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Appellate Law
Appellate Jurisdiction & Scope of Review
By Robin Bresky, Esq. & Randall Burks, Esq.
Adistrict court of appeal can exer- cise either appellate jurisdiction or original jurisdiction.  e scope of review can be either broad or narrow, depending on the type of order reviewed and the kind of jurisdiction exer- cised.
Courts have appellate jurisdiction to re- view an order or judgment of a lower tribu- nal where a constitutional provision, statute or rule provides authority to consider ap- peals from that type of order and that kind of lower tribunal. Appellate review primari- ly involves  nal orders or judgments, where the court can conduct a plenary review that is broad in scope. “ e court may review any ruling or matter occurring before  l- ing of the notice [of appeal]. Multiple  nal orders may be reviewed by a single notice,
if the notice is timely  led as to each such order.” Fla. R. App. P. Rule 9.110(h). Juris- dictional, procedural and substantive errors can be corrected on appeal and the order or judgment may be modi ed, reversed, re- manded with directions or a rmed.
Parties in Florida have a constitutional right to seek review of  nal orders and  - nal judgments. Art. V, §
4(b)(l), Fla. Const.  us,
 nal appeals are taken “as
of right” or “as a matter of
right” as long as the notice
of appeal is timely  led
within the jurisdictional
limit of 30 days a er the
rendition of the order or
judgment. Generally, “the
test employed by the ap-
pellate court to determine
 nality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to e ectuate a termination of the cause as between the parties directly a ected,” or the order “adjudicates a distinct and sever- able cause of action.” S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99-100 (Fla. 1974).
Certain non- nal (interlocutory) orders can also be appealed as a matter of right un- der Article V, § 4(b)(1) of the Florida Con- stitution and Rule 9.130 of the Florida Rules of Appellate Procedure. Some common ex- amples of appealable non- nal orders under that rule include those concerning venue, jurisdiction or forum non conveniens. One of the newest additions to the list is a family law order determining that a marital agree- ment is invalid in its entirety. Fla. R. App. P. Rule 9.130(a)(3)(C)(iii)(c). “Multiple non-  nal orders that are listed in rule 9.130(a) (3) may be reviewed by a single notice if the notice is timely  led as to each such order.” Fla. R. App. P. Rule 9.130(i).
If the non- nal order is not on the list in Rule 9.130, the appellate court may still be able to review it by exercising its original jurisdiction under Article V, § 4(b)(3) of the Florida Constitution and Rule 9.030(b) (3) to consider a petition for a common law writ such as a writ of certiorari under Rule 9.100.  e scope of review in a certiorari proceeding is limited to deciding whether the lower tribunal departed from the essen- tial requirements of law and if so, the order
can be quashed. Before the court can con- sider that question on the merits, the peti- tioner must cross the jurisdictional thresh- old by showing that for the remainder of the trial proceedings, the order would result in a material injury that cannot be corrected on post-judgment plenary appeal.
“ us, just as an appellant must establish
"It is important to determine what type of review to seek and which remedies to request."
that a non nal order falls within one of the authorized categories in Florida Rule of Ap- pellate Procedure 9.130 before this court has the power to review the merits of the non nal order by appeal, a petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to deter- mine whether the order departs from the essential requirements of the law.” Parkway Bank v. Fort Myers Armature Work, 658 So. 2d 646, 649 (Fla. 2d DCA 1995).
“Having determined the nature of the or- der under consideration we next proceed to ascertain the appropriate method of ob- taining review as well as the scope of review available.” De Groot v. She eld, 95 So. 2d 912, 915 (Fla. 1957).  e scope of review is distinct from the standard of review, which determines the level of deference given to the lower tribunal’s rulings,  ndings or conclusions when reviewed on appeal.  e scope of review relates to matters such as which judicial acts the appellate court can examine and what remedies it can apply. Whereas the scope of review in appeals is broad and many types of error can be cor- rected, the scope of review in certiorari proceedings is narrowly focused on issues of jurisdiction and the legality or regular- ity of the procedure, to determine whether the lower court exceeded its jurisdiction or departed from the essential requirements of the law. It is important to determine what type of review to seek and which remedies to request.
Robin Bresky of The Law Of ces of Robin Bresky, in Boca Raton, is an appellate attorney who practices in civil and criminal appeals and litigation support matters throughout Florida. Robin is very active in the legal community and is the immediate past-president of the Florida Association for Women Lawyers. Ran- dall Burks, an experienced appellate attorney, is a senior associate with the  rm. For more information, you can visit www.BreskyAppellate.com or call (561) 994-6273
Randall Burks
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