# 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 Appe llate 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- 2

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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 Ste ering Committee also received input from the Flor ida 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 S teering 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 s ubdivision (g)(1) and
given the title “B riefs on t he Merits. ” Subdivision (g)(1) includes initial briefs
filed pursuant to new subdivision (g)(2)(A), which addresses the circumstances- 3

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when an argua ble 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. N ew subdivision (g)(2)(B) specifically

addresses the handling of u npreserved 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) all ows 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 langua ge is indicated by
underscoring . The amendm en ts shall become effective July 1, 2016
, at 12:01 a.m

.

B ecause the Court did not publish the proposed amendment s 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- 4

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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 Procee ding

– 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

Ju lianne 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 s cheduled in this case. The C ommittee 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 Cou rt, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399

- 1927; no additional copies are required or will be accepted.- 5

- APPENDIX

RULE 9.140. APPEAL PROCEEDINGS I N 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 service transmission 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 unp reserved 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 cha nges ]

Committee Notes [No changes]
Court Commentary [No changes]