Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators
FLORIDA RULES OF CIVIL PROCEDURE FOR INVOLUNTARY
COMMITMENT OF SEXUALLY VIOLENT PREDATORS
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
RULE 4.010. SCOPE AND TITLE OF RULES
RULE 4.030. NONVERIFICATION OF PLEADINGS
RULE 4.040. PARTIES
RULE 4.060. VENUE AND TRANSFERS OF ACTIONS
RULE 4.070. PROCESS
RULE 4.080. SERVICE AND FILING OF PLEADINGS, PAPERS, AND
DOCUMENTS
RULE 4.090. TIME
RULE 4.100. PLEADINGS AND MOTIONS
RULE 4.110. MOTIONS
RULE 4.200. APPOINTMENT OF COUNSEL
RULE 4.220. ADVERSARIAL PROBABLE CAUSE HEARING
RULE 4.240. TRIAL PROCEEDINGS AFTER FINDING OF
PROBABLE CAUSE; 5 DAY STATUS HEARING;
DETERMINATION OF COUNSEL FOR THE
RESPONDENT; WAIVER OF TIME LIMITATIONS
RULE 4.260. CONTINUANCE OF TRIAL
RULE 4.280. GENERAL PROVISIONS GOVERNING DISCOVERY
RULE 4.310. DEPOSITIONS UPON ORAL EXAMINATION
RULE 4.330. USE OF DEPOSITION IN COURT PROCEEDINGS
RULE 4.380. FAILURE TO MAKE DISCOVERY; SANCTIONS
RULE 4.390. DEPOSITIONS OF EXPERT WITNESSES
RULE 4.410. SUBPOENA
RULE 4.430. DEMAND FOR JURY TRIAL; WAIVER
RULE 4.431. TRIAL BY JURY
RULE 4.440. RULES OF PROCEDURE AND EVIDENCE
RULE 4.450. APPEAL
RULE 4.460. POST JUDGMENT HABEAS CORPUS
RULE 4.470. POST COMMITMENT PROCEEDINGS
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
Effective 07-09-2009: 13 So. 3d 1025. Initial adoption of rules.
OTHER OPINIONS
Effective Date Citation Description
Effective 10-1-12: 95 So.3d 96. Amended 4.090.
Effective 10-1-13: 118 So.3d 196. Amended 4.030, 4.080, 4.100, 4.440.
Effective 7-1-14: 140 So.3d 996. Amended 4.470.
Effective 10-1-22: 2022 WL 3650791 Amended 4.310.
RULE 4.010 cases. SCOPE AND TITLE OF RULES
These rules shall apply to all civil actions filed in the circuit
courts of the State of Florida pursuant to part V, chapter 394,
Florida Statutes. These rules shall be known as the Florida Rules
of Civil Procedure for Involuntary Commitment of Sexually Violent
Predators and abbreviated as Fla. R. Civ. P. – S.V.P.
RULE 4.030 cases. NONVERIFICATION OF PLEADINGS
Every pleading or other document of a party represented by an
attorney need not be verified or accompanied by an affidavit except
when otherwise specifically provided by these rules or an applicable
statute.
RULE 4.040 cases. PARTIES
The State of Florida shall be the petitioner in actions brought
under these rules. Any person who is alleged to be a sexually
violent predator shall be designated as the respondent.
RULE 4.060 cases. VENUE AND TRANSFERS OF ACTIONS
Venue for bringing a petition under Part V, chapter 394,
Florida Statutes, shall be (1) in the county where the respondent
was last charged and convicted of a qualifying offense; (2) if the
person has never been convicted of a qualifying offense in this state
but has been convicted of such an offense in another state or in
federal court, in the county where the person was last convicted of
any offense in this state; or (3) if the person is being confined in this
state pursuant to interstate compact and has a prior or current
conviction for a sexually violent offense, in the county where the
person plans to reside upon release or, if no residence in this state
is planned, in the county where the facility from which the person
to be released is located. If it should appear at any time that the
action is pending in the wrong county it may be transferred by
motion of any party or on motion by the court.
RULE 4.070 cases. PROCESS
(a) Issuance. The clerk of the court shall issue a summons,
a copy of the petition, any accompanying affidavits, and a copy of
the order finding probable cause to the respondent upon receipt of
an order finding probable cause signed by a circuit judge. The
summons shall direct the respondent to file an answer to the
petition within ten days after the date of service. The state attorney
shall serve a copy of the petition and related documents upon the
attorney appointed to represent the respondent pursuant to rule
4.080. The finding of probable cause shall not become effective
until the summons is returned served and filed with the clerk of the
court.
(b) Service; By Whom Made. The state attorney shall
electronically transmit a copy of the summons, petition, any
accompanying affidavits, and the order finding probable cause to
the person in charge of the facility in which the respondent is
confined. The person in charge of the facility shall serve a printed
copy of the summons, the petition, any accompanying affidavits,
and order finding probable cause on the respondent within 24
hours after receiving it and before the respondent is transferred to a
secure facility. The person in charge of the facility in which the
respondent is confined shall make a return on the summons within
24 hours after making service, by electronically confirming to the
state attorney that service has been made. The state attorney shall
file a printed copy of the return with the clerk, along with the
summons, on the first business day after receiving it. Additional
process may be issued as in other civil actions.
RULE 4.080 cases. SERVICE AND FILING OF PLEADINGS, PAPERS,
AND DOCUMENTS
(a) Service; When Required. Unless the court otherwise
orders, every pleading subsequent to the initial pleading and every
other document filed in the action, except applications for a witness
subpoena, shall be served on the opposing party.
(b) Service of Subsequent Pleadings Other Than Original
Petition; How Made. When service is required or permitted to be
made upon a party represented by an attorney, service shall be
made upon the attorney unless service upon the party is ordered by
the court. Service on the attorney or party shall be as required by
Fla. R. Jud. Admin. 2.516.
(c) Filing. All documents that are “court records” as defined
in the Florida Rules of Judicial Administration must be filed with
the clerk in accordance with Fla. R. Jud. Admin. 2.520 and 2.525.
(d) Deposit with the Clerk. Any paper document that is a
judgment or required by statute or rule to be sworn to or notarized
shall be filed and deposited with the clerk immediately thereafter.
The clerk shall maintain deposited original paper documents in
accordance with Fla. R. Jud. Admin. 2.430, unless otherwise
ordered by the court.
RULE 4.090 cases. TIME
(a) Computation. Computation of time shall be governed by
Florida Rule of Judicial Administration 2.514.
(b) Enlargement. When an act is required or allowed to be
done at or within a specified time by order of court, by these rules,
or by notice given thereunder, for cause shown, the court at any
time in its discretion (1) with or without notice, may order the
period enlarged if request therefor is made before the expiration of
the period originally prescribed or as extended by a previous order,
or (2) upon motion made and notice after the expiration of the
specified period, may permit the act to be done when failure to act
was the result of excusable neglect, but it may not extend the time
for making a motion for new trial, for rehearing, or to alter or
amend a judgment.
RULE 4.100 cases. PLEADINGS AND MOTIONS
(a) Pleadings. There shall be a petition and an answer to it.
The answer shall set forth any affirmative defense to the petition,
including the failure of the petition to state a cause of action. No
other pleadings shall be allowed. All pleadings shall comply with
the rules governing pleadings in other civil actions. (Rules 1.100
and 1.110, Fla. R. Civ. P.)
(b) Motions. An application to the court for an order shall
be by motion which shall be made in writing unless made during a
hearing or trial, shall state with particularity the grounds therefor,
and shall set forth the relief or order sought. The requirement of
writing is fulfilled if the motion is stated in a written notice of the
hearing of the motion. All notices of hearing shall specify each
motion or other matter to be heard.
(c) Caption. Every pleading, motion, order, judgment, or
other document shall have a caption containing the name of the
court, the uniform case number, the name of the party on each
side, and a designation identifying the party filing it and its nature
or the nature of the order, as the case may be. All documents filed
in the action shall be styled in such a manner as to indicate clearly
the subject matter of the paper and the party requesting or
obtaining relief.
RULE 4.110 cases. MOTIONS
(a) Motion for Summary Judgment. After the pleadings
and discovery are closed, but within such time as not to delay the
trial, any party may move for summary judgment. Summary
judgment practice shall be governed by Fla. R. Civ. P. 1.510.
(b) Motions to Dismiss. Motions directed to the sufficiency
of the petition shall be contained in the answer as an affirmative
defense.
(c) Motion for More Definite Statement. A respondent
may file a motion for a more definite statement which shall be
considered a motion for a statement of particulars in response to
the original petition. The motion shall disclose the defects in the
petition.
RULE 4.200 cases. APPOINTMENT OF COUNSEL
(a) Appointment of Attorney. The presiding judge shall
appoint an attorney to represent the respondent at the time an
order finding probable cause is entered. The appointment shall
continue until the court determines whether the respondent is not
entitled to court appointed counsel, private counsel represents the
respondent, or the respondent waives the right to counsel. Stand-
by counsel may be appointed if the respondent waives the right to
counsel.
(b) Waiver of Counsel. The court shall conduct a thorough
inquiry as set forth in Faretta v. California, 422 U.S. 406 (1975), in
the event the respondent requests self representation, and shall
consider appointment of stand-by counsel if the respondent
proceeds unrepresented.
RULE 4.220 cases. ADVERSARIAL PROBABLE CAUSE HEARING
(a) An adversarial probable cause hearing shall be held,
within 5 days after service of a demand upon the petitioner, if the
court determines that the failure to begin a trial in accordance with
the time provided in rule 4.240(a) is not the result of any delay
caused by the respondent and the time limitation to begin the
hearing has not been waived. The respondent may waive the
adversarial probable cause hearing in writing or on the record in
open court.
(b) An adversarial probable cause hearing shall be held,
within 5 days after service of a demand upon the petitioner, if the
respondent’s incarcerative sentence has expired and the respondent
has been transferred to the custody of the Department of Children
and Family Services.
(c) The court shall receive evidence, hear argument of the
attorneys, and determine whether probable cause exists to believe
that the person is a sexually violent predator at the adversarial
probable cause hearing.
(d) At the adversarial probable cause hearing, the
respondent has the right to:
(1) be represented by counsel;
(2) present testimony and other evidence;
(3) cross-examine any witnesses who testify against the
respondent; and
(4) view and copy all petitions and reports in the court
file.
(e) The court shall issue an Order of No Probable Cause and
release the respondent from custody if the evidence does not
establish probable cause to believe the respondent is a sexually
violent predator.
RULE 4.240 cases. TRIAL PROCEEDINGS AFTER FINDING OF
PROBABLE CAUSE; 5 DAY STATUS HEARING;
DETERMINATION OF COUNSEL FOR THE
RESPONDENT; WAIVER OF TIME LIMITATIONS
(a) The court shall conduct a status hearing within 5 days
after the summons is served. At the hearing, the court shall
determine if the respondent is entitled to court appointed counsel,
and appoint counsel if the respondent requests it. The respondent
shall be given a reasonable time to obtain private counsel if time is
requested for that purpose. A Faretta inquiry shall be conducted if
the respondent elects self representation. The trial to determine if
the respondent is a sexually violent predator shall be commenced
within 30 days after the summons has been returned served and
filed with the clerk of the court, unless the respondent waives the
30 day time period in writing, with a copy to the assigned judge, or
on the record in open court. The court shall set a trial date not less
than 90 days after the date of the waiver of the 30 day period.
Further continuances shall be allowed only on good cause shown.
A future trial date shall be set if a further continuance is allowed.
(b) The trial shall be to the court without a jury unless the
state attorney or the respondent files a demand for jury trial in
accordance with rule 4.430.
(c) The burden of proof for the judge or jury to determine if
the respondent is a sexually violent predator is clear and convincing
evidence.
(d) The court shall enter final judgment for the petitioner if
the jury unanimously finds the respondent to be a sexually violent
predator.
(e) The court shall declare a mistrial if the jury cannot reach
a unanimous verdict. The court shall poll the jury before it is
discharged to determine if at least four jurors would have found the
respondent to be a sexually violent predator.
(1) A re-trial shall be scheduled if at least four jurors
would have found the respondent to be a sexually violent predator.
The re-trial on the petition must commence within 90 days after the
date of the mistrial, unless the case is continued at the request of
the respondent for good cause. The court shall enter final judgment
for the respondent if the re-trial is not commenced within 90 days
from the date of the mistrial unless the respondent has waived the
time limit by receiving a continuance.
(2) If three or more jurors do not find that the
respondent is a sexually violent predator, the court shall enter a
final judgment in favor of the respondent.
RULE 4.260 cases. CONTINUANCE OF TRIAL
A motion for continuance by either party shall be in writing
unless made in a hearing in open court and shall be signed by the
party or attorney requesting the continuance. The motion shall
state all of the facts that the movant contends entitles the movant
to a continuance. If a continuance is sought on the ground of non-
availability of a witness, the motion must show when the witness
will be available. The trial may be continued once upon the request
of either party for not more than 120 days upon a showing of good
cause, or by the court on its own motion in the interests of justice,
when the person will not be substantially prejudiced. No additional
continuances may be granted unless the court finds that a manifest
injustice would otherwise occur. Continuances should only be
ordered upon a showing of good cause. A motion for continuance
on behalf of the respondent shall state that the respondent has
been advised of all consequences of the request and of any rights
waived by the motion.
RULE 4.280 cases. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery methods. Parties may obtain discovery by
one or more of the following methods: depositions upon oral
examination; production of documents or things for inspection and
other purposes; and physical and mental examinations.
(b) Scope of Discovery. Unless otherwise limited by order
of the court in accordance with these rules, the scope of discovery is
as follows:
(1) In General. Parties may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter of
the pending action, whether it relates to the claim or defense of the
party seeking discovery, including the existence, description,
nature, custody, condition, and location of any books, documents,
or other tangible things and the identity and location of persons
having knowledge of any discoverable matter. It is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence.
(2) Trial Preparation: Materials. Subject to the
provisions of subdivision (b)(1) of this rule, a party may obtain
discovery of documents and tangible things otherwise discoverable
under subdivision (b)(1) of this rule and prepared in anticipation of
litigation for trial only upon a showing that the party seeking
discovery has need of the materials in the preparation of the case
and is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of
the materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
(3) Trial Preparation.
(A) (i) The state attorney bringing the action
shall disclose the names and addresses of all witnesses to be called
by the petitioner to testify at trial at the time of the filing of the
petition. The respondent shall disclose the names and addresses of
all witnesses to be called by the respondent at trial at the time of
filing the answer to the petition. The list of witnesses may be
amended without leave of court until ten days prior to trial.
Thereafter, the witness lists may be amended by leave of court.
(ii) The witness list shall include the names
and addresses of expert witnesses. A copy of all reports made by
experts shall be disclosed as soon as they are received. An expert
may be required to produce financial and business records only
under the most unusual or compelling circumstances and may not
be compelled to compile or produce nonexistent documents. Upon
motion, the court may order further discovery by other means,
subject to such restrictions as to scope and other provisions
pursuant to subdivision (b)(1) of this rule concerning fees and
expenses as the court may deem appropriate.
(iii) The state attorney shall provide the
respondent with copies of case reports, depositions, witness
statements and other records regarding the respondent’s prior
criminal history and confinement, and any other document or
material reviewed and relied upon by the multidisciplinary team in
evaluating the respondent, within ten days after the summons has
been returned served and filed with the clerk of the court.
(B) A party may discover facts known or opinions
held by an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for trial,
and who is not expected to be called as a witness at trial, only upon
a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
(C) Expert witnesses shall be paid a reasonable fee
for time spent responding to discovery under subdivision (b)(3)(A)
and (b)(3)(B) of this rule unless a manifest injustice would result.
Respondents who are not indigent may be required to pay for
discovery obtained under (b)(3)(A) and shall be responsible for
discovery obtained under (b)(3)(B). The state attorney and indigent
respondents shall apply for compensation for experts in the manner
prescribed by law.
(4) Claims of Privilege or Protection of Trial
Preparation Materials. When a party withholds information
otherwise discoverable under these rules by claiming that it is
privileged or subject to protection as trial preparation material, the
party shall make the claim expressly and shall describe the nature
of the documents, communications, or things not produced or
disclosed in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the
applicability of the privilege or protection. Attorney work product
claims and preparation for trial privilege claims shall be allowed.
(c) Protective Orders. Upon motion by a party, or by the
person from whom discovery is sought, and for good cause shown,
the court may make any order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense that justice requires, including one or more of the
following:
(1) the discovery not be had;
(2) the discovery may be had only on specified terms
and conditions, including a designation of the time or place;
(3) the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery;
(4) certain matters not be inquired into, or that the
scope of the discovery be limited to certain matters;
(5) the discovery be conducted with no one present
except persons designated by the court;
(6) a deposition after being sealed be opened only by
order of the court; and
(7) the parties simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as
directed by the court. If the motion for a protective order is denied
in whole or in part, the court may, on such terms and conditions as
are just, order that any party or person provide or permit discovery.
(d) Sequence and Timing of Discovery. Except as provided
in subdivision (b)(1) or unless the court upon motion for the
convenience of parties and witnesses and in the interest of justice
orders otherwise, methods of discovery may be used in any
sequence, and the fact that a party is conducting discovery,
whether by deposition or otherwise, shall not delay any other
party’s discovery.
(e) Supplementing of Responses. A party who has
responded to a request for discovery with a response that was
complete when made is under a continuing duty to supplement the
response to include information thereafter acquired. This provision
shall apply to the reciprocal discovery obligation of the petitioner
and the respondent to reveal witnesses’ names and addresses on a
continuing basis. The court shall inquire into all claims of failure to
disclose and rule appropriately as to duties to disclose and as to
sanctions.
RULE 4.310 cases. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. Any party may take
the testimony of any person, including the respondent, by
deposition upon oral examination after the action is commenced.
The attendance of witnesses may be compelled by subpoena as
provided in Fla. R. Civ. P. 1.410. Unless a provision of this rule
conflicts with the Florida Rules of Civil Procedure, the procedure for
taking the deposition shall be the same as that provided in the
Florida Rules of Civil Procedure. The deposition of a person in
custody, except the respondent, may be taken only by leave of court
on such terms as the court prescribes.
(b) Notice; Court Orders; Visual Recording and
Photographs at Depositions; Telephonic Depositions.
(1) A party desiring to take the deposition of any person
upon oral examination must give reasonable notice in writing to
every party to the action. The notice must state the time and place
for taking the deposition and the name and address of each person
to be examined. If a subpoena duces tecum is to be served on the
person to be examined, the designation of the materials to be
produced under the subpoena must be attached to or included in
the notice.
(2) To protect deponents and the rights of the parties
and to ensure compliance with statutes, the court may enter orders,
including but not limited to the orders allowed by rule 4.280(c) and
rule 4.310(d), upon motion of a party, the deponent, or on its own
motion, for good cause shown.
(3) For deponents 18 years of age or older, a discovery
deposition must not be visually recorded unless ordered by the
court for good cause shown or upon the consent of the parties and
the deponent. For deponents less than 18 years of age, a discovery
deposition must be audio-visually recorded unless otherwise
ordered by the court. No deponent may be photographed during a
discovery deposition.
(4) On motion, the court may order that the testimony
at a deposition be taken by telephone. The order may prescribe the
manner in which the deposition will be taken. A party may also
arrange for a stenographic transcription at that party’s own initial
expense.
(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections. Examination and cross-
examination of witnesses may proceed as permitted at trial. The
officer before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by someone acting under
the officer’s direction, and in the officer’s presence, record the
testimony of the witness, except that when a deposition is taken by
telephone, the witness shall be sworn by a person present with the
witness who is qualified to administer the oath in that location. The
testimony shall be taken stenographically or recorded by any means
ordered in accordance with subdivision (b). If requested by one of
the parties, the testimony shall be transcribed at the initial cost of
the requesting party and prompt notice of the request shall be given
to all other parties. All objections made at the time of the
examination to the qualifications of the officer taking the deposition,
the manner of taking it, the evidence presented, or the conduct of
any party, and any other objection to the proceedings shall be noted
by the officer upon the deposition. Any objection during a
deposition shall be stated concisely and in a non-argumentative
and non-suggestive manner. A party may instruct a deponent not
to answer only when necessary to preserve a privilege, to enforce a
limitation on evidence directed by the court, or to present a motion
under subdivision (d). Otherwise, evidence objected to shall be
taken subject to the objections.
(d) Motion to Terminate or Limit Examination. At any
time during the taking of the deposition, on motion of a party or of
the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party, or that
objection and instruction to a deponent not to answer are being
made in violation of rule 4.310(c), the court in which the action is
pending or the circuit court where the deposition is being taken
may order the officer conducting the examination to cease forthwith
from taking the deposition or may limit the scope and manner of
the taking of the deposition under rule 4.280(c). If the order
terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon
demand of any party or the deponent, the taking of the deposition
shall be suspended for the time necessary to make a motion for an
order.
(e) Witness Review. A transcript of the testimony shall be
furnished to the witness for examination and shall be read to or by
the witness unless the witness cannot be found or the examination
and reading are waived by the witness and the parties. Any
changes in form or substance that the witness wants to make shall
be listed in writing by the officer with a statement of the reasons
given by the witness for making the changes. The changes shall be
attached to the transcript. It shall then be signed by the witness
unless the parties waived the signing or the witness refuses to sign.
Transcripts that are not signed by the witness after being made
available for a reasonable time shall be signed by the officer, who
shall state on the transcript the reason why the witness did not sign
it, such as waiver, illness, absence, or refusal to sign. The
deposition may then be used as fully as though signed unless a
motion to suppress the deposition, or part of it, is made with
reasonable promptness after the defect is, or with due diligence
might have been, discovered and the court holds that the reasons
given for the refusal to sign require rejection of the deposition
wholly or partly.
(f) Filing; Exhibits.
(1) If the deposition is transcribed, the officer shall
certify on each copy of the deposition that the witness was duly
sworn by the officer and that the deposition is a true record of the
testimony given by the witness. Documents and things produced
for inspection during the deposition shall be marked for
identification and annexed to and returned with the deposition
upon the request of a party, and may be inspected and copied by
any party except that the person producing the materials may
substitute copies to be marked for identification if that person
affords to all parties fair opportunity to verify the copies by
comparison with the originals. If the person producing the
materials requests their return, the officer shall mark them, give
each party an opportunity to inspect and copy them, and return
them to the person producing them and the materials may then be
used in the same manner as if annexed to and returned with the
deposition.
(2) The officer shall furnish a copy of the deposition to
any party, or to the deponent, upon payment of reasonable charges.
The cost of transcripts ordered by the state attorney or an indigent
respondent shall be paid in the manner prescribed by law.
(3) A copy of a deposition may be filed only under the
following circumstances:
(A) It may be filed by a party or the witness when
the contents of the deposition must be considered by the court on
any matter pending before the court. Prompt notice of the filing on
the deposition shall be given to all parties unless notice is waived.
A party filing the deposition shall furnish a copy of the deposition or
the part being filed to other parties unless the party already has a
copy.
(B) The court may order a copy of the deposition
be filed by any party if the deposition is necessary to decide a
matter pending before the court.
(g) Obtaining Copies. A party or witness who does not have
a copy of the deposition may obtain it from the officer taking the
deposition unless the court orders otherwise. If the deposition is
obtained from a person other than the officer, the reasonable cost of
reproducing the copies shall be paid to the person by the requesting
party or witness.
RULE 4.330 cases. USE OF DEPOSITION IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a
deposition may be used against any party who was present or
represented at the taking of the deposition or who had reasonable
notice of it so far as admissible under the rules of evidence applied
as though the witness were then present and testifying in
accordance with any of the following provisions:
(1) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony of the
deponent as a witness or for any purpose permitted by the Florida
Evidence Code.
(2) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court finds:
(A) the witness is dead;
(B) the witness is at a greater distance than 100
miles from the place of trial or hearing, or is out of the state, unless
it appears that the absence of the witness was procured by the
party offering the deposition;
(C) the witness is unable to attend or testify
because of age, illness, infirmity, or imprisonment;
(D) the party offering the deposition has been
unable to procure the attendance of the witness by subpoena;
(E) upon application and notice, that such
exceptional circumstances exist as to make it desirable, in the
interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to allow
the deposition to be used; or
(F) the witness is an expert or skilled witness.
(3) If only part of a deposition is offered in evidence by
a party, an adverse party may require the party to introduce any
other part that in fairness ought to be considered with the part
introduced, and any party may introduce any other parts.
(b) Objections to Admissibility. Subject to the provisions
of rule 4.310(c), objection may be made at the trial or hearing to
receiving in evidence any deposition or part of it for any reason that
would require the exclusion of the evidence if the witness were then
present and testifying.
(c) Effect of Taking or Using Depositions. A party does
not make a person the party’s own witness for any purpose by
taking the person’s deposition. The introduction in evidence of the
deposition or any part of it for any purpose other than that of
contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition under
subdivision (a) of this rule. At the trial or hearing any party may
rebut any relevant evidence contained in a deposition whether
introduced by that party or by any other party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the
notice for taking deposition are waived unless a written objection is
promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to
taking a deposition because of disqualification of the officer before
whom it is to be taken is waived unless the objection is made before
the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence.
RULE 4.380 cases. FAILURE TO MAKE DISCOVERY; SANCTIONS
(a) Motion for Order Compelling Discovery. A party may
apply for an order compelling discovery upon reasonable notice to
the other party and all persons affected, as follows:
(1) Motion. If a deponent fails to answer a question
propounded or submitted under rule 4.310, fails to respond that
the examination will be permitted as requested, or fails to submit to
or to produce a person in that party’s custody or legal control for
examination, the discovering party may move for an order
compelling an answer, or a designation or an order compelling
inspection, or an order compelling an examination in accordance
with the request. The motion must include a certification that the
movant, in good faith, has conferred or attempted to confer with the
person or party failing to make the discovery in an effort to secure
the information or material without court action. When taking a
deposition on oral examination, the proponent of the question may
complete or adjourn the examination before applying for an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a
motion made pursuant to rule 4.280(c).
(2) Evasive or Incomplete Answer. For purposes of
this subdivision an evasive or incomplete answer shall be treated as
a failure to answer.
(b) Failure to Comply with Order.
If a deponent fails to be sworn or to answer a question
after being directed to do so by the court, the failure may be
considered a contempt of the court, or, if the deponent is a party,
the court may enter any of the following orders:
(1) an order that the matters regarding which of the
questions were asked or any other designated facts shall be taken
to be established for the purposes of the action in accordance with
the claim of the party obtaining the order;
(2) an order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting that
party from introducing designated matters in evidence;
(3) an order striking out pleadings or parts of them or
staying further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part of it, or rendering a judgment
by default against the disobedient party;
(4) instead of any of the foregoing orders or in addition
to them, an order treating as a contempt of court the failure to obey
any orders except an order to submit to an examination made
pursuant to rule 4.360(b)(2); or
(5) an order imposing the sanctions listed in paragraph
(1), (2), or (3) of this subdivision if the respondent fails to submit to
an examination as ordered.
RULE 4.390 cases. DEPOSITIONS OF EXPERT WITNESSES
(a) Definition. The term “expert witness” as used herein
applies exclusively to a person duly and regularly engaged in the
practice of a profession who holds a professional degree from a
university or college and has had special professional training and
experience, or one possessed of special knowledge or skill about the
subject upon which called to testify.
(b) Procedure. The testimony of an expert or skilled witness
may be taken at any time before the trial in accordance with the
rules for taking depositions and may be used at trial, regardless of
the place of residence of the witness or whether the witness is
within the distance prescribed by rule 4.330(a)(2)(B). No special
form of notice need be given that the deposition will be used for
trial.
(c) Fee. An expert or skilled witness whose deposition is
taken shall be allowed a witness fee in such reasonable amount as
the court may determine. The court shall also determine a
reasonable time within which payment must be made, if the
deponent and party cannot agree. All parties and the deponent
shall be served with notice of any hearing to determine the fee.
(d) Applicability. Nothing in this rule shall prevent the
taking of any deposition as otherwise provided by law.
RULE 4.410 cases. SUBPOENA
(a) Subpoena Generally. Subpoenas for testimony before
the court, subpoenas for production of tangible evidence, and
subpoenas for taking depositions may be issued by the clerk of
court or by any attorney of record in an action.
(b) Subpoena for Testimony before the Court. Every
subpoena for testimony before the court shall be issued by an
attorney of record in an action or by the clerk under the seal of the
court and shall state the name of the court and the title of the
action and shall command each person to whom it is directed to
attend and give testimony at a time and place specified in it. On
oral request of an attorney or party and without praecipe, the clerk
shall issue a subpoena for testimony before the court or a subpoena
for the production of documentary evidence before the court signed
and sealed but otherwise in blank, both as to the title of the action
and the name of the person to whom it is directed, and the
subpoena shall be filled in before service by the attorney or party.
(c) For Production of Documentary Evidence. A
subpoena may also command the person to whom it is directed to
produce the books, papers, documents, or tangible things
designated therein, but the court, upon motion made promptly and
in any event at or before the time specified in the subpoena for
compliance therewith, may:
(1) quash or modify the subpoena if it is unreasonable
and oppressive, or
(2) condition denial of the motion upon the
advancement by the person in whose behalf the subpoena is issued
of the reasonable cost of producing the books, papers, documents,
or tangible things. A party seeking production of evidence at trial
which would be subject to a subpoena may compel such production
by serving a notice to produce such evidence on an adverse party as
provided in rule 4.070(b). Such notice shall have the same effect
and be subject to the same limitations as a subpoena served on the
party.
(d) Service. A subpoena may be served by any person
authorized by law to serve process or by any other person who is
not a party and who is not less than 18 years of age. Service of a
subpoena upon a person named therein shall be made as provided
by law. Proof of such service shall be made by affidavit of the
person making service if not served by an officer authorized by law
to do so.
(e) Subpoena for Taking Depositions.
(1) Filing a notice to take a deposition as provided in
rule 4.310(b) with a certificate of service on it showing service on all
parties to the action constitutes an authorization for the issuance of
subpoenas for the persons named or described in the notice by the
clerk of the court in which the action is pending or by an attorney of
record in the action. The subpoena may command the person to
whom it is directed to produce designated books, papers,
documents, or tangible things that constitute or contain evidence
relating to any of the matters within the scope of the examination
permitted by rule 4.280(b), but in that event the subpoena will be
subject to the provisions of rule 4.280(c) and subdivision (c) of this
rule. Within 10 days after its service, or on or before the time
specified in the subpoena for compliance if the time is less than 10
days after service, the person to whom the subpoena is directed
may serve written objection to inspection or copying of any of the
designated materials. If objection is made, the party serving the
subpoena shall not be entitled to inspect and copy the materials
except pursuant to an order of the court from which the subpoena
was issued. If objection has been made, the party serving the
subpoena may move for an order at any time before or during the
taking of the deposition upon notice to the deponent.
(2) A person may be required to attend an examination
only in the county wherein the person resides or is employed or
transacts business in person or at such other convenient place as
may be fixed by an order of court.
(f) Contempt. Failure by any person without adequate
excuse to obey a subpoena served upon that person may be deemed
contempt of the court from which the subpoena issued.
(g) Subpoena of Minor. Any minor subpoenaed for
testimony shall have the right to be accompanied by a parent or
guardian at all times during the taking of testimony
notwithstanding the invocation of the rule of sequestration of
section 90.616, Florida Statutes, except upon a showing that the
presence of a parent or guardian is likely to have a material,
negative impact on the credibility or accuracy of the minor’s
testimony, or that the interests of the parent or guardian are in
actual or potential conflict with the interests of the minor.
RULE 4.430 cases. DEMAND FOR JURY TRIAL; WAIVER
(a) Right Preserved. The right of trial by jury as declared
by the constitution or by statute shall be preserved to the parties
inviolate.
(b) Waiver of Jury Trial; Demand. The trial shall be before
the court without a jury unless the petitioner files a demand for
jury trial with the petition or the respondent files such a demand
with the answer.
(c) Late Demand for Jury Trial. If waived, a jury trial may
not be granted without the consent of the parties, but the court
may allow an amendment in the proceedings to demand a trial by
jury or order a trial by jury on its own motion.
RULE 4.431 cases. TRIAL BY JURY
(a) Number of Jurors.
(1) The jury shall be composed of six persons.
(2) The court may direct that 1 or more jurors be
impaneled to sit as alternate jurors in addition to the regular panel.
Alternate jurors shall replace jurors who have become unable or
disqualified to perform their duties, in the order in which they are
called, before the jury retires to consider its verdict. Alternate
jurors shall be drawn in the same manner, have the same
qualifications, be subject to the same examination, take the same
oath, and have the same functions, powers, facilities, and privileges
as principal jurors. An alternate juror who does not replace a
principal juror shall be discharged when the jury retires to consider
the verdict.
(3) If alternate jurors are called, each party shall be
entitled to one peremptory challenge in the selection of each
alternate juror. Additional peremptory challenges allowed pursuant
to this subdivision may be used only against the alternate jurors.
The peremptory challenges allowed pursuant to subdivision (d) of
this rule shall not be used against the alternate jurors.
(b) Questionnaire. The circuit court may require
prospective jurors to complete a questionnaire in the form approved
by the Supreme Court of Florida to assist in selecting prospective
jurors. The questionnaire shall be used after the names of jurors
have been selected as provided by law but before certification and
the placing of the names of prospective jurors in the jury box.
(c) Examination by Parties. The parties have the right to
examine jurors orally on their voir dire. The order in which the
parties may examine each juror shall be determined by the court.
The court may ask such questions of the jurors as it deems
necessary, but the right of the parties to conduct a reasonable
examination of each juror orally shall be preserved.
(d) Juror List. Upon request, any party shall be furnished
by the clerk of the court with a list containing names and addresses
of prospective jurors summoned to try the case together with copies
of all jury questionnaires returned by the prospective jurors.
(e) Challenge to the Panel. The state or defendant may
challenge the panel. A challenge to the panel may be made only on
the ground that the prospective jurors were not selected or drawn
according to law. Challenges to the panel shall be made and
decided before any individual juror is examined, unless otherwise
ordered by the court. A challenge to the panel shall be in writing
and shall specify the facts constituting the ground of the challenge.
Challenges to the panel shall be tried by the court. Upon the trial
of a challenge to the panel the witnesses may be examined on oath
by the court and may be so examined by either party. If the
challenge to the panel is sustained, the court shall discharge the
panel. If the challenge is not sustained, the individual jurors shall
be called.
(f) Oath for Voir Dire. The prospective jurors shall be
sworn collectively or individually, as the court may decide. The
form of oath shall be as follows:
“Do your solemnly swear (or affirm) that you
will answer truthfully all questions asked of
you as prospective jurors, so help you God?”
If any prospective juror affirms, the clause “so help you God” shall
be omitted.
(g) Examination. The court may then examine each
prospective juror individually or may examine the prospective jurors
collectively. Counsel for both the state and defendant shall have
the right to examine jurors orally on their voir dire. The order in
which the parties may examine each juror shall be determined by
the court. The right of the parties to conduct an examination of
each juror orally shall be preserved.
(h) Prospective Jurors Excused. If, after the examination
of any prospective juror, the court is of the opinion that the juror is
not qualified to serve as a trial juror, the court shall excuse the
juror from the trial of the cause. If, however, the court does not
excuse the juror, either party may then challenge the juror, as
provided by law or by these rules.
(i) Time for Challenge. The state or defendant may
challenge an individual prospective juror before the juror is sworn
to try the cause; except that the court may, for good cause, permit a
challenge to be made after the juror is sworn, but before any
evidence is presented.
(j) Exercise of Challenge. On the motion of any party, all
challenges shall be addressed to the court outside the hearing of
the jury panel in a manner selected by the court so that the jury
panel is not aware of the nature of the challenge, the party making
the challenge, or the basis of the court’s ruling on the challenge, if
for cause.
(k) Manner of Challenge. A challenge to an individual juror
may be oral. When a juror is challenged for cause the ground of the
challenge shall be stated.
(l) Determination of Challenge for Cause. The court shall
determine the validity of a challenge of an individual juror for
cause. In making such determination the juror challenged and any
other material witnesses, produced by the parties, may be examined
on oath by either party. The court may consider also any other
evidence material to such challenge
(m) Number of Challenges. Each party shall be allowed
three peremptory challenges.
(n) Alternate Jurors. If 1 or 2 alternate jurors are called,
each party is entitled to 1 peremptory challenge, in addition to
those otherwise allowed by law, for each alternate juror so called.
The additional peremptory challenge may be used only against the
alternate juror and the other peremptory challenges allowed by law
shall not be used against the alternate juror.
(o) Additional Challenges. The trial judge may exercise
discretion to allow additional peremptory challenges when
appropriate.
(p) Oath of Trial Jurors. The following oath shall be
administered to the jurors:
“Do you solemnly swear (or affirm) that you
will well and truly try the issues between the
State of Florida and the respondent and render
a true verdict according to the law and the
evidence, so help you God?”
If any juror affirms, the clause “so help you God” shall be omitted.
(q) Interview of a Juror. A party who believes that grounds
for legal challenge to a verdict exist may move for an order
permitting an interview of a juror or jurors to determine whether
the verdict is subject to the challenge. The motion shall be served
within 10 days after rendition of the verdict unless good cause is
shown for the failure to make the motion within that time. The
motion shall state the name and address of each juror to be
interviewed and the grounds for challenge that the party believes
may exist. After notice and hearing, the trial judge shall enter an
order denying the motion or permitting the interview. If the
interview is permitted, the court may prescribe the place, manner,
conditions, and scope of the interview.
RULE 4.440 cases. RULES OF PROCEDURE AND EVIDENCE
(a) In all commitment proceedings initiated under part V,
chapter 394, Florida Statutes and this rule, the following applies:
(1) The Florida Rules of Civil Procedure and Florida
Rules of Judicial Administration apply unless otherwise superseded
by these rules.
(2) The Florida Rules of Evidence apply unless
superseded by these rules.
(3) The psychotherapist-patient privilege under section
90.503, Florida Statutes, does not apply to any communication
relevant to an issue pertaining to an involuntary civil commitment
proceeding.
(4) Evidence of prior behavior by the person subject to
the proceedings, if relevant to prove the person is a sexually violent
predator, may be considered by the judge or jury.
(5) Hearsay evidence, including reports of the
multidisciplinary team or reports prepared on behalf of the
multidisciplinary team, is admissible unless the trial judge finds
that the evidence is not reliable. However, hearsay evidence may
not serve as the sole basis for the involuntary civil commitment of a
person subject to the proceedings.
(b) No rule adopted by the Department of Children and
Family Services pursuant to section 394.930, Florida Statutes, as
amended, shall constitute (1) an evidentiary predicate for the
admission of any testimony of physical evidence; (2) a basis for
excluding or limiting the presentation of any testimony or physical
evidence; or (3) elements of the cause of action the state must allege
or prove, in any proceeding initiated under part V, chapter 394
Florida Statutes, and these rules.
(c) The failure of either party to comply with these rules does
not constitute a defense in any proceedings initiated under part V,
chapter 394, Florida Statutes.
RULE 4.450 cases. APPEAL
(a) An appeal to review a final judgment shall be pursuant
Rule 9.110, Florida Rules of Appellate Procedure, as amended.
(b) An indigent respondent who requests the appointment of
counsel for appeal must file an affidavit to establish entitlement to
the appointment. The public defender of the circuit in which the
respondent was determined to be a sexually violent predator shall
be appointed to represent an indigent respondent on appeal. The
public defender may request the public defender who handles
criminal appeals to represent a respondent as provided in section
27.51(4), Florida Statutes.
RULE 4.460 cases. POST JUDGMENT HABEAS CORPUS
The respondent may file a petition for habeas corpus alleging
ineffective assistance of counsel in the county in which the
judgment was rendered within two years after the judgment
becomes final. All other habeas corpus petitions, including
petitions filed pursuant to section 394.9215(1)(a), Florida Statutes,
must be filed in the county where the facility in which the petitioner
is confined is located. Habeas corpus proceedings brought under
this rule shall be governed by Fla. R. Crim. P. 3.850.
RULE 4.470 cases. POST COMMITMENT PROCEEDINGS
(a) A respondent committed after a trial shall be entitled to
examination of his or her mental condition at least one time each
year. Examinations may be ordered more frequently at the
discretion of the court.
(b) The respondent may retain, or if indigent, the court may
appoint, a qualified professional to conduct the examination. The
examiner shall be given access to all records concerning the
respondent.
(c) The report stating the result of any examination
conducted pursuant to paragraph (a) or (b) shall be provided to the
court for review.
(d) A respondent who receives written notice of the
examination, and waives his or her rights to confidentiality of the
result, and who petitions the court over the objection of the director
of the facility where the respondent is housed, has the right to a
hearing limited to determining whether probable cause exists to
believe the respondent’s condition has so changed, that it is safe for
the respondent to be at large, and that the respondent will not
engage in acts of sexual violence if discharged. Both the state
attorney and the respondent may present evidence. The respondent
has the right to be represented by counsel and the right to be
present at the hearing.
(e) If it is determined that there is sufficient probable cause
to believe it is safe to release the person, the court shall set the
petition for a non-jury trial.
(f) The state attorney shall have the right to have the person
examined by professionals chosen by the state prior to the trial.
(g) The burden is on the state to prove, by clear and
convincing evidence, that it is not safe for the person to be at large
and that, if released, the person is likely to engage in acts of sexual
violence.
(h) At the conclusion of any trial conducted under this rule,
the judge shall enter an appropriate final judgment which shall be
appealable pursuant to the applicable Rules of Appellate Procedure.
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