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August 29, 2012

PRESERVATION OF ERROR FOR APPEAL

 

In order to preserve an error for appeal, a timely and appropriate objection must be made before the trial court. The only exception to this general rule is the doctrine of fundamental error.

An error that is so egregious and pervasive and so affects the fairness of the proceedings constitutes fundamental error and a basis for reversal even if not properly preserved. Trial counsel should not rely upon the doctrine of fundamental error, as it is subject to an extraordinarily high standard and Florida’s appellate courts are gradually moving away from the doctrine altogether.

In order for an objection to be timely and therefore preserved for appellate review, the objection must be made contemporaneously with the error. The objection must also be specific enough to inform the trial court of the alleged error. This is true even if there is a change in the law while a case is pending.

Another requirement is that there must be a ruling by the trial court. Without a ruling, there is nothing to correct on appeal.

Lastly, the objection must appear in the record. Without a transcript of the proceeding or a statement of the evidence or proceeding pursuant to Rule 9.200(b)(4), Fla. R. App. P., the appellate court will assume either no proper objection was made or the trial court’s factual findings are correct. It is the better practice to always have a court reporter present to transcribe the proceedings rather than attempt to re-create the evidence or proceeding later.

The appellant has the responsibility to create the record on appeal that will be reviewed by the appellate court. The record on appeal can contain only material that was presented to the trial court. An appellate court will not review evidence or testimony that was not presented at the trial court level.

Following these general requirements for the preservation of error will help create an appropriate record for appellate review and help avoid an argument of waiver. It is essential that a trial lawyer be aware of these general requirements at the trial court level so as to preserve an issue for appellate review.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

 

JLH/BRS/tsr

*This is a summary of an article that appeared in the October 2011 issue of The Briefs.