IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.140
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The Florida Supreme Court amended Rule 9.140 of the Florida Rules of Appellate Procedure to clarify that a defendant who pleads guilty or nolo contendere may appeal errors in the sentencing process, if preserved. The amendment resolves uncertainty created by the First District Court of Appeal's decision in Emerson v. State regarding the scope of appellable sentencing errors.
The Court amended Rule 9.140(b)(2)(A)(ii) to expressly enumerate that a defendant who pleads guilty or nolo contendere may appeal 'an error in the sentencing process, if preserved,' thereby clarifying that such appeals are permitted when the error is preserved.
[1] A defendant who pleads guilty or nolo contendere may appeal an error in the sentencing process, provided the error was preserved.
[2] Florida Rule of Appellate Procedure 9.140 has been amended to expressly allow appeals of preserved sentencing errors following a guilty or nolo contendere plea.
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Statement of the Court's holding regarding the scope of appellable issues after a guilty or nolo contendere plea
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Join FLexlaw to unlock all legal intelligenceThe First District Court of Appeal noted uncertainty in the application of Rule 9.140(b)(2)(A)(ii) regarding whether a defendant who pleads guilty or …
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9.140(b)(2)(A)(ii) then lists the appeals otherwise allowed when a defendant pleads guilty or nolo contendere, including “a sentencing error, if preserved.” The First District Court of Appeal in a thoughtful opinion has noted uncertainty over the application of rule 9.140(b)(2)(A)(ii) when a defendant, after pleading guilty or nolo contendere, seeks to appeal an error in the sentencing process. See *Emerson v. State*, 412 So. 3d 917 (Fla. 1st DCA 2025), review denied, No. SC2025-0974, 2025 WL 3686361 (Fla. Dec. 19, 2025). We now expressly enumerate “an error in the sentencing process, if preserved,” in the rule's list of appeals otherwise allowed. The Court hereby amends the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendment shall become effective June 1, 2026, at 12:01 a.m. Because the amendment was not published for comment previously, interested persons shall have 75 days from the date of this opinion in which to file comments with the Court.²
It is so ordered. MUÑIZ, C.J., and LABARGA, COURIEL, GROSSHANS, FRANCIS, SASSO, and TANENBAUM, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS AMENDMENT. Original Proceeding – Florida Rules of Appellate Procedure
APPENDIX RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES (a) [No Change] (b) Appeals by Defendant. (1) [No Change] (2) Guilty or Nolo Contendere Pleas. (A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows: (i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved. (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only: a. the lower tribunal's lack of subject matter jurisdiction; b. a violation of the plea agreement, if preserved by a motion to withdraw plea; c. an involuntary plea, if preserved by a motion to withdraw plea; d. a sentencing error, if preserved;-өғ e. an error in the sentencing process, if preserved; or ef. as otherwise provided by law.
(B) [No Change] (3)-(4) [No Change] (c)-(i) [No Change] Committee Notes [No Change] Court Commentary [No Change]
---FOOTNOTES--- [FOOTNOTE 1] We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also Fla. R. Gen. Prac. & Jud. Admin. 2.140(d). [FOOTNOTE 2] All comments must be filed with the Court on or before May 19, 2026, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399; no additional copies are required or will be accepted.