Wednesday, September 18, 2013

Appellate Practice: The End Of Terms Of Court

By Ezequiel Lugo

Once upon a time, “terms of court” made sense. In 1868, only seven circuit court judges served the entire state. Back then, these judges had to “ride the circuit,” sitting in each county seat for “two terms of his court” each year. Art. VI, § 7, Fla. Const. (1868). Having a fixed “term of court” ensured that the judges stayed in each county long enough to serve that county’s needs.  

At the appellate level, the Florida Constitution of 1868 required the Florida Supreme Court to hold three terms annually. Art. VI, § 4, Fla. Const. (1868). These appellate terms of court set fixed times for the justices to travel to Tallahassee to consider appeals. Fla. H.R. Civil Justice Subcomm., HB 7017 (2013) Final Bill Analysis 2 (May 16, 2013) (hereinafter “Bill Analysis”). When the district courts were created, these new courts were similarly required to hold two terms of court annually. See § 35.10, Fla. Stat. (2012).

In the modern era, terms of court are governed by statute. See §§ 25.051, 35.10, Fla. Stat. (2012). Although terms of court are no longer required to ensure judicial attendance, they still serve one important function at the appellate level: The end of a term marks the end of the court’s ability to recall its mandate. The mandate is the appellate court’s method of communicating its decision to the lower tribunal. Martin v. Martin, 139 So. 2d 406, 408 (Fla. 1962). Appellate courts have the power to recall a mandate “for good cause.” Simpson v. State, 505 So. 2d 1378, 1380 (Fla. 1st DCA 1987). For example, a court may recall a mandate to clarify its decision or resolve conflict. See Id.

Currently, the appellate court’s power to recall a mandate and modify a decision “generally ends with the term the mandate issued.” State Farm Mut. Auto. Ins. Co. v. Judges of the Dist. Ct. of Appeal, Fifth Dist., 405 So. 2d 980, 983 (Fla. 1981). But since modern courts meet year round, the arbitrary “term” cutoffs mean that some decisions are subject to modification for nearly six months, while others may be subject to modification for just a few days. Bill Analysis 3.

In its last term, the Florida Legislature fixed this historical quirk. Deeming terms of court to be “an archaic concept,” Bill Analysis 2, the Legislature repealed terms of court effective January 1, 2014. Ch. 2013-25, Laws of Fla.; Bill Analysis 1-3.

Starting next year, the Florida Supreme Court may: (1) establish terms of court; (2) authorize lower courts to establish their own terms of court; or (3) dispense with terms of court altogether. Ch. 2013-25, § 9, Laws of Fla. No matter how terms are used for scheduling, though, an appellate court will have the power to recall its mandate and modify a decision for up to 120 days after the mandate has been issued. Ch. 2013-25, § 10, Laws of Fla. For appellate practitioners, this means easier calendaring and a simple path to advising clients on finality issues.