District Courts of Appeal: Courts of Final Jurisdiction with Two New Responsibilities--An Expanded Power to Certify Questions and Authority to Sit En Banc
![handle is hein.journals/uflr35 and id is 86 raw text is: DISTRICT COURTS OF APPEAL: COURTS OF
FINAL JURISDICTION WITH TWO NEW
RESPONSIBILITIES -AN EXPANDED POWER TO
CERTIFY QUESTIONS AND AUTHORITY
TO SIT EN BANC
BEN F. OVERTON*
This article will address two important new responsibilities of the district
courts of appeal under the 1980 amendment to article V, section 3, of the
Florida Constitution and the new appellate rules.' The first is the expanded
authority of the district courts to certify questions to the supreme court, result-
ing in the district courts being a screening body for identifying important
issues for supreme court resolution.2 The second is the authority of the district
courts to sit en banc.3
Although the 1980 amendment was, and still is, criticized as unnecessarily
limiting the supreme court's jurisdiction, initial experience indicates that the
amendment has provided the supreme court with a more effective means of
addressing issues of jurisprudential significance and that the supreme court
actually wrote more opinions on the merits in 1981 than it did in previous
years under the prior constitutional provisions.4 Before specifically addressing
the district court's two new responsibilities, the history and purpose of Florida's
present appellate structure, as well as the functions of Florida's appellate courts,
should be reviewed.
When the district courts were created in 1957, they were intended to be
final appellate courts for most cases.5 By judicial decision, particularly Foley v.
Weaver Drugs,6 the district courts were largely reduced to the position of non-
final intermediate appellate courts. As a result, the district courts became
*Justice of the Supreme Court of Florida, 1974 to date (Chief Justice 1976-1978). B.S., 1949,
University of Florida; J.D., 1952.
1. See Fla. S. J. Res. 20-C (proposing the amendment to FLA. CONST. art. V, § 3(b)), re-
produced in appendix A.
2. FLA. CONST. art. V, § 3(b)(4), (5).
3. See FLA. R. App. P. 9.331.
4. A statistical comparison ot the years 1979 and 1981 was compiled from the records
of the Clerk of the Florida Supreme Court. These records were used to determine the
jurisdictional basis on which cases were filed with the supreme court and the disposition of
these cases. In 1979, 417 opinions were written on the merits; in 1981, 463 opinions were
written by the supreme court.
5. According to the Judicial Council of Florida Second Annual Report, (1955) at 3, [i]n
order to avoid any possibility that the creation of these courts would simply afford an
additional appeal, the Council thought that it was wise to have the jurisdiction of the Su-
preme Court clearly defined and restricted. Id.
6. 177 So. 2d 221 (Fla. 1965). In Foley, the Florida Supreme Court held that it may re-
view by conflict certiorari a per curiam judgment of affirmance without opinion where an
examination of the record proper discloses that the legal effect of such per curiam affirmance
is to create conflict with a decision of this court or another district court of appeal. Id. at 225.
Justice Thornal dissented in Foley, stating:](ViewImageLocal?handle=hein.journals/uflr35&div=11&collection=&method=preview&ext=.png&size=3)
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