RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES
(a)
Applicability. Appeal proceedings in criminal cases will
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
Rules of Criminal Procedure 3.800(a), 3.801, 3.802, 3.850, 3.851,
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 will 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; and
f.
notice of appeal, statement of
judicial acts to be reviewed, directions to the clerk of the lower
tribunal, and designation to the approved court reporter or
approved transcriptionist.
(ii)
Upon good cause shown, the court, or the
lower tribunal before the record is electronically transmitted, may
expand the record.
(3)
Commencement. The defendant must 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
must be served on the state attorney and attorney general.
(4)
Cross-Appeal. A defendant may cross-appeal by
serving a notice within 15 days of service of the state’s notice or
service of an order on a motion under 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 intellectually disabled
under Florida Rule of Criminal Procedure 3.203;
(J)
granting relief under Florida Rules of Criminal
Procedure 3.801, 3.850, 3.851, or 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)
Commencement. The state must 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)(K), the state’s
notice of cross-appeal must be filed within 15 days of service of
defendant’s notice or service of an order on a motion under Florida
Rule of Criminal Procedure 3.800(b)(2). Copies must be served on
the defendant and the attorney of record. An appeal by the state will
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 will 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 of the
lower tribunal have been filed, if necessary;
(D)
designations to the approved court reporter or
approved transcriptionist have been filed and served by counsel for
appellant 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,
when the lower tribunal has entered an order appointing the office
of the public defender for the local circuit, the district office of
criminal conflict and civil regional counsel, or private counsel as
provided by chapter 27, Florida Statutes, that office, or attorney will
remain counsel for the appeal until the record is electronically
transmitted to the court. In publicly funded state appeals, defense
counsel must additionally file with the court a copy of the lower
tribunal’s order appointing the local public defender, the office of
criminal conflict and civil regional counsel, or private counsel. In
non-publicly funded defense and state appeals, retained appellate
counsel must file a notice of appearance in the court, or defense
counsel of record must file a motion to withdraw in the 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 court must 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 must 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 under 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 must
prepare and serve the record prescribed by rule 9.200 within 50
days of the filing of the notice of appeal. However, the clerk of the
lower tribunal must not serve the record until all proceedings
designated for transcription have been transcribed by the court
reporter(s) and filed in the lower tribunal. If the designated
transcripts have not been filed by the date required for service of
the record, the clerk of the lower tribunal must file with the court,
and serve on all parties and any court reporter whose transcript
has not been filed, a notice of inability to complete the record,
listing the transcripts not yet received. In cases in which the
transcripts are filed after a notice of inability to complete the record,
the clerk of the lower tribunal must prepare and file the record
within 20 days of receipt of the transcripts. An order granting an
extension to the court reporter to transcribe designated proceedings
will toll the time for the clerk of the lower tribunal to serve this
notice or the record on 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)
must serve, within 10 days of filing the notice, a statement of
judicial acts to be reviewed, and a designation to the approved court
reporter or approved transcriptionist 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 must serve the designation on the approved
court reporter or approved transcriptionist to file with the clerk of
the lower tribunal the transcripts for the court and sufficient paper
copies for all parties exempt from service by e-mail as set forth in
Florida Rule of General Practice and Judicial Administration 2.516.
(D)
Nonindigent defendants represented by
counsel may serve the designation on the approved court reporter
or approved transcriptionist to prepare the transcripts. Counsel
adopting this procedure must, within 5 days of receipt of the
transcripts from the approved court reporter or approved
transcriptionist, file the transcripts. Counsel must serve notice of
the use of this procedure on the attorney general and the clerk of
the lower tribunal. Counsel must attach a certificate to each
transcript certifying that it is accurate and complete. When this
procedure is used, the clerk of the lower tribunal on conclusion of
the appeal must retain the transcript(s) for use as needed by the
state in any collateral proceedings and must not dispose of the
transcripts without the consent of the attorney general.
(E)
In state appeals, the state must serve a
designation on the approved court reporter or approved
transcriptionist to prepare and file with the clerk of the lower
tribunal the transcripts and sufficient copies for all parties exempt
from service by e-mail as set forth in Florida Rule of General
Practice and Judicial Administration 2.516. 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 approved court reporter or approved transcriptionist to
prepare the necessary transcripts.
(3)
Retention of Documents. Unless otherwise ordered
by the court, the clerk of the lower tribunal must retain any original
documents.
(4)
Service of Copies. The clerk of the lower tribunal
must serve copies of the record to the court, attorney general, and
all counsel appointed to represent indigent defendants on appeal.
The clerk of the lower tribunal must simultaneously serve copies of
the index to all nonindigent defendants and, on 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 must return to the lower tribunal, after final disposition of the
appeal, any portions of the appellate record that were not
electronically filed.
(6)
Supplemental Record for Motion to Correct Sentencing
Error Under Florida Rule of Criminal Procedure 3.800(b)(2).
(A)
Transmission.
(i)
The clerk of the lower tribunal must
automatically supplement the appellate record with any motion
under Florida Rule of Criminal Procedure 3.800(b)(2), any response,
any resulting order, and any amended sentence. If a motion for
rehearing is filed, the supplement must also include the motion for
rehearing, any response, and any resulting order.
(ii)
The clerk of the lower tribunal must
electronically transmit the supplement to the appellate court within
20 days after the filing of the order disposing of the rule 3.800(b)(2)
motion, unless a motion for rehearing is filed. If an order is not filed
within 60 days after the filing of the rule 3.800(b)(2) motion, and no
motion for rehearing is filed, this 20-day period will run from the
expiration of the 60-day period, and the clerk of the lower tribunal
must include a statement in the supplement that no order on the
rule 3.800(b)(2) motion was timely filed.
(iii) If a motion for rehearing is filed, the clerk
of the lower tribunal must electronically transmit the supplement to
the court within 5 days after the filing of the order disposing of the
motion for rehearing. If an order disposing of the motion for
rehearing is not filed within 40 days after the date of the order for
which rehearing is sought, this 5-day period will run from the
expiration of the 40-day period, and the clerk of the lower tribunal
must include a statement in the supplement that no order on the
motion for rehearing was timely filed.
(B)
Transcripts. 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
must, within 5 days from the transmission of the supplement
described in subdivision (f)(6)(A)(ii), designate those portions of the
proceedings not on file deemed necessary for transcription and
inclusion in the record. Appellate counsel must file the designation
with the court and serve it on the approved court reporter or
approved transcriptionist. The procedure for this supplementation
must be in accordance with this subdivision, except that counsel is
not required to file a revised statement of judicial acts to be
reviewed, the approved court reporter or approved transcriptionist
must deliver the transcript within 15 days, and the clerk of the
lower tribunal must supplement the record with the transcript
within 5 days of its receipt.
(g)
Briefs.
(1)
Brief on the Merits. Initial briefs, including those
filed under subdivision (g)(2)(A), must be served within 30 days of
transmission of the record or designation of appointed counsel,
whichever is later. Additional briefs must be served as prescribed by
rule 9.210.
(2)
Anders Briefs.
(A)
If appointed counsel files a brief stating that
an appeal would be frivolous, the court must independently review
the record to discover any arguable issues apparent on the face of
the record. On the discovery of an arguable issue, other than an
unpreserved sentencing, disposition, or commitment order error,
the court must order briefing on the issues identified by the court.
(B)
Upon discovery of an unpreserved sentencing,
disposition, or commitment order error, the court may strike the
brief and allow for a motion under Florida Rule of Criminal
Procedure 3.800(b)(2) or Florida Rule of Juvenile Procedure
8.135(b)(2) to be filed. The court’s order may contain deadlines for
the cause to be resolved within a reasonable time.
(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
of appeal is filed; provided that the defendant may not be released
from custody until the notice of appeal is filed.
(2)
Appeal by State. An incarcerated defendant charged
with a bailable offense must 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 must 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 will be by the court on motion.
(i)
Scope of Review. The court must review all rulings and
orders appearing in the record necessary to pass on 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 post-trial 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.”
2020 Amendment. The reference to appeals to the circuit
court of nonfinal orders by the State was removed following the
repeal of section 924.08, Florida Statutes (2019), to clarify that final
and nonfinal appellate jurisdiction in criminal cases is vested in the
district courts of appeal.
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.
Source: Florida Rules of Appellate Procedure, effective September 4, 2025.
View the official rules: Florida Rules of Appellate Procedure — The Florida Bar (PDF)