Notices, Motions, and Records

1. Notices of Appeal.

A notice of appeal should always identify the date and the nature of the order being appealed within the notice itself.

In civil and family law cases: (a) the appellant also must include a copy of the order under appeal in its entirety, as well as any orders on motions that would toll the rendition of the order under appeal (i.e., orders on timely and authorized motions for rehearing); (b) prior to filing, counsel should carefully review the order and applicable law to ensure that the order being appealed is indeed an appealable order. For example, not infrequently, our court receives notices that attempt to initiate appeals of orders simply granting a motion to dismiss or a motion for summary judgment, which are not, ordinarily, appealable final orders (to be appealable, such an order would need to actually enter judgment or dismiss the case with finality).

In criminal proceedings: (a) the appellant, if appealing from an order denying a motion to withdraw a plea, should identify in the notice of appeal the nature of the motion that preceded it (e.g., a Fla. R. Crim. P. 3.170(l) motion or a rule 3.850 motion); (b) if counsel in a criminal proceeding has failed to file a timely notice of appeal within thirty days of the judgment or order, the attorney may file a late notice of appeal along with an affidavit explaining the reasons for the delay (which presumably were not attributable to the client), rather than immediately filing a petition for belated appeal.

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2. Conferral and Consent on Motions

Absent emergency circumstances and when appropriate, counsel should confer with opposing counsel regarding the subject of the motion before filing it. When a certificate of conferral (indicating when and how counsel conferred and whether consent was obtained) is included, counsel should furnish specific details on the timing and means of communication that were utilized. A generic statement that an unsuccessful attempt to contact opposing counsel was made will not satisfy the requirement to confer.

Consistent with principles of professionalism and a lawyer's duties to his or her client, consent on administrative matters, such as a motion to continue oral argument, should be extended whenever possible.

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3. Motions for Extensions of Time

The court recognizes that some cases may require additional time to fully prepare the record and the briefs than what is allowed under the Rules of Appellate Procedure. While initial requests for an extension of time to file an initial or answer brief will often be granted (particularly if it is stipulated or unopposed), counsel should avoid multiple, seriatim requests for extensions of time.

The filing of a motion for extension of time is a request, which may or may not be granted. An order from this court setting a deadline in which to file a brief, or stating that no further motions for extension will be considered, should (like all court orders) be followed scrupulously.

Pursuant to this court's administrative order 2013-1, parties may file a stipulated notice for a specific extension of time for filing briefs. In the alternative, if a motion for extension of time is filed, counsel must confer with opposing counsel before filing it and must include a certificate of conferral. The moving party should include a specific due date on which the brief or response will be due if the extension is granted.

Because an order granting an extension of time for the preparation of the record or index or filing of transcripts automatically extends the time for service of a brief (Fla. R. App. P. 9.300), it is not necessary to file a separate motion for extension of time for that purpose. Also, an appellee need not request an extension of time to file an answer brief when the initial brief has not been served.

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4. Motions to Withdraw as Counsel

Motions to withdraw as counsel that do not conform to Fla. R. App. P. 9.440(b) will ordinarily be denied without prejudice. Motions to withdraw filed by counsel in criminal appeals must also comply with Fla. R. App. P. 9.140(d). A practitioner in a criminal case who files a notice of appeal and fails to comply scrupulously with the applicable rules and/or directions of the court may be subject to sanctions.

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5. Notices of Supplemental Authority

The need to file a notice of supplemental authority should be rare. The procedure should be reserved for extraordinary circumstances or situations where a new case or legal authority has just been published that might impact a fully briefed (but not yet decided) appeal. Preferably, notices of supplemental authority should not be used to include citations to cases or authorities that had been decided, published, and available prior to the briefing. In no event should a notice of supplemental authority be utilized to attempt to avoid the page limits of a brief.

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6. Orders to Show Cause on Finality

If it appears that an order on appeal may not be subject to appellate review, the clerk may issue an order to show cause why the appeal should not be dismissed. Counsel are encouraged to carefully review any authorities cited within the show cause order. If a show cause order is issued, it is often necessary (and more expedient) for the appellant to obtain an amended order from the lower tribunal rather than attempting to convince the appellate court that the order under appeal is sufficiently final or amenable to appeal.

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