In Re: Amendments to the Florida Rule of Appellate Procedure 9.141

Supreme Court of Florida
____________

No. SC21-673
____________

IN RE: AMENDMENTS TO THE FLORIDA RULE OF APPELLATE
PROCEDURE 9.141.

May 19, 2022

PER CURIAM.

We have for review a report of The Florida Bar’s Appellate

Court Rules Committee (Committee) proposing amendments to

Florida Rule of Appellate Procedure 9.141(c) (Review Proceedings in

Collateral or Postconviction Criminal Cases; Petitions Seeking

Belated Appeal or Belated Discretionary Review). We have

jurisdiction. See art. V, § 2(a), Fla. Const.; see also Fla. R. Gen.

Prac. & Jud. Admin. 2.140(f).

The Committee proposes two sets of amendments to rule

9.141(c). The Committee first proposes merging the requirements

for belated appeal and belated discretionary review in rule

9.141(c)(4)(F)(i). It next proposes adding new subdivision (c)(4)(G),

under which a criminal defendant seeking belated discretionary
review is required to identify a basis for invoking the Court’s

jurisdiction and to include a copy of the decision from which review

is sought. We asked the Committee to consider proposing both sets

of amendments, as the current version of rule 9.141(c) neither

requires a criminal defendant to allege a basis for the Court’s

jurisdiction when petitioning for belated discretionary review, nor

does it authorize belated discretionary review in cases where

counsel, due to neglect or mistake, fails to timely file a notice to

invoke on behalf of a criminal defendant. 1

1. The requirements for seeking belated discretionary review
in rule 9.141(c)(4)(F) are largely derived from Sims v. State, 998 So.
2d 494 (Fla. 2008), where we held that as part of a criminal
defendant’s right to the effective assistance of counsel on direct
appeal, appellate counsel must timely notify the defendant of an
appellate court decision and advise him or her of the right to seek
discretionary review in a pro se capacity. See id. at 499, 501 n.6.
However, as criminal defendants do not have a constitutional
entitlement to counsel as a matter of right in discretionary
proceedings, rule 9.141(c)(4)(F) does not currently authorize belated
discretionary review in cases where counsel, due to neglect or
mistake, fails to timely file a notice to invoke on behalf of a criminal
defendant. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)
(criminal defendant had no constitutional right to counsel to pursue
discretionary state appeal and was thus not deprived of the effective
assistance of counsel by his attorney’s failure to timely petition for
review); Ross v. Moffitt, 417 U.S. 600, 614-17 (1974) (no
constitutional right to counsel to pursue discretionary state appeals
or requests for review in U.S. Supreme Court); see also Sims, 998
So. 2d at 502 n.7 (distinguishing Torna and stating that the Court’s

-2-
The proposed amendments were approved by the Board of

Governors of The Florida Bar, and both the Committee and the

Court published the amendments for comment in The Florida Bar

News. No comments were received following either publication.

Having considered the Committee’s report, we adopt new

subdivision (c)(4)(G) as proposed by the Committee, but decline to

adopt the Committee’s proposed amendments to subdivision

(c)(4)(F)(i). We instead amend subdivision (c)(4)(F)(ii) by deleting the

phrase “unrelated to counsel’s action or inaction.” This change will

allow for a case-by-case assessment of whether, and to what extent,

counsel’s alleged neglect or mistake “interfered with the petitioner’s

ability to file a timely . . . notice to invoke.” Fla. R. App. P.

9.141(c)(4)(F)(ii).

Accordingly, Florida Rule of Appellate Procedure 9.141 is

amended as set forth in the appendix to this opinion. New language

is indicated by underscoring; deletions are indicated by struck-

through type. The amendments shall become effective on July 1,

2022, at 12:01 a.m.

decision is grounded in the effective assistance of appellate counsel
during direct appeal).

-3-
It is so ordered.

POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
CANADY, C.J., concurs in part and dissents in part with an
opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

CANADY, C.J., concurring in part and dissenting in part.

I concur in the creation of new subdivision (c)(4)(G), which

requires a petitioner to show the basis for invoking discretionary

review jurisdiction. But I dissent from the revision of subdivision

(c)(4)(F)(ii), which appears to expand the scope of belated

discretionary review. The appropriateness of expanding the

availability of belated discretionary review has not been established.

Original Proceeding – Florida Rules of Appellate Procedure

Laura A. Roe, Chair, Appellate Court Rules Committee, St.
Petersburg, Florida, Honorable Stephanie Williams Ray, Past Chair,
Appellate Court Rules Committee, Tallahassee, Florida, Joshua E.
Doyle, Executive Director, and Krys Godwin, Staff Liaison, The
Florida Bar, Tallahassee, Florida,

for Petitioner

-4-
Appendix

RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL OR
POSTCONVICTION CRIMINAL CASES

(a)-(b) [No Change]

(c) Petitions Seeking Belated Appeal or Belated
Discretionary Review.

(1)-(3) [No Change]

(4) Contents. The petition shall be in the form
prescribed by rule 9.100, may include supporting documents, and
shall recite in the statement of facts:

(A)-(D) [No Change]

(E) the nature of the relief sought; and

(F) the specific acts sworn to by the petitioner or
petitioner’s counsel that constitute the basis for entitlement to
belated appeal or belated discretionary review, as outlined below:

(i) [No Change]

(ii) a petition seeking belated appeal or
belated discretionary review must identify the circumstances
unrelated to counsel’s action or inaction, including names of
individuals involved and date(s) of the occurrence(s), that were
beyond the petitioner’s control and otherwise interfered with the
petitioner’s ability to file a timely appeal or notice to invoke, as
applicable.; and

(G) if seeking belated discretionary review, the
basis for invoking discretionary review jurisdiction with a copy of
the district court’s decision attached.

(5)-(6) [No Change]

(d) [No Change]

-5-
Committee Notes

[No Change]

-6-