Page 27 - Miami Vol 7 No 1

Appellate Law
Review on Motion: An Appeal Within an Appeal
BTy Robin Bresky, Esq., and Randall Burks, Esq.
he Florida Rules of Appellate Orders of the Lower Tribunal Regarding Procedure provide for appellate Appellate Fees. A party seeking an award review of certain kinds of lower of appellate attorney’s fees must le a timely tribunal orders “by motion” or motion in the appellate court. A grant of
“on motion.” e party seeking review of entitlement may be conditional or uncondi-
such orders does not initiate a new appeal because the motion and appendix are led on the docket of an existing appeal that is pending or was recently concluded. Some of those situations will be summarized here.
Post-Trial Release in Criminal Appeals.
In appeals by a criminal defendant, the trial court may hear motions for post-trial release pending appeal. In appeals by the state, the trial court may hear motions by certain in- carcerated defendants seeking to be released on their own recognizance. Review of orders relating to post-trial release pending appeal must be by the appellate court on motion. Rule 9.140(h)(4).
Orders Regarding Stay Under Rule 9.310. In general, a party seeking to stay a nal or non- nal order pending appellate re- view must le a motion in the lower tribunal under Rule 9.310. To seek review of orders on motions entered by lower tribunals under that rule, the aggrieved party must le a mo- tion with the appellate court. Rule 9.310(f).
Stay of Administrative Action Under the APA. In general, a party seeking to stay admin- istrative action under the Administrative Pro- cedure Act (APA) pending appellate review, will le a motion for stay with the lower tribu- nal. Review of the lower tribunal’s order on the motion for stay must be by a motion led with the appellate court. Rule 9.190(e)(2)(A).
Stay or Supersedeas of Other Admin- istrative Action. A party seeking to stay administrative action not governed by the APA must le a motion in the lower tribunal, which may grant, modify, or deny a stay. Re- view of those orders is by motion led with the appellate court. Rule 9.190(e)(3).
Certain Orders in Family Law Matters.
e trial court retains jurisdiction to enter and enforce orders speci ed in Rule 9.600(c), such as certain support and attorney’s fees matters, in family law cases during the pen- dency of an appeal. Review of those orders is by motion led in the appellate court. Rule 9.600(c)(3).
tional. e appellate court generally directs the lower tribunal to determine the reason- able amount of fees (and, if entitlement is conditional, to make determinations of the stated conditions). Review of orders ren- dered by the lower tribunal under Rule 9.400 is by motion led in the appellate court. Rule 9.400(c).
Workers’ Compensation Appellate Fees.
If the appellate court determines that a party in a workers’ compensation appeal should receive an award of appellate attorney’s fees, the lower tribunal (judge of compensation claims) will have jurisdiction to determine the amount a er the mandate is issued. Re- view of the lower tribunal’s order on appel- late fees and costs is by motion led in the appellate court. Rule 9.180(i)(4).
Attorney’s Fees in Administrative Ap- peals. If the appellate court decides to award attorney’s fees in an administrative law ap- peal, the court may remand the matter to the lower tribunal (generally, the agency) or to the administrative law judge for determina- tion of the amount, or it may refer the matter to a special magistrate. Review of a result- ing order is by motion led in the appellate court, or objections to the report of a special magistrate are led in the appellate court. Rule 9.190(d)(3).
Orders Regarding Indigent Status. “A party who has the right to seek review by appeal without payment of costs shall ... le a signed application for determination of indigent status with the clerk of the lower tribunal. ... e clerk of the lower tribunal’s reasons for denying the application shall be stated in writing and are reviewable by the lower tribunal. Review of decisions by the lower tribunal shall be by motion led in the [appellate] court.” Rule 9.430(a).
Indigency in Workers’ Compensation Appeals. An appellant in a workers’ com- pensation case who is unable to pay the ling fee must le in the lower tribunal, together with the notice of appeal, a veri ed petition
or motion to be relieved of paying ling fees due to indigency. If the judge of compensa- tion claims enters an order denying relief, the appellant must deposit the ling fee with the lower tribunal unless timely review is sought by motion led in the appellate court. Rule 9.180(g)(2)(E).
It is important to ascertain and meet any deadline stated in the individual rules for review by motion. As this summary is not exhaustive and the rules can change, it is important to check the latest version of the rules or consult an appellate lawyer before seeking review of any order.
Robin Bresky of The Law Of ces of Robin Bresky in Boca Raton is an appellate attorney who handles civil and criminal appeals and litigation support matters throughout Florida. Robin is a member of The Florida Bar Board of Governors. She is the president of the Na- tional Conference of Women’s Bar Associa- tions and is a past president of the Florida As- sociation for Women Lawyers. Randall Burks is an experienced appellate attorney with the rm. You can visit www.BreskyAppellate.com for more information.
Robin Bresky, Esq.
Randall Burks, Esq.
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