As the clock approached midnight on December 31, 2020, Floridians looked with hope to a new beginning, leaving behind a turbulent, chaotic era: circuit court appellate review over (most) county court orders. Before 2021, the district courts of appeal (DCAs) only reviewed county court decisions if the county court certified a question of great public importance to the DCA. (1) Otherwise, a case had to first pass through a circuit court sitting in its appellate capacity, and the losing party would have to file a certiorari petition to the DCA.
Circuit courts were simply not equipped for a high volume of appeals. Appeals languished on busy trial judge desks, with briefs waiting to be read between case management conferences, drafting and signing orders and judgments, discovery and summary judgment motion hearings, the uniform motion calendar, during trial (recesses only), or worse--during Little League games, vacations, late night television, or any other free moment.
Most circuit judges do not have their own designated law clerks or staff attorneys, let alone two (or sometimes three) (2) like the DCA judges. Each of the 20 circuits had their own approach to handling county court appeals. Some, like the Sixth Judicial Circuit, published circuit court appellate decisions on their website, and still do. (3) But this was the exception, not the rule, and circuit court opinions were difficult to track down statewide. Others, like the 13th Circuit, created an appellate division with random panel configurations. (4) As these pages have documented, intra-circuit conflicts were not uncommon and there was no en banc procedure to resolve the conflicts. (5)
The dark ages are over. By the time this article is published, there will have been three full years of direct DCA review of county courts. This article discusses the highlights from the 700-plus DCA opinions in county court cases published since 2021.
How Did We Get Here?
The legislature amended F.S. [section]26.012, effective January 1, 2021. (6) The statute sets forth the circuit court's jurisdiction. Previously, the statute said, "Circuit courts shall have jurisdiction of appeals from county courts" with certain exceptions that are no longer relevant. With the change, the circuit courts' only appellate jurisdiction is "of appeals from final administrative orders of local government code enforcement boards and of reviews and appeals as otherwise expressly provided by law." (7) There was no statutory change expressly redirecting county court appeals. So where do county court appeals go? By constitutional default, the DCAs have jurisdiction over most county court appeals now that the circuit court's jurisdiction has been amended. (8)
Moving Day
When 2021 began, the circuit courts packed up their appellate files and shipped them off to the nearest DCA. The transfer had a particular impact in some cases. In Mallory v. Brinckerhoff, 312 So. 3d 944, 946 (Fla. 4th DCA 2021), the transfer from circuit court was outcome-determinative and saved the appeal from dismissal. Circuit courts did not have jurisdiction to hear the nonflnal appeal in the case, but because the case was transferred to the DCA before a decision, the DCA determined it had jurisdiction and ruled. (9)
The circuits were, perhaps, over eager to purge their appellate dockets. At least two cases were improperly transferred because the circuit court still had appellate jurisdiction over orders from certain local governmental hearing officers (10) and civil traffic infractions. The DCAs returned those cases to circuit court.
Two cases were at the DCA on second-tier certiorari from a circuit court appellate panel when the statute changed. In both, the courts quashed the circuit court appellate decision and remanded straight to the county court, not the circuit court. (11) In another case, the circuit court appellate panel had ruled, but there was a pending motion for rehearing when the case was transferred to the DCA. The DCA granted rehearing, vacated the circuit court's decision, and remanded to the county court. (12)
County Criminal on Appeal
On the criminal side, county courts have jurisdiction over "misdemeanor cases not cognizable by the circuit courts." (13) By far, driving under the influence (DUI) was the most frequent crime appearing in the opinions. The DUI cases present a potpourri of constitutional and procedural issues raised by both defendants and the state.
DUI defendants raise issues like double jeopardy, (14) Miranda violations, (15) confrontation clause challenges to toxicology reports, (16) prosecutorial golden rule violations, (17) the right to present exculpatory evidence under the Sixth Amendment, (18) trial judge disqualification, (19) Williams rule violations, (20) and a failure "to consider less extreme sanctions than the exclusion of defense witnesses" for a discovery violation. (21)
Though rarer, the state has also filed appeals in DUI cases. For its part, the state successfully challenged a trial court order transferring a defendant to veterans court over the state's objection, which the Fourth DCA held violated separation of powers and the veterans court statutes. (22) The state prevailed against a trial court's ruling that a defendant's emergency room records were protected by the right to privacy enshrined in Fla. Const, art. I, [section]23. (23)
The non-DUI misdemeanors on appeal include criminal mischief, (24) possessing undersized snapper, (25) resisting arrest without violence, (26) obstructing an officer without violence (by talking too loudly on the phone on the other side of a door while police interviewed a witness; the court reversed), (27) simple battery, (28) leaving the scene of a crash, (29) trespassing in a school zone, (30) violation of stalking injunction, (31) petit theft, (32) driving while license suspended, (33) driving a motorized bicycle without a license (or, as the citation described it, a "black Huffy" with a gasoline engine), (34) a defense attorney held in contempt of court (contempt reversed because the judge had counsel handcuffed and detained before holding a contempt hearing), (35) and a Chinese tourist arrested for resisting without violence after allegedly trespassing, loitering, and prowling at Mar-A-Lago outside the police's presence. (36)
Some cases touch on evidentiary rules. For instance, the undersized-snapper case involved the best evidence rule. (37) The defendant argued that officer testimony about the size of the fish was insufficient to establish guilt, and "that either the physical snapper or photographs of the snapper be admitted into evidence." (38) The Third District rejected the argument and affirmed the conviction, even though the evidence at trial was testimonial only.
Other cases examine police conduct in misdemeanor investigations. In the Mar-A-Lago case, Lu Jing v. State, 316 So. 3d 724 (Fla. 4th DCA 2021), a tourist walked through the open gate and took photographs of then-President Trump's private resort. She left when waved away by a security guard. Later, police caught up with her, handcuffed her, and took her into custody. Because the trespass and loitering and prowling offenses did not occur in the officer's presence, the Fourth DCA held that the police did not have the right to make a warrantless arrest under F.S. [section]901.15(1), so "[a]ppellant was entitled to resist being handcuffed in the non-violent way she did." (39)
Judge Artau dissented and would have found that the statute authorized the officer to "temporarily detain" the tourist "for the purpose of ascertaining her identity and investigating the circumstances surrounding her presence on the property of Mar-A-Lago after being advised to leave and warned not to reenter the property." (40) Artau would have held that probable cause for resisting without violence attached when "the defendant resisted the officer's lawful instruction to walk over to his patrol car to complete his investigation." (41) Thus, a simple resisting-without-violence charge resulted in two opinions and 13 pages in the Southern Reporter.
Some misdemeanor cases have even broader implications. Corbett v. State, 348 So. 3d 645 (Fla. 5th DCA 2022), was a simple battery case involving the Stand Your Ground (SYG) immunity statute. (42) The case presented an important appellate concern with consequences beyond simple battery cases--does the defendant challenge the denial of an SYG motion to dismiss through a writ of prohibition (which has no clear deadline for filing) (43) or certiorari (which must be filed within 30 days of rendition)? (44) The court's answer: it depends.
The court distinguished challenges to the procedure in ruling on SYG immunity and challenges to the merits of the SYG ruling. Procedural only challenges, according to the court, are reviewable by certiorari, while the merits are to be reviewed by prohibition. In Corbett, the court characterized the appellant's arguments as procedural--that the lower court applied the wrong burden of proof, the wrong standard of review, and incorrectly ruled that the appellant failed to "establish a prima facie claim of immunity." (45) The court agreed that the trial court erred but dismissed the petition as an untimely petition for writ of certiorari.
Though the misdemeanor cases involve lower stakes than their felony counterparts, the county courts are making their mark on the state's criminal and constitutional jurisprudence.
Small Claims Appeals
Small claims court comprises a significant portion of county court dockets and consists of expedited rules applicable to civil actions that do not exceed $8,000 in controversy. (46) Other than PIP (47) cases, most small claims cases did not reach the DCA level before the circuit court's appellate jurisdiction changed in 2021. In most PIP cases, the parties invoke the Florida Rules of Civil Procedure, rather than follow the Small Claims Rules. (48)
The easel aw on the Small Claims Rules was scant...
