APPEAL PROCEEDINGS IN CRIMINAL CASES

(a) Applicability. Appeal proceedings in criminal cases will be as in civil cases except as modified by this rule.

(b) Appeals by Defendant.

(1) Appeals Permitted. A defendant may appeal:

(A) a final judgment adjudicating guilt;

(B) a final order withholding adjudication after a finding of guilt;

(C) an order granting probation or community control, or both, whether or not guilt has been adjudicated;

(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rules of Criminal Procedure 3.800(a), 3.801, 3.802, 3.850, 3.851, or 3.853;

(E) an unlawful or illegal sentence;

(F) a sentence, if the appeal is required or permitted by general law; or

(G) as otherwise provided by general law.

(2) Guilty or Nolo Contendere Pleas.

(A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:

(i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.

(ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only: a. the lower tribunal’s lack of subject matter jurisdiction; b. a violation of the plea agreement, if preserved by a motion to withdraw plea; c. an involuntary plea, if preserved by a motion to withdraw plea; d. a sentencing error, if preserved; e. an error in the sentencing process, if preserved; or f. as otherwise provided by law.

(B) Record.

(i) Except for appeals under subdivision

(b)(2)(A)(i) of this rule, the record for appeals involving a plea of guilty or nolo contendere will be limited to: a. all indictments, informations, affidavits of violation of probation or community control, and other charging documents; b. the plea and sentencing hearing transcripts; c. any written plea agreements; d. any judgments, sentences, scoresheets, motions, and orders to correct or modify sentences, orders imposing, modifying, or revoking probation or community control, orders assessing costs, fees, fines, or restitution against the defendant, and any other documents relating to sentencing; e. any motion to withdraw plea and order thereon; and f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk of the lower tribunal, and designation to the approved court reporter or approved transcriptionist.

(ii) Upon good cause shown, the court, or the lower tribunal before the record is electronically transmitted, may expand the record.

(3) Commencement. The defendant must file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence. Copies must be served on the state attorney and attorney general.

(4) Cross-Appeal. A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion under Florida Rule of Criminal Procedure 3.800(b)(2). Review of cross-appeals before trial is limited to related issues resolved in the same order being appealed.

(c) Appeals by the State.

(1) Appeals Permitted. The state may appeal an order:

(A) dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release;

(B) suppressing before trial confessions, admissions, or evidence obtained by search and seizure;

(C) granting a new trial;

(D) arresting judgment;

(E) granting a motion for judgment of acquittal after a jury verdict;

(F) discharging a defendant under Florida Rule of Criminal Procedure 3.191;

(G) discharging a prisoner on habeas corpus;

(H) finding a defendant incompetent or insane;

(I) finding a defendant intellectually disabled under Florida Rule of Criminal Procedure 3.203;

(J) granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853;

(K) ruling on a question of law if a convicted defendant appeals the judgment of conviction;

(L) withholding adjudication of guilt in violation of general law;

(M) imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines;

(N) imposing a sentence outside the range recommended by the sentencing guidelines;

(O) denying restitution; or

(P) as otherwise provided by general law for final orders.

(2) Commencement. The state must file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal must be filed within 15 days of service of defendant’s notice or service of an order on a motion under Florida Rule of Criminal Procedure 3.800(b)(2). Copies must be served on the defendant and the attorney of record. An appeal by the state will stay further proceedings in the lower tribunal only by order of the lower tribunal.

(d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State.

(1) The attorney of record for a defendant will not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:

(A) a notice of appeal or cross-appeal has been filed on behalf of the defendant or the state;

(B) a statement of judicial acts to be reviewed has been filed if a transcript will require the expenditure of public funds;

(C) the defendant’s directions to the clerk of the lower tribunal have been filed, if necessary;

(D) designations to the approved court reporter or approved transcriptionist have been filed and served by counsel for appellant for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and

(E) in publicly funded defense and state appeals, when the lower tribunal has entered an order appointing the office of the public defender for the local circuit, the district office of criminal conflict and civil regional counsel, or private counsel as provided by chapter 27, Florida Statutes, that office, or attorney will remain counsel for the appeal until the record is electronically transmitted to the court. In publicly funded state appeals, defense counsel must additionally file with the court a copy of the lower tribunal’s order appointing the local public defender, the office of criminal conflict and civil regional counsel, or private counsel. In non-publicly funded defense and state appeals, retained appellate counsel must file a notice of appearance in the court, or defense counsel of record must file a motion to withdraw in the court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the court must be served on the attorney general (or state attorney in appeals to the circuit court).

(2) Orders allowing withdrawal of counsel are conditional and counsel must remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error the lower tribunal is authorized to address during the pendency of the direct appeal under Florida Rule of Criminal Procedure 3.800(b)(2).

(e) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal:

(1) at the time of sentencing; or

(2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).

(f) Record.

(1) Service. The clerk of the lower tribunal must prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal. However, the clerk of the lower tribunal must not serve the record until all proceedings designated for transcription have been transcribed by the court reporter(s) and filed in the lower tribunal. If the designated transcripts have not been filed by the date required for service of the record, the clerk of the lower tribunal must file with the court, and serve on all parties and any court reporter whose transcript has not been filed, a notice of inability to complete the record, listing the transcripts not yet received. In cases in which the transcripts are filed after a notice of inability to complete the record, the clerk of the lower tribunal must prepare and file the record within 20 days of receipt of the transcripts. An order granting an extension to the court reporter to transcribe designated proceedings will toll the time for the clerk of the lower tribunal to serve this notice or the record on appeal.

(2) Transcripts.

(A) If a defendant’s designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel, if possible) must serve, within 10 days of filing the notice, a statement of judicial acts to be reviewed, and a designation to the approved court reporter or approved transcriptionist requiring preparation of only so much of the proceedings as fairly supports the issue raised.

(B) Either party may file motions in the lower tribunal to reduce or expand the transcripts.

(C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties must serve the designation on the approved court reporter or approved transcriptionist to file with the clerk of the lower tribunal the transcripts for the court and sufficient paper copies for all parties exempt from service by e-mail as set forth in Florida Rule of General Practice and Judicial Administration 2.516.

(D) Nonindigent defendants represented by counsel may serve the designation on the approved court reporter or approved transcriptionist to prepare the transcripts. Counsel adopting this procedure must, within 5 days of receipt of the transcripts from the approved court reporter or approved transcriptionist, file the transcripts. Counsel must serve notice of the use of this procedure on the attorney general and the clerk of the lower tribunal. Counsel must attach a certificate to each transcript certifying that it is accurate and complete. When this procedure is used, the clerk of the lower tribunal on conclusion of the appeal must retain the transcript(s) for use as needed by the state in any collateral proceedings and must not dispose of the transcripts without the consent of the attorney general.

(E) In state appeals, the state must serve a designation on the approved court reporter or approved transcriptionist to prepare and file with the clerk of the lower tribunal the transcripts and sufficient copies for all parties exempt from service by e-mail as set forth in Florida Rule of General Practice and Judicial Administration 2.516. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule.

(F) The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary transcripts.

(3) Retention of Documents. Unless otherwise ordered by the court, the clerk of the lower tribunal must retain any original documents.

(4) Service of Copies. The clerk of the lower tribunal must serve copies of the record to the court, attorney general, and all counsel appointed to represent indigent defendants on appeal. The clerk of the lower tribunal must simultaneously serve copies of the index to all nonindigent defendants and, on their request, copies of the record or portions thereof at the cost prescribed by law.

(5) Return of Record. Except in death penalty cases, the court must return to the lower tribunal, after final disposition of the appeal, any portions of the appellate record that were not electronically filed.

(6) Supplemental Record for Motion to Correct Sentencing Error Under Florida Rule of Criminal Procedure 3.800(b)(2).

(A) Transmission.

(i) The clerk of the lower tribunal must automatically supplement the appellate record with any motion under Florida Rule of Criminal Procedure 3.800(b)(2), any response, any resulting order, and any amended sentence. If a motion for rehearing is filed, the supplement must also include the motion for rehearing, any response, and any resulting order.

(ii) The clerk of the lower tribunal must electronically transmit the supplement to the appellate court within 20 days after the filing of the order disposing of the rule 3.800(b)(2) motion, unless a motion for rehearing is filed. If an order is not filed within 60 days after the filing of the rule 3.800(b)(2) motion, and no motion for rehearing is filed, this 20-day period will run from the expiration of the 60-day period, and the clerk of the lower tribunal must include a statement in the supplement that no order on the rule 3.800(b)(2) motion was timely filed.

(iii) If a motion for rehearing is filed, the clerk of the lower tribunal must electronically transmit the supplement to the court within 5 days after the filing of the order disposing of the motion for rehearing. If an order disposing of the motion for rehearing is not filed within 40 days after the date of the order for which rehearing is sought, this 5-day period will run from the expiration of the 40-day period, and the clerk of the lower tribunal must include a statement in the supplement that no order on the motion for rehearing was timely filed.

(B) Transcripts. If any appellate counsel determines that a transcript of a proceeding relating to such a motion is required to review the sentencing issue, appellate counsel must, within 5 days from the transmission of the supplement described in subdivision (f)(6)(A)(ii), designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. Appellate counsel must file the designation with the court and serve it on the approved court reporter or approved transcriptionist. The procedure for this supplementation must be in accordance with this subdivision, except that counsel is not required to file a revised statement of judicial acts to be reviewed, the approved court reporter or approved transcriptionist must deliver the transcript within 15 days, and the clerk of the lower tribunal must supplement the record with the transcript within 5 days of its receipt.

(g) Briefs.

(1) Brief on the Merits. Initial briefs, including those filed under subdivision (g)(2)(A), must be served within 30 days of transmission of the record or designation of appointed counsel, whichever is later. Additional briefs must 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 must independently review the record to discover any arguable issues apparent on the face of the record. On the discovery of an arguable issue, other than an unpreserved sentencing, disposition, or commitment order error, the court must 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 under 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) Post-Trial Release.

(1) Appeal by Defendant. The lower tribunal may hear a motion for post-trial release pending appeal before or after a notice of appeal is filed; provided that the defendant may not be released from custody until the notice of appeal is filed.

(2) Appeal by State. An incarcerated defendant charged with a bailable offense must on motion be released on the defendant’s own recognizance pending an appeal by the state, unless the lower tribunal for good cause stated in an order determines otherwise.

(3) Denial of Post-Trial Release. All orders denying post-trial release must set forth the factual basis on which the decision was made and the reasons therefor.

(4) Review. Review of an order relating to post-trial release will be by the court on motion.

(i) Scope of Review. The court must review all rulings and orders appearing in the record necessary to pass on the grounds of an appeal. In the interest of justice, the court may grant any relief to which any party is entitled.