florida Bar if they refuse to resign their membership of the legislature or the Florida Bar and to charge them with the appropriate constitutional violations. 78. The regulation of all members of the Florida Bar must be removed from the Judicial Branch of Government and transferred back to the Executive Branch of Government. It appears never to have been the subject of enabling Legislation and should not require anything more than a voluntary return of those powers to the Executive Branch or alternatively enforced by the AG. 79. The law requiring Judges to be Members of the Florida Bar must be repealed and upon acceptance of their offices must resign their Bar Membership. Upon termination of their Judicial Office they should be guaranteed re-entry into the bar upon application, such re-entry not to be made conditional based upon their Judicial record, unless their office was terminated upon being convicted of a felony . Irrespective, allegations, supported by evidence of abuse of law by Judges in Office, must be conducted by the Executive Branch, not be subjected to confidentiality, and be vigorously prosecuted with maximum penalties if the
proceedings result in conviction of any felony. 80. The pro-Bankster and pro-Homeowners Association law enacted in the last session of the legislature must be modified to allow the interception of up to half all rental payments received from rentals of properties with delinquent homeowner’s fees. The present law is anti-homeowner, provides no incentive for the homeowner to rent vacant property or to keep existing tenants in the property causing wear and tear upon a property and entitled to repairs and maintenance under the terms of their leases. Further any such intercepted rentals should be first directed to the delinquent fees, secondly to any interest owing and no more than 10% of each intercepted rental shall be paid in settlement of attorneys fees. The present statute is counter productive, prioritizes the funds collected to settle attorney’s fees and is contrary to its expressed intent. 81. The urgent legislative changes must include the equalization of the legal profession in Florida with all other forms of human life, irrespective of whether or not represented by a professional association, guild, or union. There must be an urgent and immediate end to the existing protection from the full force of the law that was created by the integration of the Bar with the Supreme Court of Florida, whether those protections are perceived or real and at present they are certainly real. There must be an urgent end to this severe threat to the quality of life of Floridians, when over 90,000 of our residents enjoy the privileged status of protection against prosecution, other than by their peers, which uses that immunity to threaten and cajole both members and non-members alike, members with the loss of their licenses and non member with prosecution for UPL. This report finds no law that allows the Florida Supreme Court, or the integrated Florida Bar to investigate and prosecute UPL and there is therefore no action required of the Legislature to correct this further abuse of government power with the Judicial Branch of government. THE ROLE AND DUTY OF THE EXECUTIVE BRANCH OF FLORIDA STATE GOVERNMENT TO END CORRUPTION 82. Despite the 1949 change in the Florida Constitution no change was made to that Constitution at any time that permits any person to operate within more than one branch of government at the same time. On the contrary a person is prohibited from holding an office of profit, or of simultaneously operating as an officer in more than one branch of government. This means that the 25% Members of the Florida Legislature that are licensed attorneys and members of the Bar that is integrated with the Supreme Court, cannot be both Bar Members and Legislators. Further all those current members of the Bar cannot participate in law making and every time they vote they are violating their oath of allegiance to the Constitution to both State and United States Constitutions. If this statement upon examination is found to be correct the Attorney General must move to ensure that any violation of that Constitutional law is immediately ended. 83. All current members of the legislature that are currently members of the Bar must immediately resign their public office, or alternatively resign from the Florida Bar with immediate effect to legalize their future participation in law
making in Florida, but will remain in violation of their oaths for all past participations in law making. This letter must be brought to the personal attention of each member of the legislature and recorded on the House and Senate Public Records but it is essential that all members of the legislature who are also Members of the Bar are informed of the importance of compliance with the Florida Constitution and a public record must be made of what actions are taken, if any, upon receipt of this letter. 84. Alternatively, the Florida Bar and the Supreme Court can separate themselves to place the Florida Bar outside the government so that the Bar becomes just like any other professional association its members will be free to occupy offices within the other two branches of government. What cannot happen is the continuation of the status quo. 85. The Attorney General is presently required to be a Member of the Florida Bar. This requirement is in contravention of the Florida Constitution and the Attorney General must not remain a member of the Judicial Branch of Government, subject of course to the Florida Bar remaining as an integral part of the Supreme Court. 86. It is presently mandated that all Judges must be members of the Florida Bar and as anyone who has attempted to force the Disqualification of an abusive or tyrannical judge from adjudicating their cases or because such a Judge has issued legally infirm, Sua Sponte, Orders in his Chambers, they are blatantly refused against all State and Federal statutes and case laws and their peers are not prepared to lift a finger to enforce their compliance. Any Judicial Complaint has to remain confidential which ensures that it remains within the protective shield of the Supreme Court, complete with its integrated Bar. 87. Nevertheless, it is a fact of law that Judges must comply with the laws upon which they rely to exercise their powers of adjudication and that failure to comply with those laws is serious crime, to include Interference with State Commerce and Treason against the Constitution of the United States. Upon receipt of allegations that any Judge is engaging in abuses of law from the bench, must immediately act to investigate those allegations and if necessary suspend the suspect judge from duty, while his case is under investigation and/or being prosecuted to protect the people and the integrity of the law. 88. Judicial immunity does not extend to protecting Judges who by virtue of failure to comply with the law have surrendered their judicial immunity and as a result are acting in their personal capacities whilst masquerading as Judges and the supreme officers of Courts of Jurisdiction which exercise powers of life and death over some people and in foreclosure Actions, wields the power to Order Summary and Final Judgments to deprive residents of this State and Citizens of this Nation of their real property, including their family homes. 89. As if that were not abuse enough the local Sheriff and his Deputies, [who have shielded these Judges during their abuses of power in the Courtroom when acting as Bailiffs under the judge’s control when they are part of the Executive Branch of Government, rather than to act in accordance with the Executive Branch’s responsibility as keepers of the peace and protecting all people from unlawful acts], subsequent to these fraudulent and void judgments being Ordered, then force their implementation again using the Executive Branch of Government by enforcing writs
of possession thus extending the color of law already provided to unlawful acts in the Courtroom to the forced eviction of the wronged individual from their Homesteads or other Real Property. 90. This must be stopped. This is the Paradise State of Florida, part of the United States of America. Enough is enough. Urgent action is required to eliminate these corporation controlling fascist activities from our beloved homeland and democratic republic. 91. Upon receipt and urgent consideration of this report the Attorney General must issue unambiguous instructions to the Sheriffs and any and all law enforcement officers within the State of the serious nature of using the powers of armed law enforcement and by so doing spending public funds under the color of law upon the performance of unlawful acts. This must include acting on the instructions of Circuit or County Court Judges when acting as Court Bailiffs, or participating in any kind of intimidation of any person who is not acting, threatening, or displaying behaviors that indicate impending violent or other abusive behavior. Law enforcement officers must be strongly reminded that they cannot give the color of law to illegal acts whether exercised as Bailiffs in a courtroom or by evicting anyone from their home, if the legality of the writ of possession is in any doubt. Such an Order from the Attorney General would probably exclude most if not all such Sheriff’s evictions of persons who have been the victims of fraudulent foreclosure lawsuits in which they have been deliberately denied their right to a fair trial. IMMEDIATE ACTIONS WHICH MUST BE TAKEN BY THE SUPREME COURT OF FLORIDA TO STOP THE ABUSE OF ITS RESIDENTS BY COURT ADMINISTRATORS, JUDGES AND PLAINTIFF’S COUNSELS IN ORGANIZING OR DENYING DUE PROCESS OF LAW IN MORTGAGE FORECLOSURE CASES AND TO HALT THE FRAUDS UPON THE COURTS BEING COMMITTED IN VOLUME AND DAILY BY MEMBERS OF THE FLORIDA BAR REPRESENTING PLAINTIFFS IN THOSE CASES IN CIRCUIT COURTS. 92. On November 13, 2010 Chief Justice Canady sent a Directional Memorandum to each Chief Judge in the State and copied it to the various people who were the signatories of a letter received by him just two business days prior to his taking that action. 93. The Directional Memorandum appears to have been largely ignored by the Chief Judges and those Judges who are abusing the law by operating Mass Foreclosure Dockets, which by design and operation prevent any possibility that mortgage foreclosure cases will be adjudicated strictly in compliance with the law as specifically Ordered by the Chief Justice in the said Directional Memorandum. 94. Either, the Chief Justice did not expect his Order to be obeyed and was simply window dressing for the benefit of the Florida Press Council, The American Civil Liberties Union and the other entities whose Counsel’s had authored the letter that appeared to prompt him to issue it, or he did mean what he said in which case it is difficult to understand why there has not only been little if any change in the Circuit Courts, but reports and personal experiences of some of the contributors to this report
establish that ever increasing abuses of judicial power and denial of due process rights to the unfortunate victims of the judges’ tyranny are in evidence, 95. Clearly the Supreme Court cannot justify issuing a Directional Memorandum demanding compliance with the law and ignore responsible and documented reports that almost all foreclosure cases are being adjudicated in complete contempt of those laws. Indeed, it is more than evident to anyone who has spent any time in Circuit Courts in this State that the judges adjudicating those case have no respect for the law or the civil rights of defendants in mortgage foreclosure cases that pass through their Mass Foreclosure Dockets. The 20th Circuit in particular has set up the Mass Foreclosure Docket to make it impossible for any defendant in a foreclosure case to set an evidentiary hearing to which they are entitled as a matter of law, before the Assigned Judge on their case. They are not only forced to set any hearing before a so called senior judge, whose appointment is to assist the Assigned Judges, where the time offered is five minutes and at most on the Court’s admission cannot exceed thirty minutes. 96. The Chief Justice must write to every Circuit Court Chief Judge to whom he wrote his Directional Memorandum in November last year and instruct that all Mass Foreclosure Dockets, or any other programs that violate the civil and due process rights of defendants in foreclosure cases be terminated with immediate effect and that all such Hearings on their Court calendars be cancelled and parties notified. All Plaintiff’s and Defendants counsels to be notified electronically that these programs have been abandoned, that all such hearings have been cancelled and the Mass Foreclosure Docket program has been terminated. All pro se litigants must be notified by overnight mail if their court dates are imminent or by US Mail if time permits. The instruction to end all such programs must also be released to the Press and published on all the Circuit Court internet sites. 97. All Members of the Florida bar must be told of the general accusations made against those of them who have been acting as counsel to Plaintiffs in Mortgage Foreclosure Cases and warned of the serious implications to each of them if those allegations upon investigation by the Attorney General’s department, or any Federal Agency are found to be true. Further all Attorneys who presently act as counsel to Defendants in foreclosure cases [including local stand in attorneys] must be instructed to challenge any abuses of due process to which their clients are subjected and not to desist from such action because of fear of improper disciplinary action being taken against them or because they place their own financial interests above those of their clients’ right to justice. 98. With respect to the Chief Justice and all the Justices of the Supreme Court of Florida anything less than compliance with these demands will only serve to emphasize the urgency of the need for the legislative changes this report has called for on behalf of the people of this State. 99. The Supreme Court must also abandon the current mandatory mediation program on the basis that no mediation should be entered into or continued unless proof of Standing is established upon filing a legally correct and verified Complaint, complete with exhibits, as required by law. Before the Courts Order mandatory mediation it must be equitable for them to first establish that the Plaintiff has Standing to litigate
the Case based upon the filed Complaint to include all attachments required to comply with the law. In the majority of foreclosure cases the Plaintiff has failed to demonstrate Standing as required by law and it is wrong of the Courts to continue to provide those Plaintiffs with a mediation vehicle if their Standing has not been established in accordance with the law. Mandatory mediation, is inappropriate where Standing is not established at the time when the lawsuit is filed and the Courts should not allow the Plaintiff’s to use it as a platform to mediate or negotiate any settlement payments of any kind. Where an Order to Dismiss an Action is based upon an in Chambers decision of a Judge and subsequently challenged by the Plaintiff, the right to mediation must remain in suspension pending the determination of the facts. 100. The abandonment or at least, the suspension of the Mediation Program will save Court time, but the time consuming kangaroo courts being adjudicated in this State are not only unjust but an unnecessary consumer of vast amounts of Court time and incur huge unnecessary expenditure and the misappropriation of public funds that could be more usefully directed to stimulating the local economies. 101. The Supreme Court’s Task Force was advised in 2009 that the threshold issue of Standing was the key to preventing the management of foreclosure cases from spiraling out of control, but chose to ignore that advice. It is not necessary for the majority of foreclosure cases to progress through the Courts, simply because they fail to establish Standing when the Complaints are filed. A simple checklist against which all new foreclosure filings are checked would immediately establish whether Standing had been demonstrated. 102. Clerks of the Court could engage suitably trained personnel to check each filing for Standing and electronically record their findings prior to a Judge in Chambers issuing Orders to Dismiss all those cases that failed to comply. As this would remove from the Docket the majority of all filings of foreclosure complaints, the Courts could return to a more normal docket. The Supreme Court’s Task force rejected such proposals but failed to provide a satisfactory argument to support that conclusion, favoring instead, a program of increased filing fees, verified complaints, mandatory mediation and the instigation of Mass Foreclosure Dockets, after having been advised of their duty to maintain due process and in the full knowledge that such Dockets would automatically deprive defendants in those cases of their due process rights in open abuse of the law. 103. The Supreme Court should now Order that all foreclosure Complaints shall be Dismissed if the Complaint has not been verified, the verification complies in all respects with Florida Statutes and Case Law and the Complaint when read together with all legally required attachments fails to demonstrate, prima face, Standing and/or a Cause of Action and that all such Dismissals shall count as a first Dismissal of Plaintiff’s Complaint. The implementation of this Administrative Program will eliminate the pressure on Court time, allow for the eradication of Mass Foreclosure Dockets and end the fraudulent persecution of Bankster’s victims in one fell swoop. 104. The Florida Bar must immediately cease all investigations and any prosecutions of UPL based upon the facts presented in this Report. There is no constitutional or statutory law that permits any such actions. It appears that the Supreme Court may have justified past prosecutions upon case law, but it is not possible with thin powers allocated to the Judicial Branch of Government to establish case law if there is no
enabling Constitutional provision or Statute. Any such rootless case law must therefore be void. The present persecution of anyone who dares to proffer any kind of information or help to a person who is being victimized in the Courts of this State and the courts’ point blank refusal to allow a litigant in this state to choose to use an advocate or an attorney-in-fact to represent them in court, even when the person they try to represent is a spouse or other close relative or lifelong friend violates the Bill of Rights and is detrimental to the adjudication of justice in this state. The Chief Justice must Order the immediate abandonment of the expenditure of any public funds for what appears to be a totally unlawful purpose. 105. This report not only demonstrates that there is no law which authorizes the Florida Bar to proclaim, investigate or prosecute UPL, but well memorializes the true protectionist purpose behind it and the inadvisability of such monopolistic powers being wielded by any private or government organization. It is also of course not in the interests of the people of Florida to be restricted as to their choice of who they can enlist to help them in legal matter. This is not a matter for government to involve itself in. There is already ample protection in our laws to deal with fraudulent misrepresentation to protect the public against being misled. This should and in reality is a matter for individual discretion by anyone who is the subject of litigation. Given the belief of most citizens of the United States that less government is preferable to more government and that decisions regarding the conduct of civil lawsuits are generally confined to adults, there is no justification for spending money on the investigation and prosecution of UPL, except in the circumstances described above where deception and/or false claims have been made to dishonestly provide unfair competition. Most adult Americans are able to make their own decisions about such matters and do not need government interference with their prescriptive right to freedom of choice. They only need to be protected against dishonesty and as the court records and this report memorializes, Florida Bar Membership is no guarantee of that, in fact such is the level of corruption in our legal system in the mass foreclosure dockets that membership of that body might presently be viewed as a distinct disadvantage to anyone seeking Justice in Florida’s Courts. 106. The immediate termination of any UPL pretence by the Florida Bar will have the instant benefit of removing the power of a, proven to be corrupt Bar, over those of their members that want to provide their clients with the full benefit of their skills but are restricted in those desires by their fear of the Bar’s power over them. Putting an end to this power will have the immediate effect of improving its members’ quality of service that will be further enhanced by the competition of non-bar members. It will also enable those previous members of the Bar who were improperly deprived of their licenses to practice law to use their uncorrupted talents and to obtain damages for their wrongful victimization by that monopoly. 107. The separation of powers requires that the Supreme Court cannot be integrated with the Florida Bar and be controlled by that private organization and to argue that any involvement of the Legislature or the Executive Branches is in violation of that separation is a complete fabrication of the reason behind the importance and reason for requiring the separation of powers between the three branches of government. The practice of law is quite separate from the power of interpretation of the meaning of the law and the adjudication of alleged criminal offenses or of Civil Disputes between
parties and the integration of the practice of law into the Judicial Branch of Government is the root of our present corrupt Judiciary supported by those corrupted plaintiff’s legal ‘counsels’ whose standard practices include continuous fraud upon the courts in which they practice law, but whose criminal actions are protected by monopolistic Florida Bar, operating as part of the Supreme Court and of the Judicial Branch. For our members and the Citizens of the United States, March 8, 2011. Mortgage Justice Group.
MORTGAGE JUSTICE GROUP
46 N. Washington Blvd, Sarasota, Florida 34236 e-mail: email@example.com