The person who loses at the trial court level has a right to appeal the decision to a higher court. The appellate court will review the lower court's decision and either uphold it or overturn it, also called affirming or reversing the decision. This process is called the appellate process. What happens when you lose a case on appeal? You may have a few options. One option is to file an appellate motion for rehearing. Another option is to consider bringing your case before the Florida Supreme Court.
Appealing to the Florida Supreme CourtThe Florida Supreme Court is the highest court in Florida. The Supreme Court has the discretion to review the decisions of the Florida District Courts of Appeal. If you lost your case on appeal in a Florida District Court, you could petition the Supreme Court to hear your case. You will need to file your notice to appeal with the clerk of the district court of appeal that reviewed your case within 30 days of the appellate court issuing the order. Your petitioner's brief can only discuss issues that are within the jurisdiction of the Supreme Court. Your petition needs to contain an appendix of the district court of appeal’s decision.
The Supreme Court has a mandatory review authority and discretionary jurisdiction. The Supreme Court must review final orders imposing death sentences, bond validations, District Court decisions declaring a state statute or provision of the state constitution invalid, and certain orders of the Public Service Commission on utility rates and services. However, the Supreme Court is not required to hear cases that do not address the issues mentioned above. The Supreme Court may choose to review the following types of cases:
Filing an Appellate Motion for Rehearing After Losing an AppealIt is possible to file a motion for rehearing in a Florida appellate court. Filing a motion for rehearing at the appellate level is different from filing a motion for rehearing in a Florida trial court. When you file a motion for rehearing at the appellate level, you can only bring up issues previously raised during the appellate or review proceeding. Specifically, you can only bring up issues raised in the appellate briefs. Rule 9.331 of the Florida Rule of Appellate Procedure governs appellate motions for rehearings:
“A motion for rehearing…a written opinion may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding….A response may be served within ten days of service of the motion.”
When is a Motion for Rehearing Appropriate?There is a strong sentiment in Florida courts that attorneys can misuse the option of filing a motion for rehearing. The purpose of a motion for rehearing is not to raise new arguments for the first time. Additionally, the motion for rehearing should not re-argue the merits of the appeal. You are not allowed to raise fundamental error arguments for the first time in an appellate motion for rehearing nor in a reply brief.
Instead, motions for rehearing are intended to raise “points of law or fact that...the court has overlooked or misapprehended.” The purpose of filing a motion for rehearing is to call the appellate court's attention to something the court has misapprehended or overlooked without making a legal argument.
According to an opinion outlined in Goter v. Brown, 682 So.2d 1255, 1256 (Fla. 4th DCA 1996), a lawyer should not use a motion for rehearing as means to continue his or her “attempts at advocacy.” The motion should simply point out an “overlooked or misunderstood fact or circumstance.” The opinion went on to note that if the appellate court “wants an additional argument, we know how to say so.” In other words, appellate lawyers should not use a motion for rehearing to try to make new legal arguments or even bring up legal arguments that were part of the appeals process. Instead, the motion should simply point out a fact or circumstance that the court misunderstood.
What if the Court Issues a Per Curiam Affirmation?Typically, Florida appellate courts will issue a written opinion that either affirms or reverses the lower court’s decision. Sometimes they issue a pure curiam affirmance without issuing an opinion. It is challenging to show that a court had overlooked something in a motion for rehearing when the court did not issue a written opinion stating how they made their decision. In these instances, succeeding with a motion for rehearing is exceedingly rare and typically limited to cases when another District Court of Appeal or the Supreme Court issues a decision after oral argument and briefing.
It is possible to file a motion for rehearing en banc per the Florida Rule of Appellate Procedure 9.311. An attorney can request a hearing “en banc” that includes all of the active district courts of appeal judges. However, an attorney can only request an en banc hearing solely because the issue is of exceptional importance. Or, an attorney can state that an en banc hearing is necessary to maintain uniformity in the district court’s decisions. It is exceedingly rare that a Florida appellate court will grant an en banc hearing.
Contact a Florida Appellate Lawyer TodayAre you an attorney who is not sure how to proceed after losing an appeal? If so, attorney Donna Solomon of Solomon Appeals, Mediation & Arbitration is here to help. We offer consultation services to attorneys on appellate matters. Contact us today to schedule your initial consultation.
Donna Greenspan Solomon, Esq., handles business-related litigation and appeals (state and federal), mediation, and arbitration.