STATe yOur iSSue ( S ): new ruLeS 9.210 ( F ) AnD 9.120 ( F )
Appellate Practice Section Chairs : Joe Eagleton – Brannock Humphries & Berman and Chance Lyman – Buchanan Ingersoll & Rooney
These rules work in tandem to ensure that all issues are presented to the Court at the gate .
The year 2021 is off to a good start in the world of Florida appellate law . That ’ s because the Florida Supreme Court has adopted several rule changes to streamline appellate practice . Some of these have received much fanfare ( Arial or Bookman Old Style — that is the question ) 1 ; others have flown under the radar ( for example , the time to transmit the record has been slimmed from 60 days to 25 ). 2 Somewhere closer to the latter category are Rules 9.210 ( f ) and 9.120 ( f ). These rules require parties to include in their jurisdictional briefs to the Florida Supreme Court a “ statement of the issues ” that flags all other issues — i . e ., issues that do not form the basis for the Court ’ s jurisdiction — that they intend to raise at the merits stage . Failure to comply with these rules has doomed many jurisdictional briefs already . 3 So let ’ s explore the policy driving the rules and their technical requirements .
The Florida Supreme Court is a court of limited jurisdiction . Fla . Const . art . V , § 3 ( b ). But when the Court exercises jurisdiction , it need not limit itself to the issues that prompted its power of review ; it may “ address other issues
properly raised and argued before the Court .” 4 For that reason , parties often seek to raise other issues alongside the issues that sparked the Court ’ s jurisdiction .
The problem , though , is that Florida ’ s prior appellate rules did not require parties to identify these issues when briefing whether the Court should exercise discretionary review . The Court would learn of them only after it accepted jurisdiction . This left the Court in the dark about the true character of the case — information key to whether it should invest its limited resources .
Enter Rules 9.210 ( f ) and 9.120 ( f ). These rules work in tandem to ensure that all issues are presented to the Court at the gate . Rule 9.210 ( f ) compels the petitioner to “ identify any issues independent of those on which jurisdiction is invoked ” in a “ statement of the issues ” included in the petitioner ’ s jurisdictional brief . It also obliges the respondent to identify in its statement any other issues that it intends to raise on cross-review . Rule 9.120 ( f ) then echoes these requirements . And Rule 9.210 ( a )( 2 )( E ) answers the question all practitioners want to know : The statement of the issues is “ excluded from the [ 10-page ] limit .” It is also excluded from the 2,500-word limit . 5
To sum up , it ’ s been said that knowledge is power . New appellate rules 9.210 ( f ) and 9.120 ( f ) exemplify this principle . They make the parties show all their cards up front , empowering the Court to make informed decisions on whether to exercise discretionary review . The Court enforces these rules strictly . So practitioners should know their requirements and leave no issue unturned when briefing jurisdiction . n
1
See Fla . R . App . P . 9.045 ( b ).
2
See Fla . R . App . P . 9.120 ( e ).
3
See , e . g ., Machovec v . Palm Beach Cty ., SC21-254 ( Fla . 2021 ) ( striking petitioners ’ brief for failure to comply ).
4
State v . T . G ., 800 So . 2d 204 , 211 n . 4 ( Fla . 2001 ).
5
See Paulucci v . Mellini , Case No . SC21-287 ( Fla . March 8 , 2021 ), available at https :// efactssc-public . flcourts . org / casedocuments / 2021 / 287 / 202 1-287 _ order _ 247246 _ o03fp . pdf .
Author : David M . Costello - Florida Office of the Attorney General
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