Appeals from County Court

to Circuit Court Appellate Division

Andrew Paul KawelKawel pllc

www.kawellaw.com

September 23, 2016

Contents

1 Preliminary Note 2

2 Basis of Circuit-Court Appellate Jurisdiction 22.1 Art. V, § 5, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . 22.2 Section 26.012, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . 22.3 Rule 9.030, Fla. R. App. P. . . . . . . . . . . . . . . . . . . . . . 32.4 What is general law? . . . . . . . . . . . . . . . . . . . . . . . . . 3

3 Local Rules and Administrative Orders 3

4 Proposed Rule Changes 44.1 Rule 9.030(c)(4): Three-judge Panels Mandatory . . . . . . . . . 4

5 Appealable Orders 4

6 Practice Pointers 4

A Appendix: Administrative Order 09-49 6

B Appendix: Local Rules 9

C Appendix: Map to Appellate Clerk’s Office 11

1

1 Preliminary Note

As always, do your own legal research and update it frequently!

2 Basis of Circuit-Court Appellate Jurisdiction

2.1 Art. V, § 5, Fla. Const.

(a) Organization.–There shall be a circuit court serving each judicial circuit.

(b) Jurisdiction.–The circuit courts shall have original jurisdiction not vestedin the county courts, and jurisdiction of appeals when provided by general law.They shall have the power to issue writs of mandamus, quo warranto, certio-rari, prohibition and habeas corpus, and all writs necessary or proper to thecomplete exercise of their jurisdiction. Jurisdiction of the circuit court shall beuniform throughout the state. They shall have the power of direct review ofadministrative action prescribed by general law.

Art. V, § 5, Fla. Const. (italics supplied).

2.2 Section 26.012, Fla. Stat.

(1) Circuit courts shall have jurisdiction of appeals from county courts exceptappeals of county court orders or judgments declaring invalid a state statute ora provision of the State Constitution and except orders or judgments of a countycourt which are certified by the county court to the district court of appeal tobe of great public importance and which are accepted by the district court ofappeal for review. Circuit courts shall have jurisdiction of appeals from finaladministrative orders of local government code enforcement boards.(2) They shall have exclusive original jurisdiction:

(a) In all actions at law not cognizable by the county courts;(b) Of proceedings relating to the settlement of the estates of decedents and

minors, the granting of letters testamentary, guardianship, involuntary hospi-talization, the determination of incompetency, and other jurisdiction usuallypertaining to courts of probate;

(c) In all cases in equity including all cases relating to juveniles except trafficoffenses as provided in chapters 316 and 985;

(d) Of all felonies and of all misdemeanors arising out of the same circum-stances as a felony which is also charged;

(e) In all cases involving legality of any tax assessment or toll or denial ofrefund, except as provided in s. 72.011;

(f) In actions of ejectment; and(g) In all actions involving the title and boundaries of real property.

(3) The circuit court may issue injunctions.(4) The chief judge of a circuit may authorize a county court judge to orderemergency hospitalizations pursuant to part I of chapter 394 in the absence

2

from the county of the circuit judge; and the county court judge shall havethe power to issue all temporary orders and temporary injunctions necessary orproper to the complete exercise of such jurisdiction.(5) A circuit court is a trial court.

§ 26.012, Fla. Stat. (italics supplied).

2.3 Rule 9.030, Fla. R. App. P.

RULE 9.030. JURISDICTION OF COURTS.. . .

(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;(B) non-final orders of lower tribunals as provided by general law;(C) administrative action if provided by general law.

. . .

Rule 9.030, Fla. R. App. P.

2.4 What is general law?

Many cases discuss this matter, but in general, a legislative enactment that hasuniform applicability within a permissible class is a general law. E.g., City ofMiami v. McGrath, 824 So. 2d 143, 148 (Fla. 2002).

3 Local Rules and Administrative Orders

• Local Rules:

https://www.jud11.flcourts.org/General-Information/Local-Rules

Appellate Division Rules appended.

• Administrative Orders:

https://www.jud11.flcourts.org/General-Information/Administrative-Orders

Note that these are unofficial copies (no signatures).

– AO 09-49: In re: Designation of County Court Judges as Acting Cir-cuit Court Judges of the Appellate Division for the Eleventh JudicialCircuit of Florida

This AO is appended. Check your panel: you may have grounds fora procedural objection.

3

4 Proposed Rule Changes

4.1 Rule 9.030(c)(4): Three-judge Panels Mandatory

RULE 9.030. JURISDICTION OF COURTS.

. . .

(c) Jurisdiction of Circuit Courts.

. . .

(4) Panels. Matters within the circuit court’s jurisdiction under this ruleshall be considered by a panel of 3 judges, and the concurrence of 2 judges shallbe necessary to a decision.

5 Appealable Orders

• In general, only final orders of the county court are appealable (with non-final orders reviewable on plenary appeal). Final order is appealable oncerendered. In general, 30 days to file notice of appeal. Notice of appeal isfiled in the county court.

• Nonfinal orders are only appealable when provided by general law. Thismainly applies to criminal law. See, e.g., § 924.07(h), Fla. Stat. (“Thestate may appeal from: . . . All other pretrial orders, except that it maynot take more than one appeal under this subsection in any case.”).

• District courts of appeal have jurisdiction to hear appeals from nonfinalorders rendered in the county court, which certify questions of great publicimportance, when the underlying order is otherwise appealable to thecircuit court. State v. Ratner, 948 So. 2d 700, 705 (Fla. 2007).

• Certiorari review of nonfinal county-court orders is available.

• Aggrieved nonparties proceed by certiorari, not appeal.

6 Practice Pointers

• Get a court reporter: appellant has the burden to produce the recordbelow, and failure to do so can be (and usually is) fatal.

• Get appellate counsel.

• Consider differences in the small-claims rules.

• Appellate dockets and documents now available on the web!

4

• Three-judge panels per Local Rules (see Appendix B).

• Filing.

– No electronic filing.

– File in person (or by mail, if you dare) at the Courthouse Annex, 22NW First Street, Third Floor, Miami, Florida 33128. (See map andphoto in Appendix C.) Enter the building and take the elevators onthe left to the third floor. Exit the elevator and head left. On yourleft-hand side is a Dutch door. Ring the bell.

– No dropbox, but most deadlines are for service, not filing.

• Paperwork.

– Motions. File one original copy. If you want a datestamped versionfor your records, bring a second copy. (But the original should now beavailable on the electronic docket.) Important: bring (or mail) pre-addressed and stamped envelopes for the clerk—one for each party!

– Briefs. File four copies: one original, plus three extra copies for thejudges on the panel. If you want a datestamped version, bring a totalof five copies.

– Record. Same rules as for briefs.

• Orders. Still sent by mail, but the Clerk is (unofficially, but helpfully)e-mailing copies.

• Service. E-service rules apply as usual.

• Timing. Ten days to respond to motions. As usual, five extra days toserve answer and reply briefs, and responses to motions. Important:does not apply to orders!

• Oral argument. Sometimes at REGJB, sometimes at 73 W. Flagler.You can’t find out which judges are on your panel until a few minutesbefore the argument.

• Other quirks. No en banc proceedings in circuit court (Rule 9.331doesn’t apply to circuit court). Difficult to locate binding decisions.Florida Law Weekly Supplement is your friend; you may want to subscribeto it in additional to Westlaw or Lexis. Remember that small-claims rulesdon’t provide for rehearing (impacts issue preservation).

• Getting help. Clerk’s office staff is very helpful. Like everyone else atthe courthouse, they deserve our respect and thanks.

– Main: 305.679.1120

– Fax: 305.679.1113

– Oral argument matters: Lisa Meleance is the case manager whoschedules oral arguments. Her number is 305.349.5789.

5

A Appendix: Administrative Order 09-49

6

- 1 -

THE ELEVENTH JUDICIAL CIRCUIT

MIAMI-DADE COUNTY, FLORIDA

CASE NO. 09-2

(Court Administration)

ADMINISTRATIVE ORDER

NO. 09-49

IN RE: DESIGNATION OF COUNTY COURT JUDGES AS ACTING CIRCUIT COURT JUDGES OF THE APPELLATE DIVISION FOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA ___________________________________ WHEREAS, the Appellate Division of the Circuit Court for the Eleventh Judicial Circuit handles a high volume of appellate cases to be determined by three-judge panels sitting in an appellate capacity, and; WHEREAS, said panels of three judges are comprised of Circuit Judges of each Division throughout the Circuit, which Judges are also responsible for handling their respective Division caseloads, and; WHEREAS, by Administrative Order issued each year, the undersigned cross-designates all County Judges to serve as Acting Circuit Judges when so designated by their respective Administrative Judges, and; WHEREAS, many County Judges have indicated a willingness to serve as Acting Circuit Judges in the Appellate Division, where appropriate, and; WHEREAS, a significant volume of the Appellate Division cases consists of appellate matters arising out of agency, zoning, or administrative action, not consisting of appellate review of County Court orders, and; NOW, THEREFORE, pursuant to the authority vested in me as Chief Judge of the Eleventh Judicial Circuit of Florida, under Rule 2.215, of the Rules of Judicial Administration, it is hereby ORDERED:

1. The Administrative Judge of the Appellate Division of this Circuit is hereby authorized to designate County Judges to serve as Acting Circuit Judges of the Appellate Division, from time to time, as he may be so advised, to serve on Appellate Panels in agency, zoning, and administrative appeals or proceedings as a member of the three-judge panel;

2. Said Acting Circuit Judges so designated by the Administrative Judge of the

Appellate Division shall not serve as the presiding judge in any such appellate review capacity, but as Associate Judge of the three-judge panel;

- 2 -

3. In such agency, zoning and administrative appellate cases, the three-judge panel shall consist of two Circuit Judges and one Acting Circuit Judge as designated by the Administrative Judge of the Appellate Division;

4. The Administrative Judge of the Appellate Division shall coordinate with the Office of

the Clerk in designating the three-judge panels, so that only one such agency, zoning, or administrative appeal will appear on any given oral argument date and the Acting Circuit Judge shall sit only for that appellate matter.

5. Notwithstanding the Acting Circuit Judge sitting as a member of the three-judge

panel for agency, zoning and administrative appellate cases, a third Circuit judge will be available to comprise the three-judge panel for all other appellate matters scheduled on the same oral argument date.

This Order shall take effect on January 1, 2010 and shall remain in full force and effect until

further Order of the Court. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, this ______ day of

November, 2009.

______________________________________

JOEL H. BROWN, CHIEF JUDGE

ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

B Appendix: Local Rules

9

LOCAL RULE R-3-1 ESTABLISHMENT AND DEFINING JURISDICTION OF THE APPELLATE DIVISION OF THE CIRCUIT COURT. The Appellate Division of the Circuit Court is hereby established and will be responsible for the disposition of the following matters: Appeals from the County Court, Dade County. Petitions for writ of certiorari which seek review of a decision of any public body, city or county commission or council, administrative board or agency, or the County Court. The cases referred to in paragraphs numbered I and 2 will be captioned as in the "Appellate Division" of the Circuit Court and will be filed with the Clerk for the Appellate Division to be located in the Metropolitan Justice Building or Dade County Courthouse as designated by the Chief Judge from time to time. Such cases will be consecutively numbered. The cases referred to in paragraphs numbered I and 2 will be heard on their merits by three-judge panels of the Appellate Division, which panels will be determined by random selection among all the judges assigned to the division. Matters preliminary to final determination of such cases will be determined in accordance with rules of the Appellate Division to be hereinafter promulgated by the Chief Judge or Administrative Judge of the Appellate Division. Such other related matters as may be assigned or reassigned by the Chief Judge. NOTE: This Local Rule was approved by the Supreme Court of Florida on December 14, 1982. It amended the Local Rule previously approved.

C Appendix: Map to Appellate Clerk’s Office

Figure 1: Location of the Appellate Clerk’s Office. Image from Google Maps,c©Google.

11

Figure 2: Courthouse East, 22 W. Flagler St. Image from Google Maps,c©Google.

12