Important News | Terry's Takes

As of January 1, 2023, Florida has created a new district court of appeal, the SIXTH DCA, in the Tampa area. This is the first new DCA created since 1979. There have been changes to the boundaries of the First, Second, and Fifth DCAs, so only the Third and Fourth remain unchanged. A major change is that the east coast is carved out of the First DCA so that Jacksonville is now in the 5th DCA. The Second DCA is reduced to the greater Tampa Bay area, forfeiting the middle of the state from around Lakeland to Ft. Myers to the new 6th DCA. Seven new appellate judge seats were created. The new law:

decreases the number of appellate judges in the First District court from 15 to 13;
decreases the number of appellate judges in the Second District court from 16 to 15;
leaves the number of appellate judges in the Third District court at 10;
leaves the number of appellate judges in the Fourth District court at 12;
increases the number of appellate judges in the Fifth District court from 11 to 12;
provides the newly created Sixth District court with nine appellate judges.

Judges who reside within the jurisdiction of a different court from the one they served on in 2022 will be transferred to their newly-local DCA. There are eight judges affected by the change in territorial boundaries:

Judges Harvey L. Jay III and Scott Makar will move from the First District to the Fifth District;
Judge John K. Stargel will move from the Second District to the Sixth District; and
Judges Jay P. Cohen, Mary Alice Nardella, Meredith L. Sasso, Dan Traver, and Carrie Ann Wozniak move from the Fifth District to the Sixth District.

With these changes, there will be four vacancies to fill in the Fifth District and three vacancies to fill in the Sixth District.

For you practitioners in the new 6th DCA, what decisions are “binding?” The committee report suggests that the newly created Sixth District be controlled only by caselaw as established in rule of the Supreme Court. As Florida has no horizontal stare decisis, some action would be needed by either the Supreme Court or the Sixth District itself or there will be no binding precedent within that district. While a rule setting precedent for the new Sixth District court may be adopted, the territorial changes may prove more difficult for the trial courts and the practitioner to navigate. The Supreme Court has 2 clearly established that “decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [c]ourt.” And further “in the absence of inter-district conflict, district court decisions bind all Florida trial courts.” Trial courts must follow the decisions of the district court in which the trial court is located. If “the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court [is] required to follow that decision.” So for now, EVERY DCA opinion is binding on circuit courts within the Sixth DCA. If there’s a conflict, you’ll have to note that and use it as a basis to take a decision up on appeal.

Consider the Fourth Judicial Circuit, formerly housed in the First District and now housed in the Fifth District. Applying these principles, where there is conflict between the First District and the Fifth District, the law of the Fifth District will now control the trial court’s decision. If the Fifth District has not considered the issue, and there is First District precedent, the decision of the First District will still control. But if there no decision from the Fifth District, and there is conflict between the First District and another district, the trial court will be free to apply whichever “foreign” district’s precedent it chooses.

You also need to register with the eDCA portion of the new Sixth DCA website!! https://www.flcourts.gov/6DCA

Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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