Tag Archives: abuse of discretion

Standards of Review

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The standard of review in criminal cases often turns on whether the decision being appealed is a decision of fact, a decision of law, or a discretionary decision.

Decisions of law are generally reviewed under the de novo standard.  See Ornelas v. United States, 517 U.S. 690 (1996); Connor v. State, 803 So. 2d 598 (Fla. 2001).  Orders granting a motion to dismiss an information or granting a judgment of acquittal may be reviewed under such standard.  See State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA 2002) (dismissal); Huggins v. State, 889 So. 2d 743 (Fla. 2004) (judgment of acquittal).

Many decisions in criminal cases are reviewed under the abuse of discretion standard.  Such decisions include orders on motions to change venue, orders on motions to appoint experts to indigent defendants, orders finding the defendant competent to stand trial, orders relating to discovery, orders regarding severance or consolidation, orders on motions to continue trial, and orders on motions to withdraw a plea.  See Rivera v. State, 859 So. 2d 495 (Fla. 2003) (venue); Robbins v. State, 891 So. 2d 1102 (Fla. 5th DCA 2004) (appointment of expert); Ferguson v. State, 789 So. 2d 306 (Fla. 2001) (competency); State v. Tascarella, 580 So. 2d 154 (Fla. 1991) (discovery); Crossley v. State, 596 So. 2d 447 (Fla. 1992) (consolidation or severance); Bouie v. State, 559 So. 2d 1113 (Fla. 1990) (continuance); Taylor v. State, 870 So. 2d 72 (Fla. 2d DCA 2003) (withdrawal of plea).

Some decisions are reviewable under more complex standards, such as orders granting or denying motions to suppress, or decisions to depart from the sentencing guidelines.  See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001) (motion to suppress); C.A.M. v. State, 819 So. 2d 802 (Fla. 4th DCA 2001) (motion to suppress); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (departure from guidelines).

A special standard of review applies to convictions based on circumstantial evidence.  See State v. Law, 559 So. 2d 187, 188 (Fla. 1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”) (citation omitted).

Appeals in State and Federal Courts

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Whether a party is in State or Federal court, whenever a court renders an adverse decision, a party should consider several factors in deciding whether to appeal the order, including: (1) whether there is a right to appeal the order; (2) when the appeal may be filed; (3) what are the time limits governing the appeal; (4) in which court will the appeal lie; (5) what is the applicable standard of review; and, (6) what are the costs associated with the appeal.

With regard to the right to appeal, parties should be aware that some orders may not be immediately appealable.  Rather, the rules may provide that the appeal may only be heard at the end of the case.

With regard to the time of the appeal and applicable time limits, the parties may wish to consult the appellate rules for guidance on the time in which notices of appeal, appellate briefs, and appeals-related motions should be filed.  Failure to follow the applicable rules may result in a party losing the appeal.  The Rules for the United States Court of Appeals for the Eleventh Circuit may be found here.  The Florida Rules of Appellate Procedure may be found here.

In determining where to file the appeal, appeals in both the State and Federal system generally lie with the next higher court.  For example, State court cases in the County Court may be appealed to the Circuit Court, and Circuit Court cases may be appealed to the District Court of Appeal.  Opinions rendered by any of the Florida District Courts of Appeal may be appealed to the Florida Supreme Court.  In the Federal system, orders issued by a United States Magistrate Judge may be appealed to the United States District Court, District Court orders may be appealed to the Eleventh Circuit, and opinions issued by the Eleventh Circuit may be appealed to the United States Supreme Court.

Standards of review on appeal include de novo and abuse of discretion.  A party should be aware that the likelihood of success on appeal may be determined in large part by the applicable standard of review.

Finally, a party should be aware that costs of an appeal may be substantial.  Prior to deciding whether to appeal, a party may wish to consider the costs associated with filing the notice of appeal, designating the record and transcripts, and filing briefs and motions.  Having counsel attend oral argument may also add to the cost of appeal.