Fla. R. App. P. 9.120: Discretionary Review in the Florida Supreme Court

The Florida Supreme Court does not hear every case a litigant wants it to hear. Most of its civil docket arrives through discretionary review under Florida Rule of Appellate Procedure 9.120, and the Court accepts only a small share of the petitions filed. For a party who has lost in the Third District Court of Appeal in Miami, Rule 9.120 is the one route to further review of a written opinion, and it comes with short deadlines that begin running the day the district court issues its decision.

This page explains what Rule 9.120 covers, what the Court can and cannot review, and how the procedure unfolds from the notice through the merits briefs. It also works through the deadlines with dated examples so you can see how a Third District opinion becomes a Supreme Court case.

Where Rule 9.120 Fits

Rule 9.120 is the procedural vehicle for the discretionary jurisdiction described in Rule 9.030(a)(2)(A). The categories come from Article V, section 3(b) of the Florida Constitution. Under Rule 9.030(a)(2)(A), the Florida Supreme Court may review a district court decision that:

• Expressly declares a state statute valid: A decision that holds a statute unconstitutional is reviewable by appeal as of right under Rule 9.030(a)(1)(A)(ii). A decision that upholds the statute is reviewable only at the Court's discretion.
• Expressly construes a provision of the state or federal constitution: The opinion must actually interpret constitutional text, not simply mention it or reject an argument built on it.
• Expressly affects a class of constitutional or state officers: This basis is rarely available in private civil litigation.
• Expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law: This is the basis most petitioners invoke.
• Passes upon a question certified to be of great public importance: The district court itself flags the question.
• Is certified to be in direct conflict with a decision of another district court of appeal: Again, the certification comes from the district court.

Rule 9.120 does not govern every route to the Court. Certified questions that a district court passes through before deciding are handled under Rule 9.125. Original writ petitions fall under Rule 9.100. If you are trying to reach the Court from a Miami-Dade circuit court order that was never reviewed by the Third District, Rule 9.120 is not your vehicle.

What the Court Cannot Review

The Court's discretionary jurisdiction depends on what appears in the district court's written decision. Two long-standing rules shape nearly every Rule 9.120 petition.

First, a per curiam affirmance without a written opinion is not reviewable. The Court held in Jenkins v. State, 385 So. 2d 1356 (Fla. 1980), that a PCA with no opinion cannot expressly conflict with anything, because there is nothing on the page to conflict. A narrow exception exists for a citation PCA that relies on a case then pending in or later reversed by the Supreme Court, under Jollie v. State, 405 So. 2d 418 (Fla. 1981). Otherwise, a PCA from the Third District ends the case.

Second, conflict must appear within the four corners of the decision. In Reaves v. State, 485 So. 2d 829 (Fla. 1986), the Court explained that it will not look to the record, the briefs, or the trial transcript to find a conflict that the opinion does not itself reveal. Rule 9.120(d) enforces this by limiting the jurisdictional appendix to a conformed copy of the district court decision and nothing else. The district court need not announce that it is disagreeing with another court, as Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981), confirms, but the opinion must discuss the legal principle in a way that lets the Court see the collision.

The practical lesson for Third District litigants is that the fight over Supreme Court jurisdiction often begins before the opinion issues. A well-framed brief in the district court, and a motion for rehearing or certification under Rule 9.330 that asks the panel to write on the point, can determine whether Rule 9.120 review is possible at all.

Step 1: The Notice to Invoke Discretionary Jurisdiction

Rule 9.120(b) requires the petitioner to file a notice with the clerk of the district court of appeal within 30 days of rendition of the decision to be reviewed. For a Third District case, the notice is filed with the Third District clerk in Miami, who transmits it to the Supreme Court. The notice must be accompanied by the filing fee set by section 25.241(3), Florida Statutes, currently $300.

Rule 9.120(c) prescribes the contents. The caption must identify the lower tribunal, at least one party on each side, and the lower tribunal case number. The body of the notice must state the date of rendition and the specific basis for invoking jurisdiction. The form appears at Rule 9.900(d). A notice that omits the jurisdictional basis is defective, and the Court may dismiss on that ground.

The 30-day period is jurisdictional. Neither the district court nor the Supreme Court can extend it. The clock runs from rendition as defined in Rule 9.020(h), which means the date the signed written decision is filed with the clerk. A timely motion for rehearing, clarification, certification, or rehearing en banc under Rules 9.330 or 9.331 postpones rendition until the district court disposes of the motion. We explain the mechanics on our page about the rendition rule and the appeal clock.

Worked Example: No Motion for Rehearing

The Third District files its opinion on March 3. No party moves for rehearing. Rendition occurred March 3, and the notice to invoke discretionary jurisdiction is due April 2. If April 2 falls on a Saturday, Sunday, or legal holiday, Florida Rule of General Practice and Judicial Administration 2.514 carries the deadline to the next business day.

Worked Example: Timely Motion for Rehearing

The Third District files its opinion on January 10. The losing party files a motion for rehearing on January 24, within the 15 days Rule 9.330(a) allows. Rendition is postponed. The district court denies rehearing by order filed February 20. Rendition now occurs on February 20, and the notice is due March 22. A motion for rehearing filed on January 26, one day late, would not postpone rendition, and the notice would have been due February 9.

Step 2: Briefs on Jurisdiction

Rule 9.120(d) sets a compressed briefing schedule that addresses only jurisdiction. The petitioner must serve a jurisdictional brief within 10 days of filing the notice. The respondent has 30 days after service of that brief to serve an answer brief on jurisdiction. No reply brief is permitted. If jurisdiction rests solely on a certification by the district court under Rule 9.030(a)(2)(A)(v) or (vi), no jurisdictional briefs are filed at all.

Continuing the first example above, a notice filed April 2 produces a petitioner's jurisdictional brief due April 12 and a respondent's brief due May 12.

Jurisdictional briefs follow the formatting requirements of Rule 9.210, including the 2,500-word limit that applies to briefs on jurisdiction. Our page on Rule 9.210 brief requirements covers certificates of compliance, fonts, and word counts. The only permitted appendix item is a conformed copy of the Third District decision.

The content of the brief matters more than its length. A jurisdictional brief that argues the merits, complains that the district court got the law wrong, or relies on facts from the record will fail. The brief must quote the language of the Third District opinion, quote the language of the conflicting decision, and show that the two courts announced different rules on the same question of law. Where the basis is constitutional construction or upholding a statute, the brief must point to the sentence in the opinion where the court did so expressly.

Step 3: The Court's Decision on Jurisdiction

After the jurisdictional briefs are in, the Court does one of three things. It may decline to accept jurisdiction, which ends the case. It may accept jurisdiction and set a merits briefing schedule. Or, under Rule 9.120(e), it may postpone its decision on jurisdiction and order merits briefing, reserving the right to discharge jurisdiction later if the briefs reveal that no conflict actually exists.

When the Court accepts or postpones its decision on jurisdiction, Rule 9.120(e) directs the district court clerk to transmit the record within 60 days, or such other time as the Court sets. In most Rule 9.120 cases the record is the same record that was before the Third District, prepared under Rule 9.200.

Step 4: Briefs on the Merits

Rule 9.120(f) gives the petitioner 20 days from rendition of the order accepting or postponing jurisdiction to serve the initial brief on the merits. Additional briefs follow the Rule 9.210 schedule: the answer brief is due 30 days after service of the initial brief, and the reply brief 30 days after service of the answer brief. The Court frequently modifies these dates by order, so counsel must read every order from the clerk rather than assume the default schedule controls.

Merits briefs are subject to the 13,000-word limit for initial and answer briefs and the 4,000-word limit for reply briefs under Rule 9.210. The Court may set oral argument on its own motion or on request under Rule 9.320.

Stays While Review Is Pending

Filing a notice under Rule 9.120 does not stop the Third District from issuing its mandate, and it does not stay enforcement of the underlying judgment. Under Rule 9.340(a), the mandate issues 15 days after the district court's decision unless a timely motion for rehearing is pending. A party seeking Supreme Court review should move in the Third District to stay issuance of the mandate, and where a money judgment is involved, address the bond requirements under Rule 9.310. Our page on stays pending appeal and supersedeas bonds explains the options.

Rule 9.120 Timeline at a Glance

Strategic Points for Third District Litigants

A few decisions made early tend to determine whether a Rule 9.120 petition succeeds.

• Decide on rehearing before the 15-day window closes: A motion for rehearing or certification under Rule 9.330 postpones rendition and gives the panel a chance to write on the disputed point or certify a question. A certified question of great public importance eliminates the jurisdictional briefing stage entirely.
• Pick the strongest single basis: The notice must state the basis for jurisdiction. Listing several weak grounds signals to the Court that none of them is sound.
• Identify the conflicting decision precisely: The Court looks for a different rule of law applied to materially similar facts, as described in the opinions themselves. A different outcome on different facts is not conflict.
• Do not treat the jurisdictional brief as a merits brief: Arguing that the Third District erred, without showing where the opinion conflicts or construes the constitution, is the most common reason petitions are denied.
• Protect the judgment in the meantime: Move to stay the mandate and, where needed, post the bond. Supreme Court review can take a year or more, and an unstayed judgment may be executed on during that time.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].