Amendments to the Florida Rules of Appellate Procedure

We have for consideration The Florida Bar Appellate Rules Committee’s (Committee) quadrennial report of proposed rule changes filed in accordance with Florida Rule of Judicial Administration 2.130(c)(3). We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution. We have consolidated the Committee’s report with the file opened as a result of this Court’s initiation of proposed rule amendments designed to simplify criminal appeals from guilty pleas and appeals relating to sentencing errors.

The Committee proposed a new rule 9.100(f), which imposes additional requirements on proceedings in the circuit court which seek to invoke the jurisdiction of the circuit court described in rules 9.030(c)(2) and (c)(3) to the extent that the petition seeks review of judicial or quasi-judicial action. We agree with the Committee that this amendment will clarify when Florida Rule of Civil Procedure 1.630 applies and when rule 9.100 applies in the circuit court.

On December 21, 1995, this Court issued an opinion suggesting that scarce resources were being unnecessarily expended in appeals from guilty pleas and appeals relating to sentencing errors. Amendments to Florida Rules of Appellate Procedure 9.020(g) & 9.140(b) & Florida Rule of Criminal Procedure 3.800, No. 86,881 (Fla. Dec. 21, 1995). On our own motion, we proposed amendments to rule 9.020(g) and rule 9.140(b), as well as Florida Rule of Criminal Procedure 3.800. These amendments were designed to limit the record and the issues which could be raised on appeals from pleas of guilty and nolo contendere without reservation and to require that sentencing issues first be raised in the trial court.

As a consequence of our opinion, the Committee revised its recommendations to address our proposed amendments. With certain minor exceptions, the Committee concurred with the Court’s proposed amendments. However, the Committee proposed an additional provision which would provide a multi-faceted procedure in which a defendant could seek to have the trial court correct any sentencing error before it was considered by the appellate court by (1) raising the issue at the time of sentencing, (2) raising the issue by posttrial motion, or (3) raising the issue by “notice” in the appellate court, which would then send the issue to the trial court to rule on the issue first. The Committee gave several reasons for its proposal, including the concern that the requirement that all sentencing errors be raised in the trial court in oi’der to be considered on appeal would result in a substantial increase in the number of claims of ineffective assistance of counsel for failing to preserve sentencing errors.

While these matters were under consideration, the legislature enacted the “Criminal Appeal Reform Act of 1996” (the Act), which became effective on July 1, 1996. Ch. 96-248, § 4, Laws of Fla. Because certain provisions of the Act appeared to conflict with the current appellate rules, this Court requested and received comments from interested parties concerning the effect of the Act upon the rules and the proposed amendments.

Our attention has become focused upon those portions of the Act which created section 925.051, which provides in part as follows:

(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 contende-re 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 dis-positive issue, the defendant may not appeal the judgment or sentence.

In them comments, the Committee as well as public defenders and others contend that the provisions of the Act are procedural in nature and cannot override this Court’s Rules of Appellate Procedure. On the other hand, the Attorney General insists that the Act’s provisions are substantive and, therefore, controlling.

The United States Supreme Court has consistently pointed out that there is no federal constitutional right of criminal defendants to a direct appeal. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985) (“Almost a century ago the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors.”). Accord Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Moreover, in State v. Creighton, 469 So.2d 735 (Fla.1985), this Court stated that there was no right to appeal set forth in our state’s constitution. We reasoned that while our immediately preceding constitution provided that “appeals may be taken as a matter of right from all final judgments or decrees,” the 1972 revision to article V eliminated the constitutional right to appeal by altering the language to authorize “appeals, that may be taken as a matter of right, from final judgments or orders.”

However, the ' issue in Creighton was whether the State had a constitutional right to appeal. Furthermore, we did not consider in Creighton the fact that nowhere in the voluminous documents which reflect the history and intent of the 1972 revision of article V is there any suggestion that the revisers intended to remove from the constitution the right to appeal. Therefore, we now recede from Creighton to the extent that we construe the language of article V, section 4(b) as a constitutional protection of the right to appeal. However, we believe that the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants’ legitimate appellate rights. Of course, this Court continues to have jurisdiction over the practice and procedure relating to appeals.

Applying this rationale to the amendment of section 924.051(3), we believe the legislature could reasonably condition the right to appeal upon the preservation of a prejudicial error or the assertion of a fundamental error. Anticipating that we might reach such a conclusion, this Court on June 27, 1996, promulgated an emergency amendment designated as new Florida Rule of Criminal Procedure 3.800(b) to authorize the filing of a motion to correct a defendant’s sentence within ten days. Amendments to Florida Rule of Appellate Procedure 9.020(g) & Florida Rule of Criminal Procedure 3.800, 675 So.2d 1374 (Fla.1996). Because many sentencing errors are not immediately apparent at sentencing, we felt that this rule would provide an avenue to preserve sentencing errors and thereby appeal them. However, since our adoption of the emergency amendment, a number of parties have expressed the view that the ten-day period is too short. They say that because of the copying process in the clerk’s office or for other reasons, attorneys often do not timely receive copies of the sentencing orders. Others point out that as a result of the short time period, many public defenders are ordering expedited transcripts of the sentencing hearing at additional cost to the State. For these reasons, we have extended the time for filing motions to correct sentencing eiTors under rule 3.800(b) to thirty days.

The other issue immediately before us is the effect of the Act on the proposed rule on appeals from pleas of guilty or nolo contende-re without reservation. In Robinson v. State, 373 So.2d 898 (Fla.1979), this Court addressed the validity of section 924.06(3), Florida Statutes (1977), which read:

A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such defendant shall obtain review by means of collateral attack.

The Court agreed that the statute properly foreclosed appeals from matters which took place before the defendant agreed to the judgment of conviction. However, the Court held that there was a limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal. These included: (1) subject matter jurisdiction; (2) illegality of the sentence; (3) failure of the government to abide by a plea agreement; and (4) the voluntary intelligent character of the plea. Robinson, 373 So.2d at 902.

Section 924.051(b)(4) is directed to the same end but is worded slightly differently. Insofar as it says that a defendant who pleads nolo contendere or guilty without expressly reserving the right to appeal a legally dispositive issue cannot appeal the judgment, we believe that the principle of Robinson controls. A defendant must have the right to appeal that limited class of issues described in Robinson.

There remains, however, another problem. Section 924.051(b)(4) also states that a defendant pleading guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue cannot appeal the sentence. However, a defendant has not yet been sentenced at the time of the plea. Obviously, one cannot expressly reserve a sentencing error which has not yet occurred. By any standard, this is not a reasonable condition to the right to appeal. Therefore, we construe this provision of the Act to permit a defendant who pleads guilty or nolo contendere without reserving a legally dis-positive issue to nevertheless appeal a sentencing error, providing it has been timely preserved by motion to correct the sentence. See State v. lacovone, 660 So.2d 1371 (Fla.1995); Williams v. State, 492 So.2d 1051 (Fla.1986) (statutes will not be interpreted so as to yield an absurd result).

Accordingly, we have rewritten rule 9.140 to accomplish the objectives set forth above. Consistent with the legislature’s philosophy of attempting to resolve more issues at the trial court level, we are also promulgating Florida Rule of Criminal Procedure 3.170(Z), which authorizes the filing of a motion to withdraw the plea after sentencing within thirty days from the rendition of the sentence, but only upon the grounds recognized by Robinson or otherwise provided by law. The amendments to the Florida Rules of Criminal Procedure will be included in our four-year cycle amendments to those rules. We have'amended rule 9.020(h) to provide that a motion to withdraw the plea after sentencing will postpone rendition until its disposition. While we also received comments that other portions of the Act are inconsistent with the rules, we have determined to address on a case-by-case basis any of these issues which may arise.

In view of our decision in Davis v. State, 661 So.2d 1193 (Fla.1995), clarifying the definition of illegal sentences, we have provided in rules 9.140(b)(1)(D) and (c)(l)(J) that direct appeals may be taken from both illegal and unlawful sentences.

Pursuant to the Committee proposal, rule 9.140 as amended also permits a defendant to cross-appeal in certain cases when the State appeals a nonfinal order; incorporates the text of Florida Rule of Criminal Procedure 3.851, which deals with collateral relief after a death sentence has been imposed, into the appellate rules; permits parties in criminal cases to make their own copies of transcripts; returns belated appeal petitions to the appellate courts and places a two-year time limit on the filing of such petitions; and establishes new procedures for filing petitions for ineffective assistance of appellate counsel and imposes a two-year limitation on the filing of such petitions.

In response to this Court’s request, the Committee proposed rules to deal with the procedure for appeals in juvenile delinquency cases and for juvenile dependency and termination of parental rights cases. With minor modifications, we have adopted these proposals in rules 9.145 and 9.146.

On November 9, 1995, this Court adopted amendments to the Florida Rules of Workers’ Compensation Procedure which set forth the appellate jurisdiction with respect to workers’ compensation proceedings. In re Amendments to Florida Rules of Workers’ Compensation Procedure, 664 So.2d 945 (Fla.1995). Consistent with the theme that all rules dealing with appellate review should be contained in the Rules of Appellate Procedure, the Committee has streamlined the already approved workers’ compensation rules to avoid duplication with presently existing appellate rules and has incorporated the workers’ compensation appellate rules into proposed rule 9.180. Workers’ compensation is an area of the law that does necessitate certain procedural rules that are different from the general appellate rules. We therefore approve proposed rule 9.180.

The Committee recommended an amendment to rule 9.210(c) to permit appellees to file their own statements of case and facts, thereby eliminating the present rule requirement that appellees clearly specify the areas of disagreement with the statement of the case and facts of the appellants. This was the only recommendation of the Committee which the Board of Governors voted against adopting. Upon consideration, however, this Court has concluded to adopt the proposed amendment. We recognize that there are some instances in which it is difficult, if not impossible, for the appellee to intelligibly specify the areas of disagreement in the statement of the case and facts of the appellants. However, we encourage appellees not to rewrite the statement of case and facts except where clearly necessary.

In McFadden v. Fourth District Court of Appeal, 682 So.2d 1068 (Fla.1996), this Court adopted an emergency amendment to rule 9.430 concerning appeals by persons asserting their indigency. Judge Zehmer, on behalf of the First District Court of Appeal, filed a comment to the emergency amendment suggesting that its wording would cause that court procedural problems. As a consequence, on May 2, 1996, we retroactively stayed implementation of the emergency amendment. Thereafter, the Committee submitted a proposed substitute for our emergency amendment stating that it had been agreed upon by representatives of each of the district courts of appeal. Because it appears that the Committee’s solution gives each court the flexibility necessary to handle these matters, we have adopted the committee’s proposed amendment to rule 9.430.

The remaining amendments are self explanatory and received little or no adverse comment. We approve these amendments as submitted with only minor change.

Accordingly, the Florida Rules of Appellate Procedure are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The Committee Notes are offered for explanation only and are not adopted as an official part of the rules. The amendments set forth in the appendix shall become effective January 1, 1997, at 12:01 a.m.

It is so ordered.

KOGAN, C.J., and SHAW, GRIMES, HARDING and WELLS, JJ., concur.

ANSTEAD, J., concurs specially with an opinion, in which KOGAN, C.J. and SHAW, J., concur.

OVERTON, J., concurs in result only.

. As noted in Creighton, even during the period of 1956 to 1972 when there was no question that the right of appeal was protected by our constitution, we continued to recognize that the state’s right to appeal in criminal cases was governed by statute.