Tag Archives: order

Still Waiting for Order in Evans v. McNeil, 08-14402-CIV-JEM

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For any criminal attorneys who have some time on their hands while we wait to see how the Court will rule on the State of Florida’s motion to reconsider, I thought you might like to read the Court’s Order on the petition for writ of habeas corpus.  You can find it here.  A word of warning: the Order is long.  The discussion of the constitutionality of the death penalty scheme runs from pages 78-93.

Meanwhile, according to an article posted in the Miami Herald on June 22, 2011, this is the first time a Court has declared the Florida death penalty scheme unconstitutional.  If the Court maintains its ruling, and the State of Florida appeals to the Eleventh Circuit, as Attorney General Pam Bondi has stated will likely be done, such an appeal could set the stage for the case to make its way to the United States Supreme Court.

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.