Content Conundrum: Why a Petition for Belated Appeal is not an Appellate Brief

Although we all believe that we can wear any legal hat, sometimes it can be easy to forget that the world of appeals is miles away from the trial realm. What I mean to say is that maybe you should consider hiring an appellate attorney for your unique DCA issues – instead of winging it. Although that may work just fine on your feet in trial, it will almost surely cost you in the DCA.

However, if you feel that you can tackle any appellate issue, this blog post will (hopefully) serve as a brief reiteration of the difference between a petition for belated appeal, under Fla. R. App. P. 9.141(c) and an appellate brief, filed after timely notice of appeal. It is intended to aid you in determining whether you can file a petition for belated appeal, and if so, what to include in the petition.

First: start with the rule! The rules of appellate procedure contain a specific rule for individuals who are seeking a belated appeal. All the requirements for a belated appeal, the petition for belated appeal, and the contents of the petition for belated appeal are contained in Rule 9.141, subsection (c). The first thing to do is: read the rule.

Now that you have read the rule. Here are a list of a few common mistakes that I have encountered when dealing with petitions for belated appeal:

First major blunder to avoid: turning your petition for belated appeal into an appellate brief. Although you may have the natural urge to state your grounds for appeal in the petition for belated appeal (hereinafter, "PBA") – don’t.

Rule 9.141(c) specifically provides six items that must be included in your PBA. These items can be found in subsection (c)(4) of 9.141. Stick to these requisite elements.

You can stick to these elements with confidence because section (c)(6) of 9.141 specifically provides: if the court is satisfied that grounds for belated appeal exist, it will treat your PBA as a timely notice of appeal.

Accordingly, you will have the opportunity to submit a full appellate brief in accordance with Rule 9.210, Florida Rules of Appellate Procedure.

In addition, the case law is clear that "[a] criminal defendant seeking a belated appeal need not demonstrate the possibility of success on the merits of the appeal." See Orr v. State, 647 So. 2d 877, 878 (Fla. 3d DCA 1996). "Indeed, a criminal defendant need not even set forth in the motion the basis for the appeal sought in his [PBA]." Id. (emphasis added). So for starters, do not turn your PBA into a brief; there will be plenty of time to argue your merits once you are actually granted an avenue for appellate review.

The next blunder to avoid is filing an untimely PBA. Rule 9.141(c) governs the filing of a petition for belated appeal and has specific time limitations.

Failing to file these time limitations will result in dismissal of your petition. [if you are outside the time limitations for filing a PBA, take a look at our blog on habeas corpus as a possible solution].

Rule 9.141 provides that you must file the petition within not more than two (2) years after the time for filing a notice of appeal has expired. There is an exception however: if the petition states specific factual circumstances that the petitioner was either: (1) unaware that no notice of appeal had been filed; (2) not advised of his right to appeal; or (3) was otherwise prevented from filing an appeal based on circumstances outside of the petitioner's control and the petitioner could not have ascertained such facts with the exercise of due diligence – the petition may be filed within four (4) years.

In any PBA this is the "meat" of your argument and petition. This should make up the majority of the content of the PBA (not the grounds for appellate review, as discussed above).

Third blunder to avoid: failing to state the facts on which the motion is based under oath. The rule specifically requires that the facts on which the PBA is based must be under oath. The rule provides that the petitioner, or the attorney for the petitioner must attest to the factual basis asserted in the PBA. In the case of a petition filed in the four (4) year limitation window, the facts furnishing grounds for the PBA must attested to by the petitioner under oath.

Another tip that might be helpful as you research for your PBA is noting that that Rule 9.141(c) used to be 9.140(j) – if you are researching using the rule number, try searching for the previous location instead; you'll find a plethora of case law there. The case law under the prior version of the rule will still bind the court, as the notes of 9.141(c) specifically state that the location change from 9.140(j) was not meant to be substantive, but instead, was a change of convenience and for ease of reading.

The long and short: if you take on an appellate issue that you are unfamiliar with remember to start with the rule, do due diligence in researching applicable case law, and when all else fails: consult with an appellate attorney! [Did I mention we handle appeals?]

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