What is the Pardo Rule in Florida?

June 9, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, the Pardo rule – though little-known outside of legal circles – is a staple of law and the operation of the state’s court system. This article will discuss the Pardo rule’s origins and its application in criminal cases in Florida.

Florida has six District Courts of Appeal (DCAs) located throughout the state. These courts serve as intermediate appellate courts, hearing appeals from the circuit courts, which are the trial-level courts of general jurisdiction. A party dissatisfied with a circuit court decision may appeal to the appropriate DCA.

Above the DCAs is the Florida Supreme Court – whose decisions bind all lower Florida courts, including the DCAs and circuit courts. At the highest level is the United States Supreme Court, whose decisions on federal law and constitutional issues bind all courts in the United States, including Florida’s courts.

The Pardo rule is an outgrowth of the Florida Supreme Court’s ruling in Pardo v. State, 596 So. 2d 665 (Fla. 1992). The Pardo rule states that on legal issues of first impression, any District Court of Appeal decision as to that issue is binding on all Florida courts – until another DCA or higher court issues a contradictory ruling.

The dispute in Pardo surrounded the admission of child abuse statements under Fla. Stat 90.803(23) – Florida’s child hearsay exception. Before Pardo’s trial, the Fifth District Court of Appeal had ruled in Kopko that if a child testifies at trial, their prior (consistent) hearsay statements alleging acts of child abuse are inadmissible in court due to impermissible bolstering of witness testimony. 

The judge applied the 5th DCA’s ruling to Pardo’s case, despite the fact that the trial was not occurring in a county within the jurisdiction of the 5th DCA. On appeal, the Third District Court of Appeal reversed the ruling and permitted the introduction of the hearsay statements. The 3rd DCA reasoned that the statute allowed for the admission of prior consistent child hearsay if the statements qualified under the exception, independent of witness bolstering concerns.

But the 3rd DCA went farther, holding that since Pardo’s trial was not being held in a county covered by the 5th DCA, the trial judge erroneously applied the Kopko decision. In the wake of the 3rd DCA ruling against him, Pardo appealed to the Florida Supreme Court, noting that the 3rd DCA and 5th DCA’s rulings regarding the admissibility of the child hearsay were in conflict.

The Florida Supreme Court heard the appeal and ruled in Pardo’s favor, excluding the hearsay statements. However, the court also held that in the absence of other District Courts of Appeal or the Florida Supreme Court issuing decisions on this particular issue, the trial judge was correct to rely on Kopko to make his decision. Referring to the 3rd DCA, the Pardo majority wrote:

“Initially, we note that the district court erred in commenting that decisions of other district courts of appeal were not binding on the trial court. This Court has stated that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”

An example of the Pardo rule in action is the legal controversy surrounding whether the plain smell of marijuana is probable cause to search a vehicle in Florida. From 2021 to 2024, the only DCA that had addressed this was Florida’s Second District Court of Appeal. In Owens v. State, the 2nd DCA had held that the plain smell of marijuana was sufficient to establish probable cause to search an automobile. Owens v. State, 317 So.3d 1218 (Fla 2nd DCA 2021). 

Though the 2nd DCA only has jurisdiction over portions of Central and West Florida, the Owens decision bound all courts statewide under the Pardo rule. This is because, until 2024, the 2nd DCA had been the only DCA to rule on this particular legal question.

But in August 2024, the 5th DCA weighed in and reached the opposite conclusion. It ruled in Baxter v. State that due to the legal status of hemp in Florida – and given the indistinguishable smell of hemp and marijuana – the “plain smell” of marijuana alone no longer served as probable cause to search an automobile. Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024)

This placed the 5th DCA and 2nd DCA in conflict – meaning that Florida courts outside of both the 5th DCA and 2nd DCA may choose to follow either of these rules. However, trial courts within the 5th DCA’s jurisdiction must follow the rule that plain smell of marijuana is not probable cause (Baxter), while trial courts in the 2nd DCA remain bound to the opposite conclusion by Owens.

In sum, the Pardo rule is not well-known – but is a staple of Florida’s judicial system. It holds that on issues of first impression (issues which have not been addressed by any other DCA, nor the Florida or U.S. Supreme Courts), a DCA opinion on that issue binds all courts statewide. This is the case unless and until it is overruled by Florida or the U.S. Supreme Court – or another DCA issues a contradictory ruling.

In the event someone is arrested and charged in Florida, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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