Fla. R. App. P. 9.300: Motions in Florida Appellate Courts and Extensions of Time

Almost every Florida appeal involves at least one motion. Appellants ask for more time to serve the initial brief. Appellees move to strike an improper appendix. Parties ask to consolidate related appeals or to supplement the record. Florida Rule of Appellate Procedure 9.300 sets the ground rules for all of these requests, and it controls how a pending motion affects the rest of the appellate schedule. Our Miami appellate firm files and defends motions in the Third District Court of Appeal and in the Florida Supreme Court. This page explains how the rule works in practice.

What Rule 9.300(a) Requires in Every Motion

Rule 9.300(a) provides that any application for an order or other relief available under the appellate rules is made by filing a motion. The motion must state:

• The grounds: the factual and procedural basis for the request.
• The relief sought: the exact order the party wants the court to enter.
• Argument: why the court should grant it.
• Citations of authority: the rules, cases, or statutes that support the request.

A motion may be accompanied by an appendix, and that appendix may include affidavits and other supporting documents that are not part of the record on appeal. This matters because appellate courts otherwise confine themselves to the record prepared under Rule 9.200. A motion is one of the few places where facts outside the record, such as counsel's medical emergency or a court reporter's delay, can be placed before the court.

The conferral certificate

A motion for extension of time must contain a certificate that the movant's counsel has consulted opposing counsel and is authorized to represent either that opposing counsel has no objection or that opposing counsel will promptly file an objection. Other motions may include the same certificate where appropriate. The Third District enforces this requirement. A motion for extension filed without a conferral certificate invites denial without prejudice, which costs time the movant may not have.

Responding to a motion

Under Rule 9.300(a), a party may serve one response to a motion within 15 days of service of the motion. The court may shorten or extend that period. The rule does not provide for a reply in support of the motion, and courts generally will not consider one without leave. If you oppose a motion, the 15-day window is your only opportunity to be heard on paper.

How Rule 9.300(b) Tolls the Appellate Schedule

Rule 9.300(b) is the provision that makes extension practice workable. Except for the motions listed in subdivision (d), service of a motion tolls the time schedule of the proceeding until the court disposes of the motion. If a brief is due on Friday and a motion for extension is served on Wednesday, the brief is not late on Saturday. The clock stops until the court rules.

The rule adds two automatic consequences:

• An order granting an extension of time for any act automatically extends the time for all other acts that bear a time relation to it. When the appellant receives 30 more days for the initial brief, the appellee's 30-day period for the answer brief under Rule 9.210 runs from the new service date, without a separate motion.
• An order granting an extension of time to prepare the record, the index to the record, or the transcript extends the time for service of the appellant's initial brief. A late transcript does not force the appellant to brief a case without the testimony.

Tolling is not a license to wait. If the court denies the motion, it will often set a short new deadline, sometimes only a few days. Counsel should keep working on the brief while the motion is pending.

Worked Examples From a Third District Appeal

Example 1: First extension of the initial brief

A final judgment is entered in Miami-Dade Circuit Court and a notice of appeal is filed on Monday, March 3. Under Rule 9.110(f), the initial brief is due 70 days later, on Monday, May 12. On May 5, appellant's counsel confers with opposing counsel, who does not object, and serves a motion for a 30-day extension with the required certificate. Service of the motion tolls the May 12 deadline. The Third District grants the motion on May 9. The initial brief is now due June 11. The answer brief is due 30 days after service of the initial brief, and that date moves with it.

Example 2: A record delay

Same appeal, but the court reporter cannot finish a five-day trial transcript by the deadline in Rule 9.200. The reporter or the appellant moves for an extension of time to file the transcript. When the court grants it, Rule 9.300(b) extends the initial brief deadline as well. Counsel should still calendar the new brief date carefully, because the order may state a specific date rather than a number of days. Our page on the record on appeal under Rule 9.200 covers the transcript and record deadlines that generate these motions.

Example 3: The deadline falls on a weekend

Time under the appellate rules is computed according to Florida Rule of General Practice and Judicial Administration 2.514, as directed by Rule 9.420(e). If a computed deadline falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not one of those. Do not rely on this cushion when requesting an extension. Ask for a specific date.

Motions That Do Not Toll Time Under Rule 9.300(d)

Subdivision (d) lists motions that do not stop the clock. Filing one of these does not excuse a brief deadline that arrives while the motion is pending. The list includes:

• motions for post-trial release under Rule 9.140(h);
• motions for stay pending appeal under Rule 9.310, discussed on our page on stays pending appeal and supersedeas bonds;
• motions relating to oral argument under Rule 9.320;
• motions relating to joinder and substitution of parties under Rule 9.360;
• motions relating to amicus curiae under Rule 9.370;
• motions relating to attorneys' fees on appeal under Rule 9.400;
• motions relating to service under Rule 9.420;
• motions relating to admission or withdrawal of attorneys under Rule 9.440;
• motions to expedite the appeal;
• motions for mediation filed more than 30 days after the notice of appeal; and
• all motions filed in the Florida Supreme Court, unless accompanied by a separate request to toll time.

The last item catches many practitioners. A motion for extension in a district court tolls time by operation of the rule. The same motion in the Supreme Court does nothing to the schedule unless it includes a separate request that the court toll time.

Deadlines Rule 9.300 Cannot Move

Rule 9.300 governs deadlines within an appeal. It does not extend the deadline to start one. The 30-day period to file a notice of appeal from a final order under Rule 9.110(b) is jurisdictional, and no motion filed in the appellate court can extend it. The same is true of the 30-day period to invoke the Supreme Court's discretionary jurisdiction under Rule 9.120 and the 30-day period to appeal a non-final order under Rule 9.130. Those periods run from rendition, a defined term under Rule 9.020. If you are approaching one of these dates, file the notice; do not file a motion for extension. See our discussion of the Rule 9.110 30-day appeal deadline for the consequences of a late notice.

Emergency Motions Under Rule 9.300(c)

Rule 9.300(c) requires a party seeking emergency relief to give reasonable notice to all parties if practicable. In the Third District, an emergency motion should be labeled as such in its title and should explain concretely why ordinary motion practice, with its 15-day response period, is inadequate. Typical emergencies include imminent enforcement of a judgment where a stay has been denied below, a scheduled sale of real property, or a court-ordered deadline that will pass before the appeal can be decided. A motion that does not show genuine urgency may be treated as an ordinary motion.

What the Third District Expects in an Extension Motion

The rule requires grounds and argument, so a bare request for "additional time" is inadequate. A well-drafted motion in the Miami appellate court states:

1. the current deadline and the date requested;
2. the number of prior extensions, if any, and the total days previously granted;
3. the specific reason: record length, competing deadlines, counsel's trial schedule, or a recent substitution of counsel;
4. whether the case is expedited or involves a dependency or custody matter, where extensions are disfavored; and
5. the conferral certificate.

Courts grant first agreed extensions routinely. Second and third requests receive closer review, and the court may grant fewer days than requested or state that no further extensions will be granted. Requests to extend the reply brief draw more scrutiny than requests for the initial or answer brief. Our page on Rule 9.210 brief requirements covers the deadlines these motions most often address.

Other Motions Governed by Rule 9.300

Beyond extensions, Rule 9.300 supplies the format for motions to consolidate related appeals, to supplement or correct the record under Rule 9.200(f), to strike a brief or appendix, to relinquish jurisdiction to the trial court, to dismiss an appeal for lack of jurisdiction, and to withdraw as counsel. Each must state grounds, relief, argument, and authority. Each, except those in subdivision (d), tolls the schedule while pending. A motion to dismiss filed by an appellee, for example, stops the appellant's brief clock until the court rules on it.

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