Supreme Court of Florida

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No. SC15-2296

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IN RE: AMENDMENTS TO FLORIDA RULE OF APPELLATE 

PROCEDURE 9.140.

[June 30, 2016]

REVISED OPINION

PER CURIAM.

This matter is before the Court for consideration of proposed amendments to 

Florida Rule of Appellate Procedure 9.140. We have jurisdiction. See art. V, § 

2(a), Fla. Const.

The Florida Supreme Court’s Criminal Court Steering Committee (Steering 

Committee) filed a petition proposing amendments to rule 9.140(g) (Appeal 

Proceedings in Criminal Cases; Briefs). The Steering Committee’s proposal arose 

from a June 19, 2015, request from the Court to consider whether a rule 

amendment to the Florida Rules of Appellate Procedure was necessary to address 

the circumstances when a sentencing error is identified in the course of an Anders 

v. California, 386 U.S. 738 (1967), review. The Court further directed the Steering 
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Committee to consider whether other changes to the appellate rules related to the 

adjudication of Anders cases would be beneficial.

In considering the Court’s referral, the Steering Committee included liaisons 

from the Criminal Procedure Rules Committee and the Appellate Court Rules 

Committee. The Steering Committee also received input from the Florida Public 

Defender Association and the Office of the Attorney General. The Steering

Committee first published its proposed amendment to rule 9.140(g) in the 

September 15, 2015, edition of The Florida Bar News. The Steering Committee 

received two comments, and made changes to its proposal accordingly. The 

Steering Committee then republished its revised proposal to amend rule 9.140(g), 

in the November 1, 2015, edition of The Florida Bar News. One comment was 

filed in response to the Steering Committee’s proposal. The Steering Committee 

subsequently filed a response and new appendix with the Court, modifying its 

proposal to amend rule 9.140(g)(1) in response to the comment. The Court did not 

publish the Steering Committee’s proposal following that submission.

Upon consideration of the Steering Committee’s report and the comments 

received by the Steering Committee, the Court amends rule 9.140(g) as follows. 

The existing language in subdivision (g) is renumbered subdivision (g)(1) and 

given the title “Briefs on the Merits.” Subdivision (g)(1) includes initial briefs

filed pursuant to new subdivision (g)(2)(A), which addresses the circumstances 
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when an arguable issue is identified in the course of an Anders review. In addition, 

the word “transmission” is substituted for the word “service.” New subdivision 

(g)(2)(A) codifies Anders case law. New subdivision (g)(2)(B) specifically 

addresses the handling of unpreserved sentencing, disposition, or commitment 

order errors, and allows for a motion to be filed in the trial court to correct the 

error. Specifically, subdivision (g)(2)(B) governs whether the brief should be 

struck for filing of a Florida Rule of Criminal Procedure 3.800(b)(2) motion to 

correct an unpreserved sentencing error, or a Florida Rule of Juvenile Procedure

8.135(b)(2) motion to correct an unpreserved disposition or commitment error. 

Finally, the last sentence in subdivision (g)(2)(B) allows the court to set deadlines 

in order to keep the case on track for timely disposition.

Accordingly, we amend the Florida Rules of Appellate Procedure as 

reflected in the appendix to this opinion. New language is indicated by 

underscoring. The amendments shall become effective July 1, 2016, at 12:01 a.m. 

Because the Court did not publish the proposed amendments prior to their 

adoption, interested persons shall have sixty days from the date of this opinion in 

which to file with the Court comments to any of the rules herein adopted or 

amended.1

 

1. All comments must be filed with the Court on or before August 29, 2016,

with a certificate of service verifying that a copy has been served on the Florida 

Supreme Court Criminal Court Steering Committee Chair, The Honorable Jay 
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It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, 

and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Criminal Court Steering Committee

Judge Jay Paul Cohen, Chair, Criminal Court Steering Committee, Daytona Beach, 

Florida, and Barton Neil Schneider, Staff Liaison, Office of the State Courts 

Administrator, Tallahassee, Florida,

for Petitioner

Julianne M. Holt, Public Defender, Thirteenth Judicial Circuit, Tampa, Florida,

Responding with Comments 

 

Cohen, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, 

Tallahassee, Florida 32399-1925, schneidb@flcourts.org, as well as a separate 

request for oral argument if the person filing the comment wishes to participate in 

oral argument, which may be scheduled in this case. The Committee Chair has

until September 19, 2016, to file a response to any comments filed with the Court. 

If filed by an attorney in good standing with The Florida Bar, the comment must be 

electronically filed via the Portal in accordance with In re Electronic Filing in the 

Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order 

No. AOSC13-7 (Feb 18, 2013). If filed by a nonlawyer or a lawyer not licensed to 

practice in Florida, the comment must be electronically filed via e-mail in 

accordance with In re Mandatory Submission of Electronic Copies of Documents, 

Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed 

documents must be submitted in Microsoft Word 97 or higher. Any person unable 

to submit a comment electronically must mail or hand-deliver the originally signed 

comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval 

Street, Tallahassee, Florida 32399-1927; no additional copies are required or will 

be accepted.
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APPENDIX

RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a) - (f) [No changes]

(g) Briefs.

(1) Briefs on the merits. Initial briefs, including those filed 

pursuant to subdivision (g)(2)(A), shall be served within 30 days of 

servicetransmission of the record or designation of appointed counsel, whichever is 

later. Additional briefs shall 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 shall independently review the record to discover any 

arguable issues apparent on the face of the record. Upon the discovery of an 

arguable issue, other than an unpreserved sentencing, disposition, or commitment 

order error, the court shall 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 pursuant to 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) – (i) [No changes]

Committee Notes

[No changes]

Court Commentary

[No changes]