Criminal Appeals in Florida and Federal Courts (Eleventh Circuit)

The criminal trial attorneys at Kenneth Padowitz, P.A. have years of experience in handling criminal appeals and other appellate work in Florida state courts, as well as in other state and Federal courts throughout the United States. Criminal appeals are a specialized and complex area of law – one of a few areas in law that is difficult to “teach” in a typical classroom setting or simply through reading a book/treatise – instead requiring real-world experience and practice, for a lawyer to truly learn and master.

An appeal involves asking a higher court to review what happened in a lower court to determine if legal errors occurred that affected the outcome. This is not a new trial or an opportunity to present new evidence – it is a focused legal review of the record from the original proceedings. Both Florida state courts and the Federal courts (including the U.S. Court of Appeals for the Eleventh Circuit, which covers Florida) have specific rules and procedures for criminal appeals. Understanding the types of appeals available – from standard direct appeals after a final judgment, to interlocutory appeals of certain pre-trial rulings, to extraordinary writs like certiorari, mandamus, and prohibition – is crucial for anyone seeking to challenge a criminal court decision.

Direct Appeals After Final Judgment

A direct appeal is the typical appeal taken after a final judgment in a criminal case – for example, after a conviction and sentencing in a trial court. In a direct appeal, the appellant (usually the defendant who was convicted) asks an appellate court to review the trial court’s decision for legal errors. In Florida state cases, this appeal as of right is taken to one of the District Courts of Appeal, whereas in federal cases in Florida, the appeal goes to the Eleventh Circuit Court of Appeals. Below are key points about direct criminal appeals in these jurisdictions:

• Right to Appeal and Jurisdiction: In Florida, the state constitution guarantees a right to appeal final judgments in criminal cases to the District Courts of Appeal. Similarly, a person convicted in U.S. District Court (federal court) has a right to appeal to the federal circuit court (the Eleventh Circuit for Florida-based cases). These courts review the trial record to decide if prejudicial legal errors occurred. If the appellate court finds serious errors that affected the outcome, it can reverse the conviction or order a new trial; otherwise, it will affirm the conviction (uphold the result). Not every error will result in a reversal – errors must be harmful (not harmless) to warrant relief.

• Deadlines and Procedure: Appellate deadlines are strict. In Florida, a Notice of Appeal generally must be filed within 30 days of the trial court’s final judgment or sentence. The notice is filed in the trial court, which then transfers jurisdiction of the case to the appellate court. In federal criminal cases, the timeline is even shorter – a defendant’s notice of appeal must be filed within 14 days of the judgment, see Rule 4. Appeal as of Right – When Taken) (the government, if it has a right to appeal, has 30 days). Missing these deadlines usually means losing the right to appeal (there are more equitable-type exceptions to these appellate jurisdictional timeless when it comes to federal appeals that are not available in Florida courts – and this is actually one of the rare instances that Florida law/rules are essentially more strict/less protective than Federal law/rules). Once the appeal is commenced, the lower court record and transcripts are prepared, and both sides submit written briefs (the burden to produce/provide a sufficient transcript/record on appeal is on the appellant/petitioning party). The appellate court may also hear oral argument in its discretion (usually, upon request with good reason), where lawyers for both sides are permitted to present/argue their positions in person (in addition to their written appellate briefs). After reviewing the case, the appellate court issues a written decision (which could be an opinion or a shorter decision – i.e., “PCA”) resolving the appeal.

• Scope of Review: Direct appeals are limited to the trial record. The appellate court does not hear new evidence or retry the case. It considers only legal arguments about errors in the trial proceedings (e.g. improper rulings on evidence, incorrect jury instructions, insufficient evidence as a matter of law, prosecutorial misconduct, sentencing errors, etc.). The appellate judges give deference to the trial court’s factual findings (but could potentially be disregarded if not supported by substantial, competent evidence) and to the jury’s verdict on questions of fact – they will not second-guess the jury’s decision on which witnesses to believe (“credibility”) under most circumstances. However, legal decisions by the judge (such as interpretations of law or procedural rulings) are reviewed more closely, often de novo (anew) without deference. Some issues, like discretionary calls by the trial judge, are reviewed under a more deferential standard (asking if the trial court abused its discretion). An important aspect of appellate review is the preservation of errors: generally, the defense must have raised a timely, specific objection at trial (or hearing/time of error) to an issue in order for it to be considered on appeal. If no objection was made and the issue was not preserved, the appellate court usually will not review it unless it rises to the level of fundamental error (an error that is so serious/egregious that it completely undermined the fairness of the trial). This is why good criminal defense trial lawyers are trained (or must learn) to object and make a proper record – failure to do so can forfeit important appellate rights for their clients (regardless of whether or not trial counsel intends on personally handling any future appeal or not).

• Appeals After Guilty Pleas: If a defendant entered a guilty or no contest plea in the trial court, the right to a direct appeal is very limited. In both Florida and federal practice, a plea usually waives the right to appeal most issues. Florida law, for example, provides that a defendant who pleads guilty or nolo contendere without reserving a particular dispositive issue for appeal can only appeal a few specific things: the trial court’s subject-matter jurisdiction, the legality of the sentence, an issue raised by a properly preserved motion to withdraw the plea, or a violation of the plea agreement, among others (e.g., there exist paths to “appeal” to federal court, although these are case-specific, typically require Constitutional-type issues, are rarely utilized, and are even further rarely actually accepted by the federal court). In other words, by pleading guilty/no contest you generally give up the right to appeal any claim of trial error (since there was no trial), except in these narrow circumstances. A defendant who wishes to preserve an issue (for example, the denial of a motion to suppress evidence, or a motion to dismiss) must usually enter a conditional plea with an express reservation of the right to appeal that specific issue, and the reservation must be accepted by the court and be on a dispositive issue (meaning if the defendant wins on appeal, it would be case-ending). In federal court, plea agreements often include appeal waivers as well, where defendants waive some or all of their rights to appeal as part of the deal. The bottom line is that appeals after a plea exist, but they are limited and/or face special hurdles.

• Role of the Appellee: In a criminal appeal, the opposing party is the appellee. If the defendant is appealing, the appellee is the government (the prosecution). In a Florida state appeal, that is the State Attorney (or Florida Attorney General’s office for appeals), and in a federal appeal, it is the U.S. Attorney’s Office or U.S. Department of Justice. Their goal is to respond to the defendant’s claims and argue that the trial was fair, or the alleged error was no error at all, and the outcome should be upheld. It’s worth noting that the prosecution itself has additional rights to appeal certain decisions not afforded to defendants, which we address in the context of interlocutory appeals below – but the prosecution cannot appeal a not-guilty verdict (acquittal) after a jury trial due to constitutional double jeopardy protection. Once a defendant is acquitted, that decision is final.

• Further Appeals (Higher Courts): The District Court of Appeal’s decision in a Florida case is typically the end of the road for the direct appeal, but there are exceptions. In some cases, a further appeal to the Florida Supreme Court is possible, but only if certain criteria are met – for example, if the DCA’s decision expressly conflicts with another appellate decision or if the case involves a question of great public importance or constitutional questions certified by the DCA. The Florida Supreme Court’s review in criminal cases is mostly discretionary (except in death penalty cases or certain other limited scenarios). On the federal side, after the Eleventh Circuit decides an appeal, a defendant can petition for a writ of certiorari to the U.S. Supreme Court. The U.S. Supreme Court accepts very few cases, only those that typically present novel or nationwide important legal questions, or involve issues that the Court wants (although judges typically do not outright admit to premeditated “legislating” from the bench, in practice, it does happen – and both political parties are equally guilty of that) to “interpret” (i.e. change/modify the law). Thus, for most cases, the intermediate appellate court is effectively the court of last resort on direct appeal. The higher up the chain one wants to go, the more creative, persuasive, and legally/constitutionally astute the appellate lawyer will likely need to be.

Summary of Direct Appeals – Key Takeaways: Direct appeals are an as-of-right review of final judgments for legal error. They must be filed quickly (within 30 days in Florida state court, and 14 days in federal court for a criminal defendant). The appellate court will not consider new evidence, only the existing trial record. Issues on appeal generally must have been preserved by proper objections or motions in the trial court, or else they are deemed waived absent fundamental error. Not every mistake warrants reversal – only errors that probably affected the outcome of the case (i.e. were not harmless) will result in a reversal of the conviction (as the saying goes: a defendant is not entitled to a perfect trial, only a fair trial). If you pled guilty, your appellate options are severely limited. Given these complexities, it is crucial to have a criminal defense lawyer who also functions as a skilled appellate lawyer, who can preserve and/or identify viable issues and present them effectively to the higher court(s).

Interlocutory Appeals (Appeals of Non-Final Orders)

While most criminal appeals happen after a case is completely over (final judgment), there are certain situations where a party can appeal before the trial or final outcome. These are called interlocutory appeals or appeals of non-final orders. They are rare in criminal cases because the legal system generally prefers to wait for a final result before appellate review (this is known as the “final judgment rule”). However, both Florida and federal law carve out some exceptions to the final judgment rule in criminal proceedings:

• State (Florida) Interlocutory Appeals: In Florida criminal cases, defendants generally cannot appeal pre-trial orders immediately (they must wait for final judgment). The primary exceptions for a defendant are situations where a pre-trial order effectively ends the case or where waiting would irreparably harm a substantial right. For example, if a trial court denied a defendant’s motion to dismiss on double jeopardy grounds (meaning the defendant argues that being tried at all violates the Double Jeopardy Clause), the defendant does not have to wait for a trial and conviction to appeal that issue – it can be challenged right away because double jeopardy is a right not to be tried in the first place. In Florida, the mechanism to do this is often a petition for writ of prohibition (an extraordinary writ discussed below – see English v. McCrary, 348 So. 2d 293 (Fla. 1977) (explaining that the writ of prohibition is an extraordinary remedy that “may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction”), to stop the trial court from proceeding. Another example is an order denying a motion to reduce bail or denying bail altogether – while not appealable by right, a defendant can seek immediate review by filing a petition for writ of habeas corpus in the Florida state appellate court (and under limited circumstances, in federal court, once reasonable efforts have failed in state court), arguing that the trial court’s ruling is unlawful and requesting release or a reasonable bond. Aside from such extraordinary avenues, Florida defendants must usually wait until the end of the case to appeal any errors.

On the other hand, the State of Florida (prosecution) has specific statutory rights to appeal certain non-final orders in criminal cases. Florida law (Section 924.07, Florida Statutes) enumerates the instances where prosecutors can take an interlocutory appeal. For example, the State may appeal an order dismissing an indictment or information, an order suppressing evidence, an order granting a new trial, an order arresting judgment (which is essentially a post-verdict dismissal), or an order granting a judgment of acquittal after a jury’s guilty verdict, among others. The State can also appeal a sentence that is illegal or below the statutory minimum in certain cases. These interlocutory or mid-case appeals by the prosecution are allowed because, for instance, if crucial evidence is suppressed or a case is dismissed before trial, the state’s case is effectively lost unless an appellate court reverses that decision. The Florida Rules of Appellate Procedure (specifically Rule 9.140) work in conjunction with the statute to lay out the procedure for these state appeals. It’s important to note that even the State is limited to one such interlocutory appeal per case (they can’t appeal multiple pre-trial orders separately in a piecemeal fashion beyond what the law permits). And critically, neither side can appeal a jury’s verdict of acquittal – the State cannot appeal a not-guilty verdict due to double jeopardy, and a defendant obviously wouldn’t appeal an acquittal since that’s a favorable outcome.

• Federal (Eleventh Circuit) Interlocutory Appeals: In the federal system, interlocutory appeals in criminal cases are also limited. By default, 28 U.S.C. § 1291 gives federal appeals courts jurisdiction only over “final decisions” of the district courts. However, there are a few exceptions. One is the “collateral order” doctrine, a narrow carve-out to the finality requirement. The U.S. Supreme Court has held, for example, that a pre-trial order denying a motion to dismiss on double jeopardy grounds is immediately appealable as a collateral order (see g., Abney v. United States, 431 U.S. 651 (1977)). The logic is that the Double Jeopardy Clause not only protects against double punishment, but also against being tried twice; if a defendant is forced to go through an entire trial before being able to appeal a double jeopardy claim, the right would be irreparably lost. Thus, in federal court a defendant can take an immediate appeal if a motion to dismiss on double jeopardy was denied – the Eleventh Circuit would review that interlocutory. (Similarly, orders denying certain immunity claims, like claims of immunity under the Speech or Debate Clause or qualified immunity in some contexts, have been deemed collateral orders in other types of cases, but those are uncommon in routine criminal proceedings).

The federal prosecution (United States) also has specific statutory authority to pursue interlocutory appeals in criminal cases under 18 U.S.C. § 3731. This statute is quite broad in allowing government appeals, except where prohibited by double jeopardy. For instance, the government may appeal from an order dismissing an indictment or count, an order suppressing or excluding evidence (so long as the appeal is before the defendant is put in jeopardy at trial and the U.S. Attorney certifies the evidence is substantial proof of a material fact), or an order granting a new trial after a verdict. The government can also appeal certain bond (release) orders. Notably, § 3731 explicitly says it shall be liberally construed to allow government appeals where permitted, but again, the government cannot appeal if double jeopardy bars further prosecution. Timing is crucial: the prosecution’s appeal under this statute must be taken within 30 days of the order. In practice, federal prosecutors use interlocutory appeals to challenge significant pre-trial rulings like suppression of key evidence or the dismissal of charges, which could gut their case if not reversed. Just like in state court, a federal defendant cannot appeal routine pre-trial rulings (like denial of a motion to suppress, etc.) immediately – the defendant’s remedy is usually to go through the trial and, if convicted, raise the issue on the direct appeal. Only certain extraordinary claims (like double jeopardy) or rights explicitly provided by statute (in very limited instances) allow a defendant to interlocutorily appeal.

• Standard for Reversal in Interlocutory Appeals: If an interlocutory appeal is permitted and heard, the appellate court applies the appropriate standard of review to the issue just as it would on a direct appeal. For example, a legal question (such as the interpretation of a constitutional right or statute underlying a dismissal or suppression) is reviewed de novo, whereas a trial court’s factual determinations (like what happened during a suppression hearing) might be reviewed for clear error (not supported by substantial/competent evidence in the record). The appellate court will generally aim to decide the issue quickly because interlocutory appeals generally pause the lower court proceedings. Sometimes the appeal will result in the case being allowed to proceed (if the appellate court sides with the trial court) or being altered (if the appellate court reverses the trial court’s decision, e.g. reinstating charges that were dismissed or allowing evidence that was suppressed).

Why Interlocutory Appeals Matter: These mid-case appeals are important safety valves. For defendants, though rare, they prevent certain fundamental rights from being irretrievably lost (nobody should endure a full trial if the Constitution says they should not be tried at all – and a good argument for why Florida’s Legislature and/or Florida’s Supreme Court should reconsider the current state of the law, and allow criminal defendants to immediately appeal a denial of SYG immunity at the trial level – rather than be limited to an entirely discretionary “extraordinary writ”). For the prosecution, they provide a check against critical legal rulings that might otherwise terminate a case or significantly weaken it. However, because they interrupt the normal flow of a case and can cause delay, courts and rules strictly limit interlocutory appeals. Most issues that arise before or during trial (e.g. most evidentiary rulings, motions in limine, etc.) cannot be separately appealed at that time and must wait for a possible appeal after final judgment. Criminal attorneys must know these boundaries well – part of being an effective criminal appellate attorney is recognizing when an interlocutory appeal or immediate remedy is available and when the client must instead wait/preserve the issue for a later appeal.

Extraordinary Writs: Certiorari, Mandamus, Prohibition (and More)

Besides direct appeals and the few interlocutory appeals allowed, there is another avenue for obtaining appellate review in criminal cases: extraordinary writ petitions. Writs are “ancient” common-law remedies that can be issued at the discretion of appellate courts in exceptional circumstances. In Florida, the District Courts of Appeal (and the Florida Supreme Court) have constitutional power to issue several kinds of writs – including habeas corpus, certiorari, mandamus, prohibition, and quo warranto – as part of their jurisdiction. In the federal system, the All Writs Act (28 U.S.C. § 1651) gives federal appellate courts (and the Supreme Court) authority to issue writs like mandamus or prohibition in aid of their jurisdiction. Below we discuss the most pertinent writs in the criminal context and how they apply:

• Writ of Certiorari (Common-Law Certiorari in Florida): In Florida state practice, a petition for writ of certiorari is a mechanism to seek review of a non-final order of a lower court when no direct appeal is available and waiting for a final judgment would result in material harm. It is often simply called “cert” (not to be confused with the certiorari petition to the U.S. Supreme Court, which is a different context). Certiorari in the District Courts of Appeal is discretionary and limited. The petitioner (usually a party aggrieved by a trial court’s interim ruling) must show (1) that the trial court’s order represents a departure from the essential requirements of law (in plain terms, a clear error violating an established legal principle), and (2) that this error will cause material injury throughout the remainder of the proceedings that cannot be corrected on direct appeal later. This two-prong test means certiorari is reserved for serious errors that would effectively leave the petitioner with no adequate remedy if not fixed immediately. A classic example in both civil and criminal cases is a discovery order that would force disclosure of privileged information (the “cat out of the bag” scenario) – once privileged confidential information is handed over, you can’t undo it later, so an appellate court might grant certiorari to quash (undo) the trial court’s erroneous order before irreparable harm is done. In criminal cases, a defendant might seek certiorari if, say, a trial court ordered production of defense attorney work-product or refused to enforce a statutory or constitutional right in a way that wouldn’t be remediable after conviction. However, certiorari cannot be used as a second appeal or a substitute for an appeal. If the issue can be addressed in a normal appeal after final judgment, the appellate court will not use certiorari to intervene early. Likewise, mere legal error is not enough – it must be a gross error or violation of clearly established law that amounts to a miscarriage of justice. Certiorari is one of the most commonly invoked writs in Florida’s appellate courts for non-final review, but is also commonly rejected (“denied” without much explanation) as it remains difficult to obtain because of the stringent standards (and because it is completely discretionary with the Appellate Court). The Eleventh Circuit (and federal courts generally) have a similar concept in the form of mandamus (discussed below) for reviewing orders that are not otherwise appealable; there isn’t a procedure called “certiorari” in federal circuit courts (comparable to what we have in Florida courts) aside from the certiorari to the Supreme Court. Instead, federal litigants would petition for mandamus relief from the circuit court in extraordinary situations.

• Writ of Mandamus: Mandamus is Latin for “we command,” and a writ of mandamus is an order from a higher court to a government official, lower court, or agency directing them to perform a certain act which is required by law as a duty. In essence, mandamus compels the performance of a clear, ministerial duty when an official has failed or refused to act. In Florida, as noted, the Constitution explicitly recognizes mandamus as a remedy appellate courts may grant. To obtain a writ of mandamus, the petitioner must demonstrate a clear legal right to the action requested and that the lower official or judge has an indisputable legal duty to perform that action, but has not done so. It cannot be used to make a discretionary call – it’s only for duties so clear that there’s no room for the official to exercise judgment. For example, if a trial judge refuses to rule on a motion that has been properly pending (say, a motion for discharge, or a motion to suppress or dismiss) – the judge has a duty to rule, and if they inexcusably refuse, mandamus could lie to order the judge to issue a decision. Or if a statute says a defendant shall be given a bond hearing in a certain circumstance and the court refuses to hold one, a mandamus petition could compel the hearing. Another scenario: if a public official is required by law to issue a certificate or permit upon satisfaction of certain conditions and the applicant has indisputably met those conditions, mandamus can force the issuance of the permit (though this example is more common in civil or administrative law, the concept is the same). In the criminal context, mandamus is less frequently seen than certiorari or prohibition, but one example is speedy trial: Florida’s speedy trial rule gives a right to be tried within a certain time, and if the time elapses and a proper motion for discharge is made but the trial court refuses to discharge the case, a defendant might seek mandamus or prohibition. Generally, mandamus is the remedy when a court fails to do something it is obligated to do. (By contrast, prohibition – next topic – is when a court is about to do something it has no authority (“jurisdiction”) to do and must be stopped.) In federal court, mandamus is likewise an extraordinary remedy. The U.S. Supreme Court has said a writ of mandamus (or prohibition) will issue to a lower federal court only if the petitioner has no other adequate means to attain the relief and the right to the writ is “clear and indisputable,” and even then the court has discretion whether to grant it. An example in federal practice might be a petition to compel a district judge to rule on a motion or to enforce an appellate mandate, or to challenge a blatant usurpation of power by the trial judge. It’s a high bar – routine pretrial rulings almost never justify mandamus relief in federal court, except in very exceptional circumstances.

• Writ of Prohibition: Prohibition is essentially the inverse of mandamus. Instead of ordering an official to do something, a writ of prohibition orders a lower court or official to stop doing something that it has no jurisdiction or legal authority to do. It “restrains the unlawful use of judicial power”. In Florida, prohibition is typically used to prevent a court from proceeding in excess of its jurisdiction, before harm is done. A prime illustration is using prohibition to stop a trial that would violate double jeopardy, or a trial that is untimely under the speedy trial rule, or where a trial court erroneously denies Stand Your Ground immunity under F.S. 776.032. For instance, if a defendant has already been once acquitted of a charge, and somehow the State attempts to try him again for the same offense, a court has no jurisdiction to do that because of double jeopardy – a petition for writ of prohibition can be filed in the appellate court to immediately halt the unlawful retrial. In fact, Florida courts have expressly recognized that prohibition is an appropriate remedy to prevent a retrial when double jeopardy applies (the court is “without jurisdiction” to try the person again). Similarly, if a defendant’s right to a speedy trial has been violated and the trial court should have discharged the case, prohibition can prevent the case from continuing. Another use of prohibition is in judge disqualification (“recusal”) –  if a trial judge who has been properly motioned for disqualification (due to bias or conflict) refuses to step aside when legally required to, a petition for prohibition can be brought to the appellate court to stop that judge from continuing to preside (because once a legally sufficient motion to disqualify is filed, the judge loses authority to act in the case except to grant the disqualification). Essentially, prohibition prevents an inferior tribunal from acting beyond its power. It is not meant to correct errors that have already been committed (one cannot use prohibition to undo something that’s happened; it’s used to bar something about to happen or continuing). Importantly, a petition for prohibition must usually be filed before the contested action occurs – timing is crucial. If the trial has already happened, one cannot seek prohibition (instead one would appeal the result). In federal court, writs of prohibition are similarly separate from the general mandamus power and serve a similar function: for example, a federal appellate court might issue a writ of prohibition to a district court that is proceeding with a trial that has been stayed or to restrain litigation that should not be in that court. But, just like mandamus, federal courts use prohibition sparingly and only when the petitioner’s right is very clear and there is no other remedy.

• Other Writs: The Florida Constitution also mentions habeas corpus and quo warranto. Habeas corpus (literally “you have the body”) in criminal cases is typically used to challenge unlawful detention or imprisonment. Pre-trial, as noted, a defendant might file a petition for writ of habeas corpus in appellate court if they believe their pretrial detention or bail is illegal or excessive (or wrongfully denied) – the appellate court can order the trial court to release the defendant or set a reasonable bond if appropriate. Post-conviction, habeas corpus is a vehicle to challenge the legality of a detention (for example, ineffective assistance of counsel or other constitutional violations), although in Florida many of those challenges are funneled into specific post-conviction motion procedures (i.e., Rule 3.850 motions) rather than habeas, and in federal court prisoners file habeas petitions under 28 U.S.C. § 2254 (for state prisoners) or § 2255 (for federal prisoners) after direct appeals are done. Quo warranto is a writ used to challenge someone’s legal right to hold an office or exercise authority; in criminal practice it’s seldom relevant, though it occasionally could be used to challenge, say, the authority of a special prosecutor or the Governor’s assignment of a case to a different prosecutor, etc. The key point is that all these writs are considered extraordinary remedies. They are not simply alternative ways to appeal; they are only for exceptional circumstances when the normal appellate process isn’t available or is inadequate to prevent a miscarriage of justice (and there is no requirement that the appellate court even read your petition before simply denying it without comment or giving any reason whatsoever – a denial could merely boil down to bad luck/timing and a very heavy/busy docket for the appellate court in any given month).

Using Writs Strategically: For a defense attorney handling a criminal case, knowing the availability of extraordinary writs is vital. Sometimes a crucial issue cannot wait for a final appeal – a client’s rights might be irreparably harmed by then. In those instances, a well-founded petition for certiorari, mandamus, or prohibition can be a lifesaver. However, the high standards (and some necessary luck to go along with it) mean that frivolous or routine requests will certainly be rejected (it is not uncommon for factually/legally objectively-strong petitions for extraordinary writs to be rejected/denied). Appellate courts do not grant these writs unless the petitioner clearly meets the criteria. For example, the Florida Supreme Court has emphasized that certiorari should not be used simply because the trial court might have erred – it’s reserved for errors that constitute a “violation of a clearly established principle of law resulting in a miscarriage of justice.”. Likewise, a mandamus or prohibition petition must show a clear entitlement; any ambiguity or availability of another non-appellate remedy could result in denial. An experienced criminal appellate lawyer will carefully evaluate whether an extraordinary writ is appropriate, since filing one that is denied may not only waste time and resources but could also – theoretically – potentially prejudice how the appellate court views the case/lawyer in the future (if they perceive it as dilatory – hence, one of the strategic advantages to properly employed appellate “ghost-writing” under the right circumstances).

In Florida’s District Courts of Appeal, petitions for writs are a common part of appellate practice (for instance, defense attorneys frequently file certiorari or prohibition petitions in discovery disputes or to challenge orders denying motions to dismiss on immunity grounds, etc.). In the Eleventh Circuit (federal), true mandamus petitions are less common, but they do arise – e.g., if a district judge refuses to honor a clear legal mandate or if a novel issue needs immediate clarification from the appellate court. One notable point: when an appellate court issues an extraordinary writ, it often does not directly decide the merits of the underlying issue in the way a normal appeal would. For example, if certiorari is granted in Florida, the typical relief is that the appellate court quashes (nullifies) the lower court’s order that was challenged, and then leaves it to the lower court to proceed in light of (in other words, to effectuate) the appellate court’s legal ruling. In prohibition, the relief is an order ousting the lower court from jurisdiction on the matter (stopping the trial or proceeding). In mandamus, it’s an order compelling the non-discretionary action that was withheld. These nuances underscore that writs are about the supervisory power of appellate courts to ensure the law is followed (not to enter orders directly affecting the outcome in the lower court – it is more of an “indirect” compulsion for a lower court to take, or not take, a certain action), rather than about reviewing all aspects of a case as on a direct appeal.

Kenneth Padowitz, P.A. – Florida’s Leading Criminal Defense and Criminal Appellate Lawyers

Criminal appellate practice – whether pursuing a direct appeal after conviction or navigating the narrow pathways of interlocutory appeals and extraordinary writs – requires in-depth knowledge of substantive, procedural, and constitutional law. The stakes are high: for the defendant, it could mean the difference between freedom and continued incarceration. Both Florida and Federal courts provide limited avenues to correct errors (and as the population continues to grow without an accompanying legislatively-adopted budget increase, appellate courts continue to have less and less time to spare, and so such “avenues” are increasingly limited as time goes on – either by case law, or simply just less of a chance to obtain “discretionary” appellate review), but those avenues are bounded by strict rules and deadlines. The Eleventh Circuit and Florida’s appellate courts expect precise, well-founded legal arguments, and they will only overturn lower decisions when a convincing case is made that a significant error occurred (and typically, although not publicly acknowledged – in actual appellate practice, the circumstances of any given case must not give an appellate judge pause to think about whether the “ends justify the means” – in other words, very rarely have we ever seen in our experience an appellate court grant a petition or overturn a case on direct appeal solely due to legal error – no matter how serious – or a loophole, if the crime is serious enough, or obvious to have occurred based on what can be gleaned from the record – even if replete with legal error; which is why an excellent – and aggressive, when necessary – appellate lawyer is not just good with the law and facts, but at “storytelling” – the appellate panel should feel good about the ultimate outcome appellate counsel is seeking on behalf of their client). Given these complex, multi-dimensional challenges, working with a criminal attorney who also specializes in criminal appeals is critical. Appellate advocacy is a distinct art – it requires a “thick skin” and involves extensive legal research, insightful issue-spotting, compelling brief writing, and – if ever needed – oral argument skills to address judges’ questions. An experienced appellate lawyer will also candidly advise their client which issues/cases are likely to succeed on appeal and which are not, focusing on the strongest arguments that offer the best chance of reversal or other relief; rather than just simply taking a client’s money and “doing the work”, regardless of an objectively low likelihood of success – and without, in good faith, being honest with the client and disclosing those concerns (under certain circumstances, even an estimated 5 or 10% likelihood of success is enough for some to go forward – and many of our clients/former clients fall within this category, but we are honest and make sure they are informed before taking the plunge – and there’s nothing wrong with that).

If you are considering an appeal or extraordinary writ relief in a criminal matter, time is of the essence (remember those filing deadlines), and so is the quality of advocacy. Contact our law firm for a free consultation on your anticipated appeal. Our judicial system merely provides the opportunity to seek correction of errors (it doesn’t guarantee the correction of errors) – from trial courts up through the appellate courts – but seizing that opportunity effectively (and strategically taking action to increase the already-low-by-default chances of a favorable outcome in any appeal, no matter how strong it looks on the face of the record)  is what separates successful appeals from unsuccessful ones. Every appeal is an “uphill battle”, but by leveraging deep knowledge of appellate procedure and precedent, a dedicated criminal defense trial lawyer who also excels as a criminal appeals attorney can help ensure that your case gets the thorough, skilled review it deserves in the higher courts, and to ensure you have the highest chances of obtaining a favorable outcome.

Additional Resource: https://flabarappellate.org/the-pro-se-handbook/