924.04 Appeal by one of several defendants.—One or more defendants who are tried jointly may appeal, but those who do not join shall not be affected by the appeal except by express provision of the appellate court.
924.05 Appeal as matter of right.—Direct appeals provided for in this chapter are a matter of right.
History.—s. 284, ch. 19554, 1939; CGL 1940 Supp. 8663(294); s. 146, ch. 70-339; s. 3, ch. 96-248.
924.051 Terms and conditions of appeals and collateral review in criminal cases.—
(1) As used in this section:
(a) “Prejudicial error” means an error in the trial court that harmfully affected the judgment or sentence.
(b) “Preserved” means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.
(2) The right to direct appeal and the provisions for collateral review created in this chapter may only be implemented in strict accordance with the terms and conditions of this section.
(3) An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.
(4) If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.
(5) Collateral relief is not available on grounds that were or could have been raised at trial and, if properly preserved, on direct appeal of the conviction and sentence.
(6) In a noncapital case, a petition or motion for collateral or other postconviction relief may not be considered if it is filed more than 2 years after the judgment and sentence became final, unless the petition or motion alleges that:
(a) The facts upon which the claim is predicated were unknown to the petitioner or his or her attorney and could not have been ascertained by the exercise of due diligence;
(b) The fundamental constitutional right asserted was not established within the period provided for in this subsection and has been held to apply retroactively; or
(c) The sentence imposed was illegal because it either exceeded the maximum or fell below the minimum authorized by statute for the criminal offense at issue. Either the state or the defendant may petition the trial court to vacate an illegal sentence at any time.
(7) In a direct appeal or a collateral proceeding, the party challenging the judgment or order of the trial court has the burden of demonstrating that a prejudicial error occurred in the trial court. A conviction or sentence may not be reversed absent an express finding that a prejudicial error occurred in the trial court.
(8) It is the intent of the Legislature that all terms and conditions of direct appeal and collateral review be strictly enforced, including the application of procedural bars, to ensure that all claims of error are raised and resolved at the first opportunity. It is also the Legislature’s intent that all procedural bars to direct appeal and collateral review be fully enforced by the courts of this state.
(9) Funds, resources, or employees of this state or its political subdivisions may not be used, directly or indirectly, in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated.
History.—s. 4, ch. 96-248; s. 1842, ch. 97-102; s. 11, ch. 97-313; s. 19, ch. 2000-3.
924.055 Postconviction review in capital cases; legislative findings and intent.—
(1) It is the intent of the Legislature to reduce delays in capital cases and to ensure that all appeals and postconviction actions in capital cases are resolved within 5 years after the date a sentence of death is imposed in the circuit court. All capital postconviction actions must be filed as early as possible after the imposition of a sentence of death which may be during a direct appeal of the conviction and sentence. A person sentenced to death or that person’s capital postconviction counsel must file any postconviction legal action in compliance with the statutes of limitation established in s. 924.056 and elsewhere in this chapter. Except as expressly allowed by s. 924.056(5), a person sentenced to death or that person’s capital postconviction counsel may not file more than one postconviction action in a sentencing court and one appeal therefrom to the Florida Supreme Court, unless authorized by law.
(2) It is the further intent of the Legislature that no state resources be expended in violation of this act. In the event that any state employee or party contracting with the state violates the provisions of this act, the Attorney General shall deliver to the Speaker of the House of Representatives and the President of the Senate a copy of any court pleading or order that describes or adjudicates a violation.
History.—s. 8, ch. 96-290; s. 5, ch. 2000-3.
924.056 Commencement of capital postconviction actions for which sentence of death is imposed on or after January 14, 2000; limitations on actions.—
(1) In every capital case in which the trial court imposes a sentence of death on or after the effective date of this act, this section shall govern all postconviction proceedings in state court.
(a) Within 15 days after imposing a sentence of death, the sentencing court shall appoint the appropriate office of the capital collateral regional counsel or private postconviction counsel, unless the defendant declines to accept postconviction legal representation in which case the state shall not provide postconviction legal representation. Within 30 days after the appointment, the capital collateral regional counsel shall file a notice of appearance in the trial court or a motion to withdraw based on a conflict of interest or for good cause. The court shall appoint private counsel pursuant to part IV of chapter 27 in any case in which the capital collateral regional counsel files a motion to withdraw, or otherwise informs the court that the capital collateral regional counsel cannot comply with the provisions of chapter 924 or in which the court determines that the agency cannot comply with chapter 924 or other applicable laws.
(b) The defendant who accepts the appointment of postconviction counsel must cooperate with and assist postconviction counsel. If the sentencing court finds the defendant is obstructing the postconviction process, the defendant shall not be entitled to any further postconviction legal representation provided by the state. Each attorney participating in a capital case on behalf of a defendant must provide all information pertaining to the capital case which the attorney obtained during the representation of that defendant to that defendant’s capital postconviction counsel. Postconviction counsel must maintain the confidentiality of any confidential information received from any attorney for that defendant and is subject to the same penalties as the providing attorney for violating confidentiality. If the defendant requests without good cause that any attorney appointed under this subsection be removed or replaced, the court shall notify the defendant that no further state resources may be expended for postconviction representation for that defendant, unless the defendant withdraws the request to remove or replace postconviction counsel. If the defendant does not immediately withdraw his or her request, then any appointed attorney must be removed from the case and no further state resources may be expended for the defendant’s postconviction representation. The prosecuting attorney and the defendant’s trial counsel shall provide the defendant or, if represented, the defendant’s capital postconviction counsel with copies of all pretrial and trial discovery and all contents of the prosecuting attorney’s file, except for information that the prosecuting attorney has a legal right under state or federal law to withhold from disclosure.
(2) The clerk of the court shall provide a copy of the record on appeal to the capital postconviction attorney and the state attorney and Attorney General within 60 days after the sentencing court appoints postconviction counsel. However, the court may grant an extension of up to 30 days when extraordinary circumstances exist.
(3)(a) With respect to all capital postconviction actions commenced after the effective date of this act, a capital postconviction action is not commenced until the defendant or the defendant’s postconviction counsel files a fully pled postconviction action in the sentencing court or, as provided in subsection (4), the Florida Supreme Court. For the purposes of this subsection, a fully pled capital postconviction action is one which complies with s. 924.058(2) or any superseding rule adopted by the Florida Supreme Court. Except as provided by subsection (4) or subsection (5), all capital postconviction actions shall be barred unless they are commenced within 180 days after the filing of the appellant’s initial brief in the Florida Supreme Court on direct appeal of the defendant’s capital conviction and sentence. The fully pled postconviction action must raise all cognizable claims that the defendant’s judgment or sentence was entered in violation of the Constitution or laws of the United States or the Constitution or the laws of the state, including any claim of ineffective assistance of trial counsel, allegations of innocence, or that the state withheld evidence favorable to the defendant. No claim may be considered in such action which could have or should have been raised before trial, at trial, or if preserved on direct appeal. For the purposes of this subsection, a capital postconviction action is not fully pled unless it satisfies the requirements of s. 924.058(2) or any superseding rule of court.
(b) No claim of ineffective assistance of collateral postconviction counsel may be raised in a state court.
(c) The pendency of public records requests or litigation, or the pendency of other litigation, or the failure of the defendant or the defendant’s postconviction counsel to timely prosecute a case shall not constitute cause for the court to grant any request for an extension of time or other delay. No appeal may be taken from a court’s ruling denying such a request for an extension of time or other delay.
(d) The time for commencement of the postconviction action may not be tolled for any reason or cause. All claims raised by amendment of a defendant’s capital postconviction action are barred if the claims are raised outside the time limitations provided by statute for the filing of capital postconviction actions.
(4) All capital postconviction actions raising any claim of ineffective assistance of direct appeal counsel are barred unless they are commenced in conformity with this subsection. The defendant or the defendant’s capital postconviction counsel shall file an action in the Florida Supreme Court raising any claim of ineffective assistance of direct appeal counsel within 45 days after mandate issues affirming the death sentence in the direct appeal.
(5) Regardless of when a sentence is imposed, all successive capital postconviction actions are barred unless commenced by filing a fully pled postconviction action within 90 days after the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence. Such claim shall be barred pursuant to subsection (3) or s. 924.057 unless the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the defendant guilty of the underlying offense. Additionally, the facts underlying this claim must have been unknown to the defendant or his or her attorney and must be such that they could not have been ascertained by the exercise of due diligence prior to filing the earlier postconviction motion. The time period allowed for filing a successive collateral postconviction action shall not be grounds for a stay.
History.—s. 6, ch. 2000-3.
924.057 Limitation on postconviction cases in which the death sentence was imposed before January 14, 2000.—This section shall govern all capital postconviction actions in cases in which the trial court imposed the sentence of death before the effective date of this act.
(1) Nothing in this act shall expand any right or time period allowed for the prosecution of capital postconviction claims in any case in which a postconviction action was commenced or should have been commenced prior to the effective date of this act.
(2) Except as provided in s. 924.056(5), in every case in which mandate has issued in the Florida Supreme Court concluding at least one capital postconviction action in the state court system, a successive capital postconviction action shall be barred on the effective date of this act, unless the rules or law in effect immediately prior to the effective date of this act permitted the successive postconviction action, in which case the action shall be barred on the date provided in subsection (4).
(3) All capital postconviction actions pending on the effective date of this act shall be barred, and shall be dismissed with prejudice, unless fully pled in substantial compliance with s. 924.058, or with any superseding order or rule, on or before:
(a) The time in which the action would be barred by this section if the action had not begun prior to the effective date of this act, or
(b) Any earlier date provided by the rules or law, or court order, in effect immediately prior to the effective date of this act.
(4) In every capital case in which the trial court imposed the sentence of death before the effective date of this act, a capital postconviction action shall be barred unless it is commenced on or before January 8, 2001, or any earlier date provided by the rule or law in effect immediately prior to the effective date of this act.
History.—s. 7, ch. 2000-3.
924.058 Capital postconviction claims.—This section shall regulate the procedures in actions for capital postconviction relief commencing after the effective date of this act unless and until such procedures are revised by rule or rules adopted by the Florida Supreme Court which specifically reference this section.
(1) The defendant or the defendant’s capital postconviction counsel shall not file more than one capital postconviction action in the sentencing court, one appeal therefrom in the Florida Supreme Court, and one original capital postconviction action alleging the ineffectiveness of direct appeal counsel in the Florida Supreme Court, except as expressly allowed by s. 924.056(5).
(2) The defendant’s postconviction action shall be filed under oath and shall be fully pled to include:
(a) The judgment or sentence under attack and the court which rendered the same;
(b) A statement of each issue raised on appeal and the disposition thereof;
(c) Whether a previous postconviction action has been filed and, if so, the disposition of all previous claims raised in postconviction litigation; if a previous action or actions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former action or actions;
(d) The nature of the relief sought;
(e) A fully detailed allegation of the factual basis for any claim of legal or constitutional error asserted, including the attachment of any document supporting the claim, the name and address of any witness, the attachment of affidavits of the witnesses or a proffer of the testimony; and
(f) A concise memorandum of applicable case law as to each claim asserted.
(3) Any capital postconviction action that does not comply with any requirement in this section or other applicable provision in law shall not be considered in any state court. No amendment of a defendant’s capital postconviction action shall be allowed by the court after the expiration of the time limitation provided by statute for the commencement of capital postconviction actions.
(4) The prosecuting attorney or Attorney General shall be allowed to file one response to any capital postconviction action within 60 days after receipt of the defendant’s fully pled capital postconviction action.
History.—s. 8, ch. 2000-3.
924.059 Time limitations and judicial review in capital postconviction actions.—This section shall regulate the procedures in actions for capital postconviction relief commencing after the effective date of this act unless and until such procedures are revised by rule or rules adopted by the Florida Supreme Court which specifically reference this section.
(1) No amendment of a defendant’s capital postconviction action shall be allowed by the court after the expiration of the time periods provided by statute for the filing of capital postconviction claims.
(2) Within 30 days after the state files its answer, the sentencing court shall conduct a hearing to determine if an evidentiary hearing is required, if a hearing has been requested by the defendant or the defendant’s capital postconviction counsel. Within 30 days thereafter, the court shall rule whether an evidentiary hearing is required and, if so, shall schedule an evidentiary hearing to be held within 90 days. If the court determines that the defendant’s capital postconviction action is legally insufficient or the action, files, and records in the case show that the defendant is not entitled to relief, the court shall, within 45 days thereafter, deny the action, setting forth a detailed rationale therefore, and attaching or referencing such portions of the record as are necessary to allow for meaningful appellate review.
(3) Within 10 days after the order scheduling an evidentiary hearing, the defendant or the defendant’s capital postconviction counsel shall disclose the names and addresses of any potential witnesses not previously disclosed, with their affidavits or a proffer of their testimony. Upon receipt of the defendant’s disclosure, the state shall have 10 days within which to provide reciprocal disclosure. If the defendant intends to offer expert testimony of his or her mental status, the state shall be entitled to have the defendant examined by an expert of its choosing. All of the defendant’s mental status claims shall be deemed denied as a matter of law if the defendant fails to cooperate with the state’s expert. Reports provided by expert witnesses shall be disclosed by opposing counsel upon receipt.
(4) Following the evidentiary hearing, the court shall order the transcription of the proceeding which shall be filed within 30 days. Within 30 days after receipt of the transcript, the sentencing court shall issue a final order granting or denying postconviction relief, making detailed findings of fact and conclusions of law with respect to any allegation asserted.
(5) An appeal may be taken to the Supreme Court of Florida within 15 days from the entry of a final order on a capital postconviction action. No interlocutory appeal shall be permitted. No motion for rehearing shall be permitted. The clerk of the court shall promptly serve upon all parties a copy of the final order.
(6) If the sentencing court has denied the capital postconviction action without an evidentiary hearing, the appeal to the Florida Supreme Court will be expeditiously resolved in a summary fashion. On appeal, the case shall be initially reviewed for a determination whether the sentencing court correctly resolved the defendant’s claims without an evidentiary hearing. If the Florida Supreme Court determines an evidentiary hearing should have been held, the decision to remand for an evidentiary hearing may be made by an order without an opinion. Jurisdiction shall be relinquished to the trial court for a specified period, which must be scheduled within 30 days and must be concluded within 90 days, for the purpose of conducting an evidentiary hearing on any issue identified by the Florida Supreme Court’s order. Thereafter, the record shall be supplemented with the hearing transcript.
(7) The Florida Supreme Court shall render its decision within 180 days after receipt of the record on appeal. If a denial of an action for postconviction relief is affirmed, the Governor may proceed to issue a warrant for execution.
(8) A capital postconviction action filed in violation of the time limitations provided by statute is barred, and all claims raised therein are waived. A state court shall not consider any capital postconviction action filed in violation of s. 924.056 or s. 924.057. The Attorney General shall deliver to the Governor, the President of the Senate, and the Speaker of the House of Representatives a copy of any pleading or order that alleges or adjudicates any violation of this provision.
History.—s. 9, ch. 2000-3.
924.06 Appeal by defendant.—
(1) A defendant may appeal from:
(a) A final judgment of conviction when probation has not been granted under chapter 948, except as provided in subsection (3);
(b) An order granting probation under chapter 948;
(c) An order revoking probation under chapter 948;
(d) A sentence, on the ground that it is illegal; or
(e) A sentence imposed under s. 921.0024 of the Criminal Punishment Code which exceeds the statutory maximum penalty provided in s. 775.082 for an offense at conviction, or the consecutive statutory maximums for offenses at conviction, unless otherwise provided by law.
(2) An appeal of an order granting probation shall proceed in the same manner and have the same effect as an appeal of a judgment of conviction. An appeal of an order revoking probation may review only proceedings after the order of probation. If a judgment of conviction preceded an order of probation, the defendant may appeal from the order or the judgment or both.
(3) A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.
History.—s. 285, ch. 19554, 1939; CGL 1940 Supp. 8663(295); s. 22, ch. 20519, 1941; s. 3, ch. 59-130; s. 147, ch. 70-339; s. 7, ch. 76-274; s. 3, ch. 83-87; s. 6, ch. 93-406; s. 5, ch. 96-248; s. 27, ch. 97-194; s. 13, ch. 98-204.
924.065 Denial of motion for new trial or arrest of judgment; appeal bond; supersedeas.—
(1) Immediately after denial of a motion for a new trial or a motion in arrest of judgment, the court shall dictate the denial to the court reporter and sentence the defendant. The defendant may file notice of appeal following denial of the motion and sentencing. Upon filing of notice of appeal, the court shall set the amount of the appeal bond if the defendant is entitled to bail. The clerk shall prepare a certificate setting forth the filing and approval of the supersedeas bond, and the certificate shall be sufficient authority for release of the defendant.
(2) An appeal shall not be a supersedeas to the execution of the judgment, sentence, or order until the appellant has entered into a bond with at least two sureties to secure the payment of the judgment, fine, and any future costs that may be adjudged by the appellate court. The bond shall be conditioned on the appellant’s personally answering and abiding by the final order, sentence, or judgment of the appellate court and, if the action is remanded, on the appellant’s appearing at the next term of the court in which the case was originally determined and not departing without leave of court.
(3) An appellant who has been sentenced to death shall not be released on bail.
(1) Subject to the terms and conditions set forth in this chapter, a prisoner in custody may seek relief based upon claims that the judgment of conviction or sentence was imposed in violation of the Constitution or law of the United States or the State of Florida.
(2) Either the state or a prisoner in custody may obtain review in the next higher state court of a trial court’s adverse ruling granting or denying collateral relief. The state may obtain review of any trial court ruling that fails to enforce a procedural bar.
(3) A person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer.
History.—s. 6, ch. 96-248.
924.07 Appeal by state.—
(1) The state may appeal from:
(a) An order dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release.
(b) An order granting a new trial.
(c) An order arresting judgment.
(d) A ruling on a question of law when the defendant is convicted and appeals from the judgment. Once the state’s cross-appeal is instituted, the appellate court shall review and rule upon the question raised by the state regardless of the disposition of the defendant’s appeal.
(e) The sentence, on the ground that it is illegal.
(f) A judgment discharging a prisoner on habeas corpus.
(g) An order adjudicating a defendant insane under the Florida Rules of Criminal Procedure.
(h) All other pretrial orders, except that it may not take more than one appeal under this subsection in any case.
(i) A sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.
(j) A ruling granting a motion for judgment of acquittal after a jury verdict.
(k) An order denying restitution under s. 775.089.
(l) An order or ruling suppressing evidence or evidence in limine at trial.
(m) An order withholding adjudication of guilt in violation of s. 775.08435.
(2) An appeal under this section must embody all assignments of error in each pretrial order that the state seeks to have reviewed. The state shall pay all costs of the appeal except for the defendant’s attorney’s fee.
History.—s. 286, ch. 19554, 1939; CGL 1940 Supp. 8663(296); s. 1, ch. 69-15; s. 148, ch. 70-339; s. 4, ch. 83-87; s. 46, ch. 87-243; s. 1, ch. 90-239; s. 14, ch. 93-37; s. 7, ch. 93-406; s. 7, ch. 96-248; s. 28, ch. 97-194; s. 14, ch. 98-204; s. 2, ch. 2004-60.
924.071 Additional grounds for appeal by the state; time for taking; stay of cause.—
(1) The state may appeal from a pretrial order dismissing a search warrant or suppressing evidence, however obtained, or which directly and expressly conflicts with an appellate decision of a district court of appeal or of the Florida Supreme Court. The appeal must be taken before the trial.
(2) An appeal by the state from a pretrial order shall stay the case against each defendant upon whose application the order was made until the appeal is determined. If the trial court determines that the evidence, confession, or admission that is the subject of the order would materially assist the state in proving its case against another defendant and that the prosecuting attorney intends to use it for that purpose, the court shall stay the case of that defendant until the appeal is determined. A defendant in custody whose case is stayed either automatically or by order of the court shall be released on his or her own recognizance pending the appeal if he or she is charged with a bailable offense.
History.—ss. 1, 2, ch. 67-123; s. 1, ch. 69-267; s. 149, ch. 70-339; s. 2, ch. 90-239; s. 1554, ch. 97-102.
924.08 Courts of appeal.—Appeals from final judgments in misdemeanor cases tried by county courts shall be to the circuit court.
History.—s. 287, ch. 19554, 1939; CGL 1940 Supp. 8663(297); s. 35, ch. 63-559; s. 150, ch. 70-339; s. 40, ch. 73-334; s. 178, ch. 83-216.
924.09 When appeal to be taken by defendant.—An appeal may be taken by the defendant only within the time provided by the Florida Rules of Appellate Procedure after the judgment, sentence, or order appealed from is entered, except that an appeal by a person who has not been granted probation may be taken from both judgment and sentence within the time provided by said rules after the sentence is entered.
History.—s. 288, ch. 19554, 1939; CGL 1940 Supp. 8663(298); s. 4, ch. 59-130; s. 1, ch. 69-267.
924.14 Stay of execution when defendant appeals.—An appeal by a defendant from either the judgment or sentence shall stay execution of the sentence, subject to the provisions of s. 924.065.
924.16 Discharge pending appeal.—If a defendant is in custody after judgment of conviction at the time of appeal, the appeal and supersedeas shall not discharge the defendant from custody. The court appealed from or a judge of the appellate court may order the defendant released on bail in cases that are bailable.
History.—s. 293c, ch. 19554, 1939; CGL 1940 Supp. 8663(305); s. 153, ch. 70-339; s. 1555, ch. 97-102.
924.17 Costs when appellant is indigent.—If the court determines that the defendant is indigent and unable to pay costs, the appeal shall be a supersedeas without payment of costs.
History.—s. 293d, ch. 19554, 1939; CGL 1940 Supp. 8663(306); s. 1, ch. 28009, 1953; s. 154, ch. 70-339.
924.18 Bail when state appeals.—If the state appeals after a conviction of the defendant, a justice or judge of the appellate or trial court may in his or her discretion admit the defendant to bail.
History.—s. 294, ch. 19554, 1939; CGL 1940 Supp. 8663(307); s. 155, ch. 70-339; s. 1556, ch. 97-102.
924.19 When operation of order in favor of defendant not stayed.—An appeal by the state shall not stay the operation of an order in favor of the defendant except as provided in s. 924.071(2), or when the appeal is from an order granting a new trial.
924.20 Duty of court upon breach of undertaking.—When an appellant at liberty on bail fails to prosecute the appeal as required by the undertaking, the appellate court, in addition to declaring the bond forfeited, may dismiss the appeal and remand the case for further proceedings.
924.22 Stay when execution of sentence already commenced.—A defendant who is in custody and has started serving a sentence before an appeal may elect to continue to serve the sentence during the pendency of the appeal even though the defendant may be eligible for bail.
History.—s. 298, ch. 19554, 1939; CGL 1940 Supp. 8663(311); s. 157, ch. 70-339; s. 1557, ch. 97-102.
924.28 Failure of clerk to transmit appeal papers as required.—Failure of the clerk to transmit appeal papers within the time provided shall not prejudice the rights of the parties. The appellate court or trial court may direct the clerk to transmit the papers on its own motion and shall do so on the motion of either party.
924.33 When judgment not to be reversed or modified.—No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.
924.34 When evidence sustains only conviction of lesser offense.—When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
History.—s. 310, ch. 19554, 1939; CGL 1940 Supp. 8663(323); s. 161, ch. 70-339; s. 1558, ch. 97-102.
924.35 Enforcement of judgment on affirmance.—When the judgment against the defendant is affirmed, the judgment shall be enforced by the trial court.
(1) When the state appeals from an order dismissing an indictment, information, or affidavit, or a count of it, or an order granting a new trial and the order is affirmed, the appellate court shall direct the trial court to implement the order. If an order dismissing an indictment, information, or affidavit, or a count of it, is reversed, the appellate court shall direct the trial court to permit the defendant to be tried on the reinstated indictment, information, or affidavit. If an order granting a new trial is reversed, the appellate court shall direct that judgment of conviction be entered against the defendant.
(2) A cross-appeal by the state is not jurisdictional. When the state cross-appeals from a ruling on a question of law adverse to the state, the appellate court shall decide the question if it is reasonably capable of repetition in any proceeding.
History.—s. 313, ch. 19554, 1939; CGL 1940 Supp. 8663(326); s. 163, ch. 70-339; s. 8, ch. 96-248.
924.38 When removal shall be allowed on new trial.—When the appellate court orders a new trial, it shall be held in the court from which the appeal was taken unless the appellate court determines that the trial court improperly denied the defendant’s application for removal of the original trial. If the appellate court determines that removal is proper, it shall designate the court for the new trial.
(1) The Legislature strongly encourages the courts, through their inherent powers and pursuant to this section, to impose sanctions against any person within the court’s jurisdiction who is found by a court, in a capital postconviction proceeding or appeal therefrom, to have:
(a) Abused a petition for extraordinary relief, postconviction motion, or appeal therefrom;
(b) Raised a claim that a court has found to be frivolous or procedurally barred or that should have been raised on the direct appeal;
(c) Improperly withheld evidence or testimony; or
(d) Adversely affected the orderly administration of justice.
(2) Sanctions the court may and should consider, when applicable and appropriate in a case, include, but are not limited to:
(a) Dismissal of a pleading;
(b) Disciplinary sanctions;
(c) A fine; and
(d) Any other sanction that is available to the court under its inherent powers.