Florida Rules of Criminal Procedure - Complete Full Text
Complete Full Text
This page contains the complete full text of all Florida Rules of Criminal Procedure with case law references, rule cross-references, and commentary.
Version: Florida Rules of Criminal Procedure
Florida Rules of Criminal Procedure
Table of Contents
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES.. 10
I. SCOPE, PURPOSE, AND CONSTRUCTION
RULE 3.010. SCOPE
RULE 3.020. PURPOSE AND CONSTRUCTION
RULE 3.025. STATE AND PROSECUTING ATTORNEY
DEFINED
II. GENERAL PROVISIONS
RULE 3.030. SERVICE AND FILING OF PLEADINGS AND
DOCUMENTS
RULE 3.040. COMPUTATION OF TIME
RULE 3.050. ENLARGEMENT OF TIME
RULE 3.060. TIME FOR SERVICE OF MOTIONS AND NOTICE OF
HEARING
RULE 3.080. NONVERIFICATION OF PLEADINGS
RULE 3.090. PLEADING CAPTIONS
RULE 3.111. PROVIDING COUNSEL TO INDIGENTS
RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN
CAPITAL CASES
RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN
FELONY CASES
RULE 3.115. DUTIES OF STATE ATTORNEY; CRIMINAL
INTAKE
RULE 3.116. USE OF COMMUNICATION TECHNOLOGY
III. PRELIMINARY PROCEEDINGS
RULE 3.120. COMMITTING JUDGE
RULE 3.121. ARREST WARRANT
RULE 3.125. NOTICE TO APPEAR
RULE 3.130. FIRST APPEARANCE
RULE 3.131. PRETRIAL RELEASE
RULE 3.132. PRETRIAL DETENTION
RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS
AND ADVERSARY PRELIMINARY HEARINGS
RULE 3.134. TIME FOR FILING FORMAL CHARGES
RULE 3.140. INDICTMENTS; INFORMATIONS
RULE 3.150. JOINDER OF OFFENSES AND DEFENDANTS
RULE 3.151. CONSOLIDATION OF RELATED OFFENSES
RULE 3.152. SEVERANCE OF OFFENSES AND DEFENDANTS ..
RULE 3.153. TIMELINESS OF DEFENDANT’S MOTION;
WAIVER
IV. ARRAIGNMENT AND PLEAS
RULE 3.160. ARRAIGNMENT
RULE 3.170. PLEAS
RULE 3.171. PLEA DISCUSSIONS AND AGREEMENTS
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO
CONTENDERE PLEA
RULE 3.180. PRESENCE OF DEFENDANT
RULE 3.181. NOTICE TO SEEK DEATH PENALTY
V. PRETRIAL MOTIONS AND DEFENSES
RULE 3.190. PRETRIAL MOTIONS
RULE 3.191. SPEEDY TRIAL
RULE 3.192. MOTIONS FOR REHEARING
RULE 3.200. NOTICE OF ALIBI
RULE 3.201. BATTERED-SPOUSE SYNDROME DEFENSE
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION
DURING PENALTY PHASE OF CAPITAL TRIAL; NOTICE AND
EXAMINATION BY STATE EXPERT
RULE 3.203. DEFENDANT’S INTELLECTUAL DISABILITY AS A
BAR TO IMPOSITION OF THE DEATH PENALTY
RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE FOR
RAISING THE ISSUE
RULE 3.211. COMPETENCE TO PROCEED: SCOPE OF
EXAMINATION AND REPORT
RULE 3.212. COMPETENCE TO PROCEED: HEARING AND
DISPOSITION
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH SENTENCING;
DISPOSITION
RULE 3.214. INCOMPETENCY TO PROCEED TO SENTENCING:
DISPOSITION
RULE 3.215. EFFECT OF ADJUDICATION OF INCOMPETENCY TO
PROCEED: PSYCHOTROPIC MEDICATION
RULE 3.216. INSANITY AT TIME OF OFFENSE OR PROBATION OR
COMMUNITY CONTROL VIOLATION: NOTICE AND APPOINTMENT
OF EXPERTS
RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF
INSANITY; DISPOSITION OF DEFENDANT
RULE 3.218. COMMITMENT OF A DEFENDANT FOUND NOT
GUILTY BY REASON OF INSANITY
RULE 3.219. CONDITIONAL RELEASE
VI. DISCOVERY
RULE 3.220. DISCOVERY
VII. SUBSTITUTION OF JUDGE
RULE 3.231. SUBSTITUTION OF JUDGE
VIII. CHANGE OF VENUE
RULE 3.240. CHANGE OF VENUE
IX. THE TRIAL
RULE 3.250. ACCUSED AS WITNESS
RULE 3.251. RIGHT TO TRIAL BY JURY
RULE 3.260. WAIVER OF JURY TRIAL
RULE 3.270. NUMBER OF JURORS
RULE 3.280. ALTERNATE JURORS
RULE 3.281. LIST OF PROSPECTIVE JURORS
RULE 3.290. CHALLENGE TO PANEL
RULE 3.300. VOIR DIRE EXAMINATION, OATH, AND
EXCUSING OF MEMBER
RULE 3.310. TIME FOR CHALLENGE
RULE 3.315. EXERCISE OF CHALLENGES
RULE 3.320. MANNER OF CHALLENGE
RULE 3.330. DETERMINATION OF CHALLENGE FOR
CAUSE
RULE 3.340. EFFECT OF SUSTAINING CHALLENGE
RULE 3.350. PEREMPTORY CHALLENGES
RULE 3.360. OATH OF TRIAL JURORS
RULE 3.361. WITNESS ATTENDANCE AND SUBPOENAS
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS
RULE 3.370. REGULATION AND SEPARATION OF JURORS
RULE 3.371. JUROR QUESTIONS OF WITNESSES
RULE 3.372. JUROR NOTEBOOKS
RULE 3.380. MOTION FOR JUDGMENT OF ACQUITTAL
RULE 3.381. FINAL ARGUMENTS
RULE 3.390. JURY INSTRUCTIONS
RULE 3.391. SELECTION OF FOREPERSON OF JURY
RULE 3.400. MATERIALS TO THE JURY ROOM
RULE 3.410. JURY REQUEST TO REVIEW EVIDENCE OR
FOR ADDITIONAL INSTRUCTIONS
RULE 3.420. RECALL OF JURY FOR ADDITIONAL
INSTRUCTIONS
RULE 3.430. JURY NOT RECALLABLE TO HEAR ADDITIONAL
EVIDENCE
XI. THE VERDICT
RULE 3.440. RENDITION OF VERDICT; RECEPTION AND
RECORDING
RULE 3.450. POLLING THE JURY
RULE 3.451. JUDICIAL COMMENT ON VERDICT
RULE 3.470. PROCEEDINGS ON SEALED VERDICT
RULE 3.490. DETERMINATION OF DEGREE OF OFFENSE
RULE 3.500. VERDICT OF GUILTY WHERE MORE THAN
ONE COUNT
RULE 3.505. INCONSISTENT VERDICTS
RULE 3.510. DETERMINATION OF ATTEMPTS AND LESSER
INCLUDED OFFENSES
RULE 3.520. VERDICT IN CASE OF JOINT DEFENDANTS
RULE 3.530. RECONSIDERATION OF AMBIGUOUS OR
DEFECTIVE VERDICT
RULE 3.540. WHEN VERDICT MAY BE RENDERED
RULE 3.550. DISPOSITION OF DEFENDANT
RULE 3.560. DISCHARGE OF JURORS
RULE 3.570. IRREGULARITY IN RENDITION, RECEPTION,
AND RECORDING OF VERDICT
RULE 3.575. MOTION TO INTERVIEW JUROR
XII. POST-TRIAL MOTIONS
RULE 3.580. COURT MAY GRANT NEW TRIAL
RULE 3.590. TIME FOR AND METHOD OF MAKING MOTIONS;
PROCEDURE; CUSTODY PENDING HEARING
RULE 3.600. GROUNDS FOR NEW TRIAL
RULE 3.610. MOTION FOR ARREST OF JUDGMENT;
GROUNDS
RULE 3.620. WHEN EVIDENCE SUSTAINS ONLY
CONVICTION OF LESSER OFFENSE
RULE 3.630. SENTENCE BEFORE OR AFTER MOTION
FILED
RULE 3.640. EFFECT OF GRANTING NEW TRIAL
XIII. JUDGMENT
RULE 3.650. JUDGMENT DEFINED
RULE 3.670. RENDITION OF JUDGMENT
RULE 3.680. JUDGMENT ON INFORMAL VERDICT
RULE 3.690. JUDGMENT OF NOT GUILTY; DEFENDANT
DISCHARGED AND SURETIES EXONERATED
RULE 3.691. POST-TRIAL RELEASE
RULE 3.692. PETITION TO SEAL OR EXPUNGE
RULE 3.693. PETITION TO SEAL OR EXPUNGE; HUMAN
TRAFFICKING
RULE 3.694. PETITION TO SEAL OR EXPUNGE; LAWFUL
SELF-DEFENSE EXPUNCTION
XIV. SENTENCE
RULE 3.700. SENTENCE DEFINED; PRONOUNCEMENT
AND ENTRY; SENTENCING JUDGE
RULE 3.701. SENTENCING GUIDELINES
RULE 3.702. SENTENCING GUIDELINES (1994)
RULE 3.703. SENTENCING GUIDELINES
(1994 AS AMENDED)
RULE 3.704. THE CRIMINAL PUNISHMENT CODE
RULE 3.710. PRESENTENCE REPORT
RULE 3.711. PRESENTENCE REPORT: WHEN PREPARED
RULE 3.712. PRESENTENCE REPORT: DISCLOSURE
RULE 3.713. PRESENTENCE INVESTIGATION
DISCLOSURE: PARTIES
RULE 3.720. SENTENCING HEARING
RULE 3.721. RECORD OF THE PROCEEDINGS
RULE 3.730. ISSUANCE OF CAPIAS WHEN NECESSARY TO
BRING DEFENDANT BEFORE COURT
RULE 3.750. PROCEDURE WHEN PARDON IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING SENTENCE
RULE 3.760. PROCEDURE WHEN NONIDENTITY IS ALLEGED
AS CAUSE FOR NOT PRONOUNCING
SENTENCE
RULE 3.770. PROCEDURE WHEN PREGNANCY IS ALLEGED
AS CAUSE FOR NOT PRONOUNCING DEATH
SENTENCE
RULE 3.780. SENTENCING HEARING FOR CAPITAL CASES 309
RULE 3.781. SENTENCING HEARING TO CONSIDER THE
IMPOSITION OF A LIFE SENTENCE FOR
JUVENILE OFFENDERS
RULE 3.790. PROBATION AND COMMUNITY CONTROL
RULE 3.800. CORRECTION, REDUCTION, AND
MODIFICATION OF SENTENCES
RULE 3.801. CORRECTION OF JAIL CREDIT
RULE 3.802. REVIEW OF SENTENCES FOR JUVENILE
OFFENDERS
XV. EXECUTION OF SENTENCE
RULE 3.810. COMMITMENT OF DEFENDANT; DUTY OF
SHERIFF
RULE 3.811. INSANITY AT TIME OF EXECUTION: CAPITAL
CASES
RULE 3.812. HEARING ON INSANITY AT TIME OF EXECUTION:
CAPITAL CASES
RULE 3.820. HABEAS CORPUS
XVI. CRIMINAL CONTEMPT
RULE 3.830. DIRECT CRIMINAL CONTEMPT
RULE 3.840. INDIRECT CRIMINAL CONTEMPT
XVII. POSTCONVICTION RELIEF
RULE 3.850. MOTION TO VACATE; SET ASIDE; OR CORRECT
SENTENCE
RULE 3.851. COLLATERAL RELIEF AFTER DEATH
SENTENCE HAS BEEN IMPOSED AND
AFFIRMED ON DIRECT APPEAL
RULE 3.852. CAPITAL POSTCONVICTION PUBLIC
RECORDS PRODUCTION
RULE 3.853. MOTION FOR POSTCONVICTION DNA
TESTING
XVIII. FORMS
RULE 3.984. APPLICATION FOR CRIMINAL INDIGENT
STATUS
RULE 3.9855. JUROR VOIR DIRE QUESTIONNAIRE
RULE 3.986. FORMS RELATED TO JUDGMENT AND
SENTENCE
RULE 3.987. MOTION FOR POSTCONVICTION RELIEF
RULE 3.9875. MOTION FOR JAIL CREDIT
RULE 3.9876. MOTION FOR CORRECTION OF SENTENCE
RULE 3.988. SENTENCING GUIDELINES
RULE 3.989. SWORN STATEMENT; PETITION; AND ORDER
TO EXPUNGE OR SEAL FORMS
RULE 3.9895 HUMAN TRAFFICKING: SWORN STATEMENT;
PETITION; AND ORDER TO EXPUNGE OR
SEAL RECORDS
RULE 3.990. SENTENCING GUIDELINES SCORESHEET
RULE 3.991. SENTENCING GUIDELINES SCORESHEETS
(OCTOBER 1, 1995)
RULE 3.992. CRIMINAL PUNISHMENT CODE
SCORESHEET
RULE 3.993. FORMS RELATED TO CAPITAL POSTCONVICTION
RECORDS PRODUCTION
RULE 3.994. ORDER CERTIFYING NO INCARCERATION
RULE 3.995. ORDER OF REVOCATION OF PROBATION/
COMMUNITY CONTROL
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
ORIGINAL ADOPTION, effective 1-1-68: 196 So. 2d 124
OTHER OPINIONS:
Effective Date Citation Description
Effective 2-28-68: 207 So.2d 203. Amended 1.840(a)(4).
Effective 9-30-68: 211 So.2d Amended 1.010, 1.120, 1.140(a)(2), 1.140(c)(2),
1.140(l), (o), 1.150, 1.200, 1.220(f), 1.790(b),
1.840(a)(6).
Effective 12-4-70: 241 So.2d 33. Deleted 1.860.
Effective 2-24-71: 245 So.2d 537. Added 1.191.
Effective 8-19-71: 251 So.2d 421. Amended 1.191(i)(2).
Effective 12-13-71: 253 So.2d Renumbered rules 1.XXX to 3.XXX; added
3.025.
Effective 2-1-73: 272 So.2d 513. Four-year-cycle revision.
Effective 2-1-73: 272 So.2d 204. Amended 3.140, 3.170.
Effective 5-11-73: 281 So.2d 678. Added 3.125.
Effective 1-16-74: 287 So.2d Amended 3.460.
Effective 3-1-74: 289 So.2d 301. 3. Amended 3.131(b).
Effective 7-18-74: 297 So.2d 544. Amended 3.125(j).
Effective 3-31-75: 309 So.2d 172. Amended 3.040, 3.131, 3.140(g).
Effective 7-11-75: 315 So.2d Added 3.986.
Effective 7-1-77: 343 So.2d 1247. Four-year-cycle revision. Amended 3.125,
3.130, 3.131, 3.140, 3.151, 3.171, 3.190,
3.191, 3.210, 3.220, 3.280, 3.350, 3.390,
3.505, 3.691, 3.692, 3.800, 3.850; added
3.172, 3.780; deleted 3.722.
Effective 7-1-77: 347 So.2d 552. Amended 3.125(m).
Effective 1-1-78: 353 So.2d 764. Amended 3.850; added 3.987.
Effective 5-1-79: 370 So.2d 449. Deleted 3.110.
Effective 7-1-79: 372 So.2d 855. Amended 3.080; deleted 3.025, 3.090, 3.100.
Effective 10-9-79: 375 So.2d Former rules 3.210(a) and 3.210(e)(1)B(8)
adopted as Transition Rules 23(a) and (b).
Effective 1-1-80: 376 So.2d 610. Amended 3.111(e).
Effective 7-1-80: 389 So.2d 610. Amended 3.210; added 3.211B3.219.
Effective 1-1-81: 389 So.2d Four-year-cycle revision. Amended 3.111,
3.191, 3.220, 3.300, 3.380, 3.590, 3.720,
3.800, 3.986; added 3.315; deleted 3.460.
Effective 10-1-81: 403 So.2d 207. Added 3.490, 3.510.
Effective 11-1-81: 408 So.2d 60. Amended 3.986.
Effective 10-1-83: 436 So.2d Amended 3.130, 3.131; added 3.132;
renumbered 3.122 to 3.133.
Effective Date Citation Description
Effective 10-1-83: 439 So.2d Added 3.701, 3.988.
Effective 7-1-84: 451 So.2d 907. Amended 3.701, 3.988.
Effective 1-1-85: 460 So.2d 386. Amended 3.850.
Effective 1-1-85: 462 So.2d Four-year-cycle revision. Amended 3.130,
3.160, 3.191, 3.390, 3.692, 3.989.
Effective 7-1-85: 468 So.2d 480. Amended 3.701, 3.988.
Effective 12-19-85: 481 So.2d Amended 3.850.
Effective 10-1-86: 482 So.2d Amended 3.701, 3.988.
Effective 4-24-86: 487 So.2d 1045. Amended 3.800(a).
Effective 7-17-86: 491 So.2d 1128. Amended 3.988(e).
Effective 11-13-86: 497 So.2d Added 3.811.
Effective 11-26-86: 498 So.2d Amended 3.220(d).
Effective 4-1-87: 503 So.2d Added 3.851.
Effective 7-1-87: 509 So.2d 1088. Amended 3.701, 3.988.
Effective 12-31-87: 518 So.2d Amended 3.010, 3.811; added 3.812.
Effective 7-1-88: 522 So.2d 992. Amended 3.701, 3.988.
Effective 1-1-89: 536 So.2d Four-year-cycle revision. Amended 3.040,
3.133, 3.172, 3.210, 3.211, 3.212, 3.213,
3.216, 3.217, 3.218, 3.219, 3.390, 3.710,
3.790; added 3.214; renumbered 3.214 to
3.215; deleted 3.740.
Effective 7-1-89: 542 So.2d 1330. Amended 3.191.
Effective 7-1-89: 544 So.2d Amended 3.710, 3.988.
Effective 7-1-89: 550 So.2d 1097. Amended 3.220.
Effective 9-6-90, 566 So.2d Amended 3.701, 3.988.
and 1-1-91:
Effective 4-1-91: 573 So.2d Amended 3.133(b)(6) and renumbered as
3.134.
Effective 3-7-91: 576 So.2d 1307. Amended 3.701, 3.988.
Effective 11-7-91: 589 So.2d 173. Amended 3.701, 3.988.
Effective 12-15-91: 591 So.2d Amended 3.130(a), 3.131(j).
Effective Date Citation Description
Effective 3-26-92: 596 So.2d 1036. Amended 3.370.
Effective 5-28-92: 603 So.2d 1144. Amended 3.140, 3.986.
Effective 1-1-93: 606 So.2d Four-year-cycle revisions. Numerous changes.
Effective 1-1-93: 609 So.2d Deleted 3.230.
Effective 2-11-93: 613 So.2d 1307. Amended 3.701(c), 3.988.
Effective 7-1-93: 615 So.2d 172. Amended 3.191(b).
Effective 10-21-93: 630 So.2d Adopted emergency rule 3.201.
Effective 11-30-93: 628 So.2d 1084. Amended 3.701(c), 3.988(b)B(c).
Effective 12-2-93: 628 So.2d 1102. Amended 3.987.
Effective 1-1-94: 626 So.2d Amended 3.850, 3.851.
Effective 1-1-94: 628 So.2d 1084. Added 3.702, 3.990, amended 3.701.
Effective 1-1-94: 630 So.2d Amended 3.133, 3.692, 3.986, 3.987, 3.989.
Effective 3-10-94: 633 So.2d 1056. Amended 3.170, 3.700.
Effective 6-16-94: 639 So.2d Amended 3.692, 3.989.
Effective 6-1-95: 657 So.2d 1134. Amended 3.400.
Effective 10-1-95: 660 So.2d 1374. Adopted 3.703, 3.991.
Effective 1-1-96: 674 So.2d 915. Adopted 3.202.
Effective 5-2-96: 654 So.2d Amended 3.202.
Effective 7-1-96: 675 So.2d 1374. Amended 3.800.
Effective 10-1-96: 681 So.2d 1213. Amended 3.220.
Effective 10-1-96: 685 So.2d 475. Amended 3.703.
Effective 10-31-96: 683 So.2d Adopted 3.852.
Effective 11-15-96: 684 So.2d Amended 3.986.
Effective 1-1-97: 685 So.2d 1213. Amended 3.991.
Effective 1-1-97: 685 So.2d 1253. Four-year-cycle revision. Adopted 3.090,
3.361; amended 3.170, 3.172, 3.180, 3.190,
3.212, 3.216, 3.780, 3.800, 3.850, 3.851,
3.986.
Effective 7-7-97: 696 So.2d 1171. Amended 3.703, 3.991.
Effective Date Citation Description
Effective 4-2-98: 710 So.2d 27. Amended 3.220(h)(1).
Effective 4-2-98: 711 So.2d 873. Amended 3.702(d)(9)B(10),
Effective 7-16-98: 719 So.2d 265. Amended 3.111(d)(2)B(3).
Effective 10-1-98: 721 So.2d 163. Adopted 3.704, 3.992.
Effective 10-1-98: 723 So.2d Adopted 3.993; amended 3.852.
Effective 12-3-98: 724 So.2d 1162. Amended 3.220(h)(1), (3), 3.361.
Effective 12-10-98: 745 So.2d Amended 3.380(b).
Effective 2-18-99: 745 So.2d 592. Amended 3.220(a).
Effective 5-27-99: 750 So.2d 931. Amended 3.850.
Effective 5-27-99: 747 So.2d 640. Amended 3.850(b).
Effective 7-1-99: 754 So.2d 67. Amended 3.852, 3.993.
Effective 11-12-99: 760 So.2d Amended 3.670, 3.700(b).
Effective 11-12-99: 761 So.2d 1015. Amended 3.111(e), 3.800.
Effective 12-9-99: 763 So.2d 67. Amended 3.704(d).
Effective 1-1-00: 760 So.2d 273. Amended 3.670.
Effective 1-14-00: 763 So.2d 274. Readopted 3.850, 3.851, 3.852.
Effective 2-10-00: 763 So.2d 610. Amended 3.220(a).
Effective 7-1-00: 759 So.2d Adopted 3.112.
Effective 10-19-00: 779 So.2d 1290. Amended 3.850(a).
Effective 11-22-00: 789 So.2d Amended 3.850(g).
Effective 1-1-01: 794 So.2d Four-year-cycle revision: Adopted 3.025;
amended 3.030, 3.111, 3.125, 3.190, 3.191,
3.213, 3.217, 3.218, 3.219, 3.692, 3.800,
3.851, 3.986, 3.987, 3.989, 3.993.
Effective 9-26-01: 810 So.2d Amended 3.704 and 3.992(a).
Effective 10-1-01: 797 So.2d 1213. Amended 3.851.
Effective 10-1-01: 802 So.2d 633. Amended 3.851, 3.852.
Effective 10-18-01: 807 So.2d Adopted 3.853.
Effective 7-1-02: 820 So.2d 999. Amended 3.112.
Effective 9-19-02: 828 So.2d 924. Amended 3.851.
Effective 1-1-03: 837 So.2d Two-year-cycle revisions. Adopted 3.994;
amended 3.111, 3.170, 3.190, 3.361.
Effective 2-27-03: 842 So.2d 190. Committee note to 3.704(d)(14)(B).
Effective 9-30-03: 857 So.2d Suspended 3.853 deadline until further order
of court.
Effective 9-15-04: 884 So.2d 563. Amended 3.853.
Effective 10-1-04: 875 So.2d Adopted 3.203.
Effective Date Citation Description
Effective 10-1-04: 887 So.2d 1090. Amended 3.111, 3.120, 3.121, 3.125, 3.130,
3.131, 3.133, 3.220, 3.852.
Effective 1-1-05: 886 So.2d Amended 3.150, 3.191, 3.710, 3.800, 3.986;
adopted 3.575, 3.995.
Effective 4-7-05: 900 So.2d 194. Amended 3.111, 3.220, 3.670; adopted 3.984.
Effective 7-1-05: 910 So.2d Amended 3.984.
Effective 9-1-05: 911 So.2d Amended 3.172(c).
Effective 9-29-05: 935 So.2d 1218. Amended 3.853(d).
Effective 9-21-06: 938 So.2d 978. Amended 3.853.
Effective 9-21-06: 938 So.2d 407. Amended 3.170, 3.172.
Effective 1-1-07 942 So.2d Amended 3.170, 3.180, 3.213, 3.640.
Effective 1-1-07: 945 So.2d 1124. Amended 3.590, 3.851.
Effective 2-8-07: 949 So.2d 513. Amended 3.800.
Effective 3-29-07: 953 So.2d 731. Amended 3.170, 3.172.
Effective 4-1-07: 948 So.2d Amended 3.131, 3.132, 3.853.
Effective 4-19-07: 957 So.2d 1160. Amended 3.704, 3.992.
Effective 5-3-07: 957 So.2d 1164. Amended 3.250; adopted 3.381.
Effective 6-21-07: 959 So.2d Amended 3.131, 3.170.
Effective 7-5-07: 959 So.2d 1187. Amended 3.790.
Effective 10-4-07: 967 So.2d Amended 3.390, 3.400; adopted 3.371, 3.372,
3.9855.
Effective 1-10-08: 972 So.2d 239. Amended 3.992.
Effective 9-25-08: 992 So.2d Amended 3.992(a).
Effective 10-8-08: 993 So.2d Amended 3.112.
Effective 11-20-08: 998 So.2d 1128. Amended 3.704, 3.986.
Effective 12-30-08: 1 So.3d Amended 3.851.
Effective 2-26-09: 3 So.3d 662. Amended 3.112.
Effective 3-19-09: 5 So.3d 341. Amended 3.984.
Effective 5-28-09: 11 So.3d 274. Amended 3.130.
Effective 7-16-09: 19 So.3d 272. Amended 3.992.
Effective 8-28-09: 17 So.2d Amended 3.111.
Effective 9-10-09: 22 So.3d 1. Amended 3.704 and 3.986.
Effective 10-1-09: 20 So.3d 306. Amended 3.172, 3.985.
Effective 1-1-10: 19 So.3d 534. Amended 3.132.
Effective 1-1-10: 26 So.3d Three-year-cycle revision. Adopted rule 3.192.
Amended rules 3.131, 3.172, 3.190, 3.191,
Effective Date Citation Description
3.203, 3.210, 3,211, 3.216, 3.220, 3.231,
3.240, 3.800, 3.851, 3.852, 3.853, form 3.986.
Effective 9-2-10: 43 So.3d 17. Amended 3.853.
Effective 9-23-10: 48 So.3d 851. Amended 3.111, 3.704, 3.720, FORM 3.986
Effective 6-9-11: 66 So.3d 735. Amended 3.191.
Effective 7-1-11: 72 So.3d 202. Amended 3.850 and 3.851.
Effective 9-28-11: 73 So.3d 317. Amended 3.992(a).
Effective 10-1-11: 80 So.3d Amended 3.140, 3.211, 3.212, 3.218 and
3.219.
Effective 12-8-11: 76 So.3d 254. Amended 3.800(c).
Effective 3-8-11: 84 So.3d 505. Amended 3.130.
Effective 9-1-12: 102 So.3d 96. Amended 3.030, 3.070, 3.852.
Effective 10-1-12: 95 So.3d Amended 3.040.
Effective 10-11-12: 101 So.3d 1263. Amended 3.992.
Effective 10-1-13: 102 So.3d Amended 3.030, 3.070, 3.080, 3.090, 3.240,
3.851.
Effective 12-20-12: 105 So.3d 1275. Amended 3.220(b)
Effective 1-1-13: 104 So.3d Amended 3.111, 3.125, 3.140, 3.191, 3.220,
3.410, 3.590, 3.691, 3.800, 3.851.
Effective 5-23-13: 115 So.3d 734. Amended 3.220(b).
Effective 7-1-13: 132 So.3d Amended 3.800, 3.850, and 3.851. Adopted
3.801.
Effective 12-12-13: 132 So.3d Amended 3.121, 3.203, 3.211, 3.212, 3.213,
3.851, and 3.852.
Effective 1-1-14: 132 So.3d Amended 3.692 and 3.989.
Effective 4-24-14: 137 So.3d 1015. Amended 3.692 and 3.989.
Effective 5-16-14: 139 So.3d 507. Adopted 3.113.
Effective 7-1-14: 140 So.3d 538. Amended 3.852.
Effective 7-1-14: 140 So.3d Amended 3.220.
Effective 1-1-15: 148 So. 3d 1171. Amended 3.112, 3.851, 3.852.
Effective 1-29-15: 156 So.3d 1036. Amended 3.851.
Effective 4-30-15: 163 So.3d 395. Amended 3.852.
Effective 6-11-15: 167 So.3d 980. Amended 3.192, 3.800, 3.850.
Effective 10-8-15: 176 So.3d Amended 3.220 and 3.989. Adopted 3.781 and
3.802.
Effective 1-1-16: 176 So.3d Amended 3.220.
Effective 1-1-16: 185 So.3d 1169. Amended 3.800, 3.984, 3.987, 3.993 Adopted
3.9875.
Effective 1-1-16: 188 So.3d Amended 3.112, 3.121, 3.172, 3.192, 3.212,
3.220, 3.410, 3.590, 3.984, 3.986.
Effective Date Citation Description
Effective 9-15-16: 200 So.3d Adopted 3.181, amended 3.202, 3.220, 3.780
Effective 9-29-16: 200 So.3d 1221. Amended 3.781, 3.802.
Effective 11-23-16: 204 So.3d Amended 3.800, 3.801, 3.9875.
Effective 11-09-17: 229 So.3d 1116. Clarified 3.192.
Effective 5-10-17: 242 So.3d 494. Amended 3.220.
Effective 1-1-19: 265 So.3d Amended 3.101, 3.025, 3.030, 3.130, 3.131,
3.172, 3.180, 3.190, 3.191, 3.203, 3.213,
3.217, 3.218, 3.219, 3.220, 3.240, 3.330,
3.470, 3.590, 3.600, 3.610, 3.691, 3.692,
3.704, 3.710, 3.770, 3.810, 3.850, 3.986,
3.989. Adopted 3.9876.
Effective 1-1-19: 257 So.3d 214. Amended 3.040. Deleted 3.070.
Effective 12-19-19: 286 So.3d Amended 3.692 and 3.989. Adopted 3.693,
3.694 and 3.9895
Effective 4-1-19: 2020 WL Amended 3.390 and deleted 3.985.
1064825.
Effective 1-28-21: 312 So.3d 657. Amended 1.470, 2.270, 2.580, and 3.390.
Effective 4-1-21: 309 So. 3d 248. Amended Rule 3.830.
Effective 7-1-21: 314 So. 3d 34. Amended Rule 3.112.
Effective 7-1-21: 320 So. 3d Amended Rule 3.131,3.220, 3.800, 3.9855,
and 3.987.
Effective 10-1-21: 324 So.3d 940. Amended Rule 3.212.
Effective 10-28-21: 344 So.3d Amended Rule 3.191, 3.211, 3.218, 3.219,
3.220, 3.390, 3.851.
Effective 10-28-21: 344 So.3d Amended 3.693, 3.986, 3.9895.
Effective 1-1-22: 334 So.3d 585 Amended 3.030.
Effective 3-24-22: 345 So.3d Amended 3.992.
Effective 4-1-22: 335 So.3d 678 Amended 3.781 and 3.802. Adopted 3.996.
Effective 5-5-22: 351 So.3d
0B Amended 3.851.
Effective 7-1-22: 345 So.3d
1B Amended 3.691.
Effective 7-14-22: 346 So.3d
2B Amended 3.720.
Effective 9-22-22: 348 So.3d
3B Amended 3.790.
Effective 10-1-22: 356 So.3d
4B Adopted 3.116. Amended 3.130, 3.160, 3.180,
3.191, 3.220, 3.851.
Effective 10-1-22: 346 So.3d Amended 3.720.
5B
Effective 11-22-23: 397 So.3d Amended 3.211, 3.212, 3.704, 3.992
Effective 4-1-24: 375 So.3d Amended 3.030 and 3.704.
Effective Date Citation Description
Effective 4-1-24: 378 So.3d Amended 3.670.
Effective 7-1-24: 385 So.3d 1018. Amended 3.116.
Effective 7-1-24: 386 So.3d 579. Amended 3.131.
Effective 1-1-25: 393 So.3d 303. Amended 3.210.
Effective 4-1-25: 404 So3d Amended 3.802.
Effective 5-1-25: 407 So.3d 543. Amended 3.116 and 3.132.
Effective 5-22-25: 410 So.3d Amended 3.130 and 3.132.
Effective 7-1-25: 407 So.3d 1230. Amended 3.220, 3.851, and 3.853.
Effective 7-1-25: 411 So.3d 121. Amended 3.191 and 3.134.
Effective 7-10-25: 415 So.3d Amended 3.040.
Effective 10-1- 2025 WL Amended 3.220
2025: 2535153.
Effective 10-23-25: 2025 WL Amended 3.992.
2982413.
Effective 11-6-25 SC2025-1496 Amended 3.112, 3.131, 3.202, 3.203, 3.704
I. SCOPE, PURPOSE, AND CONSTRUCTION
RULE 3.010 cases. SCOPE
These rules shall govern the procedure in all criminal
proceedings in state courts including proceedings involving direct
and indirect criminal contempt, proceedings under rule 3.850, and
criminal traffic offenses as provided by Section III, Florida Rules of
Traffic Court. These rules shall not apply to direct or indirect
criminal contempt of a court acting in any appellate capacity. These
rules shall not apply to rules 3.811 and 3.812. These rules shall be
known as the Florida Rules of Criminal Procedure and may be cited
as Fla. R. Crim. P.
Committee Notes
1968 Adoption. These rules are not intended to apply to
municipal courts, but are intended to apply to all state courts
where “crimes” are charged.
1972 Amendment. Amended to provide for applicability of
rules to vehicular traffic offenses, when made so by the traffic court
rules.
1992 Amendment. The rule is amended to refer to “Florida
Rules of Criminal Procedure” and “Fla. R. Crim. P.” rather than to
“Rules of Criminal Procedure” and “R. Crim. P.” Although the
Florida Bar Rules of Criminal Procedure already contains this
language, the West publications, Florida Rules of Court (1991) and
Florida Criminal Law and Rules (1991), do not. The published
version of rule 3.010, In re Florida Rules of Criminal Procedure, 272
So. 2d 65 (Fla. 1973), and the single published amendment to the
rule, In re Amendments to the Florida Rules of Criminal Procedure,
518 So. 2d 256 (Fla. 1987), also do not contain these additions. The
Florida Bar publication, Florida Criminal Rules and Practice, in a
commentary to rule 3.010, indicates that the Florida Supreme
Court changed the citation form in an order effective January 1,
1977. The commentary indicates that the order stated in pertinent
part:
In order to provide the clarity of citations in briefs filed in this
court and other legal writings, the following amendments to the
procedural rules adopted by this court pursuant to Article V,
Section 2(a), of the Florida Constitution are hereby adopted.
***
The last sentence of Rule 3.010 of the Florida Rules of
Criminal Procedure is amended as follows: “These Rules shall be
known as the Florida Rules of Criminal Procedure and may be cited
as Fla. R. Crim. P.”
However, these changes were apparently inadvertently omitted
when the 1987 amendments were published. The proposed 1992
amendments again incorporate into the rule the language set out in
the court’s 1977 order.
The amendments would enable clearer identification of the
rules and achieve consistency of style with other sets of court rules,
in particular, rule 9.800(i), Fla. R. App. P., which provides that the
proper citation to the Florida Rules of Criminal Procedure is Fla. R.
Crim. P.
RULE 3.020 cases. PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination
of every criminal proceeding. They shall be construed to secure
simplicity in procedure and fairness in administration.
Committee Notes
1968 Adoption. Substantially the same as Federal Rule 2.
1972 Amendment. Same as prior rule.
RULE 3.025 cases. STATE AND PROSECUTING ATTORNEY DEFINED
Whenever the terms “state,” “state attorney,” “prosecutor,”
“prosecution,” “prosecuting officer,” or “prosecuting attorney” are
used in these rules, they shall be construed to mean the
prosecuting authority representing the State of Florida.
Committee Notes
2000 Adoption. This provision is new. Its purpose is to
include the Office of Statewide Prosecution as a prosecuting
authority under these rules. No substantive changes are intended
by the adoption of this rule.
II. GENERAL PROVISIONS
RULE 3.030 cases. SERVICE AND FILING OF PLEADINGS AND
DOCUMENTS
(a) Service. Every pleading subsequent to the initial
indictment or information on which a defendant is to be tried
unless the court otherwise orders, and every order not entered in
open court, every written motion unless it is one about which a
hearing ex parte is authorized, and every written notice, demand,
and similar document must be served on each party in conformity
with Florida Rule of General Practice and Judicial Administration
2.516. Nothing in these rules requires a plea of not guilty be in
writing.
(b) Filing. Filings of all pleadings and documents must
comply with Florida Rules of General Practice and Judicial
Administration 2.505, 2.515, and 2.525.
(c) Deposit with the Clerk. Any paper document that is a
judgment and sentence or required by statute or rule to be sworn to
or notarized must be filed and deposited with the clerk immediately
after its filed. This requirement does not apply to the documents
filed under rules 3.111(b)(5)(C), 3.121, 3.125, 3.133(a)(3), 3.140(g),
3.160, 3.190, 3.240, 3.692, 3.693, 3.694, 3.811, 3.840, and 3.984.
This requirement also does not apply to the documents filed by
attorneys under rules 3.600, 3.801(c), 3.850(c), or 3.853(b).
(d) Maintenance of Deposited Documents. The clerk must
maintain deposited original paper documents in accordance with
Florida Rule of General Practice and Judicial Administration 2.430,
unless otherwise ordered by the court.
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil
Procedure.
1972 Amendment. Same as prior rule; (a) amended by
deleting reference to trial on affidavit.
2000 Amendment. Fraudulent manipulation of electronically
transmitted service should be considered contemptuous and dealt
with by appropriate sanctions by the court.
RULE 3.040 cases. COMPUTATION OF TIME
Computation of time is governed by Florida Rule of General
Practice and Judicial Administration 2.514, except for the periods of
time of less than 7 days contained in rules 3.130, 3.132, and
3.133(a).
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil
Procedure.
1972 Amendment. Same as prior rule.
1988 Amendment. The 1983 amendments resulted in the
reallocation of the time periods in rule 3.131 to rule 3.133, and also
added an important 5 day period in the new rule regarding pretrial
detention in rule 3.132.
Court Commentary
1975 Amendment. Underlined portion is the only change.
The effect is to remove the 72 hour provision of proposed rule 3.131
from the Saturday, Sunday, and legal holiday exception.
RULE 3.050 cases. ENLARGEMENT OF TIME
When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or within a
specified time, the court for good cause shown may, at any time, in
its discretion (1) with or without notice, order the period enlarged if
a request therefor is made before the expiration of the period
originally prescribed or extended by a previous order or (2) upon
motion made and notice after the expiration of the specified period,
permit the act to be done when the failure to act was the result of
excusable neglect; but it may not, except as provided by statute or
elsewhere in these rules, extend the time for making a motion for
new trial, for taking an appeal, or for making a motion for a
judgment of acquittal.
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil
Procedure.
1972 Amendment. Same as prior rule.
RULE 3.060 cases. TIME FOR SERVICE OF MOTIONS AND NOTICE
OF HEARING
A copy of any written motion which may not be heard ex parte
and a copy of the notice of the hearing thereof, shall be served on
the adverse party a reasonable time before the time specified for the
hearing.
Committee Notes
1968 Adoption. Taken from rules of civil procedure.
1972 Amendment. Same as prior rule.
RULE 3.080 cases. NONVERIFICATION OF PLEADINGS
Except when otherwise specifically provided by these rules or
an applicable statute, every written pleading or other document of a
party represented by an attorney need not be verified or
accompanied by an affidavit.
Committee Notes
1968 Adoption. Taken from rules of civil procedure.
1972 Amendment. Same as prior rule.
RULE 3.090 cases. PLEADING CAPTIONS
Every pleading, motion, order, judgment, or other document
shall have a caption containing the name of the court, the file
number, the name of the first party on each side with an
appropriate indication of other parties, and a designation
identifying the party filing it and its nature, to include if the
pleading or document is sworn 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
document and the party requesting or obtaining relief.
RULE 3.111 cases. PROVIDING COUNSEL TO INDIGENTS
(a) When Counsel Provided. A person entitled to
appointment of counsel as provided herein shall have counsel
appointed when the person is formally charged with an offense, or
as soon as feasible after custodial restraint, or at the first
appearance before a committing judge, whichever occurs earliest.
(b) Cases Applicable.
(1) Counsel shall be provided to indigent persons in all
prosecutions for offenses punishable by incarceration including
appeals from the conviction thereof. In the discretion of the court,
counsel does not have to be provided to an indigent person in a
prosecution for a misdemeanor or violation of a municipal
ordinance if the judge, at least 15 days prior to trial, files in the
cause a written order of no incarceration certifying that the
defendant will not be incarcerated in the case pending trial or
probation violation hearing, or as part of a sentence after trial,
guilty or nolo contendere plea, or probation revocation. This 15-day
requirement may be waived by the defendant or defense counsel.
(A) If the court issues an order of no incarceration
after counsel has been appointed to represent the defendant, the
court may discharge appointed counsel unless the defendant is
incarcerated or the defendant would be substantially disadvantaged
by the discharge of appointed counsel.
(B) If the court determines that the defendant
would be substantially disadvantaged by the discharge of appointed
counsel, the court shall either:
(i) not discharge appointed counsel; or
(ii) discharge appointed counsel and allow
the defendant a reasonable time to obtain private counsel, or if the
defendant elects to represent himself or herself, a reasonable time
to prepare for trial.
(C) If the court withdraws its order of no
incarceration, it shall immediately appoint counsel if the defendant
is otherwise eligible for the services of the public defender. The
court may not withdraw its order of no incarceration once the
defendant has been found guilty or pled nolo contendere.
(2) Counsel may be provided to indigent persons in all
proceedings arising from the initiation of a criminal action against a
defendant, including postconviction proceedings and appeals
therefrom, extradition proceedings, mental competency
proceedings, and other proceedings that are adversary in nature,
regardless of the designation of the court in which they occur or the
classification of the proceedings as civil or criminal.
(3) Counsel may be provided to a partially indigent
person on request, provided that the person shall defray that
portion of the cost of representation and the reasonable costs of
investigation as he or she is able without substantial hardship to
the person or the person’s family, as directed by the court.
(4) “Indigent” shall mean a person who is unable to pay
for the services of an attorney, including costs of investigation,
without substantial hardship to the person or the person’s family;
“partially indigent” shall mean a person unable to pay more than a
portion of the fee charged by an attorney, including costs of
investigation, without substantial hardship to the person or the
person’s family.
(5) Before appointing a public defender, the court shall:
(A) inform the accused that, if the public defender
or other counsel is appointed, a lien for the services rendered by
counsel may be imposed as provided by law;
(B) make inquiry into the financial status of the
accused in a manner not inconsistent with the guidelines
established by section 27.52, Florida Statutes. The accused shall
respond to the inquiry under oath;
(C) require the accused to execute an affidavit of
insolvency as required by section 27.52, Florida Statutes.
(c) Duty of Booking Officer. In addition to any other duty,
the officer who commits a defendant to custody has the following
duties:
(1) The officer shall immediately advise the defendant:
(A) of the right to counsel;
(B) that, if the defendant is unable to pay a
lawyer, one will be provided immediately at no charge.
(2) If the defendant requests counsel or advises the
officer that he or she cannot afford counsel, the officer shall
immediately and effectively place the defendant in communication
with the (office of) public defender of the circuit in which the arrest
was made.
(3) If the defendant indicates that he or she has an
attorney or is able to retain an attorney, the officer shall
immediately and effectively place the defendant in communication
with the attorney or the Lawyer Referral Service of the local bar
association.
(4) The public defender of each judicial circuit may
interview a defendant when contacted by, or on behalf of, a
defendant who is, or claims to be, indigent as defined by law.
(A) If the defendant is in custody and reasonably
appears to be indigent, the public defender shall tender such advice
as is indicated by the facts of the case, seek the setting of a
reasonable bail, and otherwise represent the defendant pending a
formal judicial determination of indigency.
(B) If the defendant is at liberty on bail or
otherwise not in custody, the public defender shall elicit from the
defendant only the information that may be reasonably relevant to
the question of indigency and shall immediately seek a formal
judicial determination of indigency. If the court finds the defendant
indigent, it shall immediately appoint counsel to represent the
defendant.
(d) Waiver of Counsel.
(1) The failure of a defendant to request appointment of
counsel or the announced intention of a defendant to plead guilty
shall not, in itself, constitute a waiver of counsel at any stage of the
proceedings.
(2) A defendant shall not be considered to have waived
the assistance of counsel until the entire process of offering counsel
has been completed and a thorough inquiry has been made into
both the accused’s comprehension of that offer and the accused’s
capacity to make a knowing and intelligent waiver. Before
determining whether the waiver is knowing and intelligent, the
court shall advise the defendant of the disadvantages and dangers
of self-representation.
(3) Regardless of the defendant’s legal skills or the
complexity of the case, the court shall not deny a defendant’s
unequivocal request to represent himself or herself, if the court
makes a determination of record that the defendant has made a
knowing and intelligent waiver of the right to counsel, and does not
suffer from severe mental illness to the point where the defendant is
not competent to conduct trial proceedings by himself or herself.
(4) A waiver of counsel made in court shall be of record;
a waiver made out of court shall be in writing with not less than 2
attesting witnesses. The witnesses shall attest the voluntary
execution thereof.
(5) If a waiver is accepted at any stage of the
proceedings, the offer of assistance of counsel shall be renewed by
the court at each subsequent stage of the proceedings at which the
defendant appears without counsel.
(e) Withdrawal of Defense Counsel After Judgment and
Sentence. The attorney of record for a defendant in a criminal
proceeding shall not be relieved of any duties, nor be permitted to
withdraw as counsel of record, except with approval of the lower
tribunal on good cause shown on written motion, until after:
(1) the filing of:
(A) a notice of appeal;
(B) a statement of judicial acts to be reviewed, if a
transcript will require the expenditure of public funds;
(C) directions to the clerk, if necessary; and
(D) a designation of that portion of the reporter’s
transcript that supports the statement of judicial acts to be
reviewed, if a transcript will require expenditure of public funds; or
(2) substitute counsel has been obtained or appointed,
or a statement has been filed with the appellate court that the
appellant has exercised the right to self-representation. In publicly
funded cases, the public defender for the local circuit court shall be
appointed initially until the record is transmitted to the appellate
court; or
(3) the time has expired for filing of a notice of appeal,
and no notice has been filed.
Orders allowing withdrawal of counsel are conditional, and counsel
shall remain of record for the limited purpose of representing the
defendant in the lower tribunal regarding any sentencing error that
the lower tribunal is authorized to address during the pendency of
the direct appeal under rule 3.800(b)(2).
Committee Notes
1972 Adoption. Part 1 of the ABA Standard relating to
providing defense services deals with the general philosophy for
providing criminal defense services and while the committee felt
that the philosophy should apply to the Florida Rules of Criminal
Procedure, the standards were not in such form to be the subject of
that particular rule. Since the standards deal with the national
situation, contained in them were alternative methods of providing
defense services, i.e., assigned counsel vs. defender system; but,
Florida, already having a defender system, need not be concerned
with the assigned counsel system.
(a) Taken from the first sentence of ABA Standard 5.1. There
was considerable discussion within the committee concerning the
time within which counsel should be appointed and who should
notify defendant’s counsel. The commentary in the ABA Standard
under 5.1a, b, convinced the committee to adopt the language here
contained.
(b) Standard 4.1 provides that counsel should be provided in
all criminal cases punishable by loss of liberty, except those types
where such punishment is not likely to be imposed. The committee
determined that the philosophy of such standard should be
recommended to the Florida Supreme Court. The committee
determined that possible deprivation of liberty for any period makes
a case serious enough that the accused should have the right to
counsel.
(c) Based on the recommendation of ABA Standard 5.1b and
the commentary thereunder which provides that implementation of
a rule for providing the defendant with counsel should not be
limited to providing a means for the accused to contact a lawyer.
(d) From standard 7.2 and the commentaries thereunder.
1980 Amendment. Modification of the existing rule (the
addition of (b)(5)(A)–(C)) provides a greater degree of uniformity in
appointing counsel to indigent defendants. The defendant is put on
notice of the lien for public defender services and must give
financial information under oath.
A survey of Florida judicial circuits by the Committee on
Representation of Indigents of the Criminal Law Section (1978–79)
disclosed the fact that several circuits had no procedure for
determining indigency and that there were circuits in which no
affidavits of insolvency were executed (and no legal basis for
establishing or collecting lien monies).
1992 Amendment. In light of State v. District Court of Appeal
of Florida, First District, 569 So. 2d 439 (Fla. 1990), in which the
supreme court pronounced that motions seeking belated direct
appeal based on ineffective assistance of counsel should be filed in
the trial court pursuant to rule 3.850, the committee recommends
that rule 3.111(e) be amended to detail with specificity defense
counsel’s duties to perfect an appeal prior to withdrawing after
judgment and sentence. The present provision merely notes that
such withdrawal is governed by Florida Rule of Appellate Procedure
9.140(b)(3).
1998 Amendment. The amendments to (d)(2)–(3) were
adopted to reflect State v. Bowen, 698 So. 2d 248 (Fla. 1997), which
implicitly overruled Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA
1967), rev’d on other grounds 216 So d 749 (Fla. 1968). See
Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986), for a list
of factors the court may consider. See also McKaskle v. Wiggins,
465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and Savage v.
Estelle, 924 F.2d 1459 (9th Cir. 1990), cert. denied 501 U.S. 1255,
111 S.Ct. 2900, 115 L.Ed.2d 1064 (1992), which suggest that the
defendant’s right to self-representation is limited when the
defendant is not able or willing to abide by the rules of procedure
and courtroom protocol.
2000 Amendment. This rule applies only to judicial
proceedings and is inapplicable to investigative proceedings and
matters. See rule 3.010.
2002 Amendment. Indigent defendants are entitled to
counsel if they are either currently in custody or might be
incarcerated in their case. See Alabama v. Shelton, 122 S.Ct. 1764,
1767 (2002) (Sixth Amendment forbids imposition of suspended
sentence that may “end up in the actual deprivation of a person’s
liberty” unless defendant accorded “the guiding hand of counsel”).
See also Tur v. State, 797 So. 2d 4 (Fla. 3d DCA 2001) (uncounseled
plea to criminal charge cannot result in jail sentence based on
violation of probationary sentence for that charge); Harris v. State,
773 So. 2d 627 (Fla. 4th DCA 2000).
Discharge of the public defender based on an order certifying
no incarceration that is entered after the public defender has
already spent considerable time and resources investigating the
case and preparing a defense may leave the defendant “in a position
worse than if no counsel had been appointed in the first place.”
State v. Ull, 642 So. 2d 721, 724 (Fla. 1994).
In determining whether a defendant’s due process rights
would be violated by the discharge of the public defender, the court
should consider all of the relevant circumstances, including, but
not limited to:
1. The stage of the proceedings at which the order of no
incarceration is entered.
2. The extent of any investigation and pretrial preparation
by the public defender.
3. Any prejudice that might result if the public defender is
discharged.
4. The nature of the case and the complexity of the issues.
5. The relationship between the defendant and the public
defender.
Counsel may be provided to indigent persons in all other
proceedings in, or arising from, a criminal case and the court
should resolve any doubts in favor of the appointment of counsel for
the defendant. See Graham v. State, 372 So. 2d 1363, 1365 (Fla.
1979).
See form found at Fla. R. Crim. P. 3.994.
2005 Amendment. See Affidavit of Indigent Status as
provided by In re Approval of Form for Use by Clerks of the Circuit
Courts Pursuant to Rule 10-2.1(a) of the Rules Regulating the Florida
Bar, 877 So. 2d 720 (Fla. 2004).
RULE 3.112 cases. MINIMUM STANDARDS FOR ATTORNEYS IN
CAPITAL CASES
(a) Statement of Purpose. The purpose of these rules is to
set minimum standards for attorneys in capital cases to help
ensure that competent representation will be provided to capital
defendants in all cases. Minimum standards that have been
promulgated concerning representation for defendants in criminal
cases generally and the level of adherence to such standards
required for noncapital cases should not be adopted as sufficient for
death penalty cases. Counsel in death penalty cases should be
required to perform at the level of an attorney reasonably skilled in
the specialized practice of capital representation, zealously
committed to the capital case, who has had adequate time and
resources for preparation. These minimum standards for capital
cases are not intended to preclude any circuit from adopting or
maintaining standards having greater requirements.
(b) Definitions. A capital trial is defined as any trial in
which the defendant is charged with a crime punishable by death
unless the death penalty is waived by the state on the record. A
capital appeal is any appeal in which the death penalty has been
imposed. A capital postconviction proceeding is any postconviction
proceeding in which the defendant is still under a sentence of
death.
(c) Applicability. This rule applies to all defense counsel
handling capital trials and capital appeals, who are appointed or
retained on or after July 1, 2002. Subdivision (k) of this rule applies
to all lead counsel handling capital postconviction cases, who are
appointed or retained on or after April 1, 2015.
(d) Lists of Qualified and Disqualified Conflict Counsel.
(1) Every circuit must maintain a list of conflict counsel
qualified for appointment in capital cases in each of three
categories:
(A) lead trial counsel;
(B) trial co-counsel; and
(C) appellate counsel.
(2) The chief judge for each circuit must maintain a list
of qualified counsel under section 27.40(3)(a), Florida Statutes.
(3) The chief judge for each circuit must maintain a list
of counsel who are disqualified to provide capital case
representation under section 27.7045, Florida Statutes, and such
list and any amendments thereto must be forwarded to the chief
judge of every other circuit.
(e) Appointment of Counsel. A court must appoint lead
counsel and, on written application and a showing of need by lead
counsel, should appoint co-counsel to handle every capital trial in
which the defendant is not represented by retained counsel. Lead
counsel must have the right to select co-counsel from attorneys on
the lead counsel or co-counsel list. Both attorneys must be
reasonably compensated for the trial and sentencing phase. Except
under extraordinary circumstances, only 1 attorney may be
compensated for other proceedings. In capital cases in which the
Public Defender or Criminal Conflict and Civil Regional Counsel is
appointed, the Public Defender or Criminal Conflict and Civil
Regional Counsel must designate lead and co-counsel.
(f) Lead Trial Counsel. Lead trial counsel assignments
should be given to attorneys who:
(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and
(2) are experienced and active trial practitioners with at
least 5 years of litigation experience in the field of criminal law; and
(3) have prior experience as lead counsel in no fewer
than 9 state or federal jury trials of serious and complex cases
which were tried to completion, as well as prior experience as lead
defense counsel or co-counsel in at least 2 state or federal cases
tried to completion in which the death penalty was sought. In
addition, of the 9 jury trials which were tried to completion, the
attorney should have been lead counsel in at least 3 cases in which
the charge was murder; or alternatively, of the 9 jury trials, at least
1 was a murder trial and an additional 5 were felony jury trials; and
(4) are familiar with the practice and procedure of the
criminal courts of the jurisdiction; and
(5) are familiar with and experienced in the utilization
of expert witnesses and evidence, including but not limited to
psychiatric and forensic evidence; and
(6) have demonstrated the necessary proficiency and
commitment which exemplify the quality of representation
appropriate to capital cases, including but not limited to the
investigation and presentation of evidence in mitigation of the death
penalty; and
(7) have attended within the last 2 years a continuing
legal education program of at least 12 hours’ duration devoted
specifically to the defense of capital cases.
(g) Co-counsel. Trial co-counsel assignments should be
given to attorneys who:
(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and
(2) qualify as lead counsel under subdivision (f) of these
standards or meet the following requirements:
(A) are experienced and active trial practitioners
with at least 3 years of litigation experience in the field of criminal
law; and
(B) have prior experience as lead counsel or
cocounsel in no fewer than 3 state or federal jury trials of serious
and complex cases which were tried to completion, at least 2 of
which were trials in which the charge was murder; or alternatively,
of the 3 jury trials, at least 1 was a murder trial and one was a
felony jury trial; and
(C) are familiar with the practice and procedure of
the criminal courts of the jurisdiction; and
(D) have demonstrated the necessary proficiency
and commitment which exemplify the quality of representation
appropriate to capital cases, and
(E) have attended within the last 2 years a
continuing legal education program of at least 12 hours’ duration
devoted specifically to the defense of capital cases.
(h) Appellate Counsel. Appellate counsel assignments
should be given to attorneys who:
(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and
(2) are experienced and active trial or appellate
practitioners with at least 5 years of experience in the field of
criminal law; and
(3) have prior experience in the appeal of at least 1 case
in which a sentence of death was imposed, as well as prior
experience as lead counsel in the appeal of no fewer than 3 felony
convictions in federal or state court, at least 1 of which was an
appeal of a murder conviction; or alternatively, have prior
experience as lead counsel in the appeal of no fewer than 6 felony
convictions in federal or state court, at least 2 of which were
appeals of a murder conviction; and
(4) are familiar with the practice and procedure of the
appellate courts of the jurisdiction; and
(5) have demonstrated the necessary proficiency and
commitment which exemplify the quality of representation
appropriate to capital cases; and
(6) have attended within the last 2 years a continuing
legal education program of at least 12 hours’ duration devoted
specifically to the defense of capital cases.
(i) Notice of Appearance. An attorney who is retained or
appointed in place of the Public Defender or Criminal Conflict and
Civil Regional Counsel to represent a defendant in a capital case
must immediately file a notice of appearance certifying that the
attorney meets the qualifications of this rule. If the office of the
Public Defender or Criminal Conflict and Civil Regional Counsel is
appointed to represent the defendant, the Public Defender or
Criminal Conflict and Civil Regional Counsel must certify that the
individuals or assistants assigned as lead and co-counsel meet the
requirements of this rule. A notice of appearance filed under this
rule must be served on the defendant.
(j) Limitation on Caseloads.
(1) Generally. As soon as practicable, the trial court
should conduct an inquiry relating to counsel’s availability to
provide effective assistance of counsel to the defendant. In
assessing the availability of prospective counsel, the court should
consider the number of capital or other cases then being handled
by the attorney and any other circumstances bearing on the
attorney’s readiness to provide effective assistance of counsel to the
defendant in a timely fashion. No appointment should be made to
an attorney who may be unable to provide effective legal
representation as a result of an unrealistically high caseload.
Likewise, a private attorney should not undertake the
representation of a defendant in a capital case if the attorney’s
caseload is high enough that it might impair the quality of legal
representation provided to the defendant.
(2) Public Defender. If a Public Defender or Criminal
Conflict and Civil Regional Counsel seeks to refuse appointment to
a new capital case based on a claim of excessive caseload, the
matter should be referred to the Chief Judge of the circuit or to the
administrative judge as so designated by the Chief Judge. The Chief
Judge or the chief judge’s designate should coordinate with the
Public Defender or Criminal Conflict and Civil Regional Counsel to
assess the number of attorneys involved in capital cases, evaluate
the availability of prospective attorneys, and resolve any
representation issues.
(k) Qualifications of Lead Counsel in Capital
Postconviction Proceedings. In order to serve as lead counsel, as
set forth in rule 3.851, for the defendant in a capital postconviction
proceeding, an attorney must have:
(1) been a member of any bar for at least 5 years; and
(2) at least 3 years of experience in the field of
postconviction litigation; and
(3) prior participation in a combined total of 5
proceedings in any of the following areas, at least 2 of which must
be from subdivision (k)(3)(C), (k)(3)(D), or (k)(3)(E) below:
(A) capital trials;
(B) capital sentencings;
(C) capital postconviction evidentiary hearings;
(D) capital collateral postconviction appeals;
(E) capital federal habeas proceedings.
(l) Exceptional Circumstances. In the event that the trial
court determines that exceptional circumstances require counsel
not meeting the requirements of this rule, the trial court must enter
an order specifying, in writing, the exceptional circumstances
requiring deviation from the rule and the court’s explicit
determination that counsel chosen will provide competent
representation in accord with the policy concerns of the rule.
Committee Comments
These standards are based on the general premise that the
defense of a capital case requires specialized skill and expertise.
The Supreme Court has not only the authority, but the
constitutional responsibility to ensure that indigent defendants are
provided with competent counsel, especially in capital cases where
the State seeks to take the life of the indigent defendant. The
Supreme Court also has exclusive jurisdiction under Article V
section 15 of the Florida Constitution to “[r]egulate the admission of
persons to the practice of law and the discipline of persons
admitted.” Implied in this grant of authority is the power to set the
minimum requirements for the admission to practice law, see In re
Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well
as the minimum requirements for certain kinds of specialized legal
work. The Supreme Court has adopted minimum educational and
experience requirements for board certification in other specialized
fields of the law.
The experience and continuing educational requirements in
these standards are based on existing local standards in effect
throughout the state as well as comparable standards in effect in
other states. Specifically, the committee considered the standards
for the appointment of counsel in capital cases in the Second, Sixth,
Eleventh, Fifteenth, and Seventeenth Circuits, the statewide
standards for appointing counsel in capital cases in California,
Indiana, Louisiana, Ohio, and New York, and the American Bar
Association standards for appointment of counsel in capital cases.
These standards are not intended to establish any
independent legal rights. For example, the failure to appoint
cocounsel, standing alone, has not been recognized as a ground for
relief from a conviction or sentence. See Ferrell v. State, 653 So. 2d
367 (Fla. 1995); Lowe v. State, 650 So. 2d 969 (Fla. 1994);
Armstrong v. State, 642 So. 2d 730 (Fla. 1994). Rather, these cases
stand for the proposition that a showing of inadequacy of
representation in the particular case is required. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
These rulings are not affected by the adoption of these standards.
Any claims of ineffective assistance of counsel will be controlled by
Strickland.
The American Bar Association Standards and many other
state standards require the appointment of two lawyers at the trial
level in every prosecution that could result in the imposition of the
death penalty. The committee has modified this requirement by
allowing the trial court some discretion as to the number of
attorneys, and by eliminating certain provisions that may be
unnecessary or economically unfeasible. Paragraph (e) minimizes
the potential duplication of expenses by limiting the compensable
participation of cocounsel. In addition, the standard adopted herein
requires an initial showing by lead counsel of the need for
cocounsel and, while the standard suggests that cocounsel should
ordinarily be appointed, the ultimate decision is left to the
discretion of the trial court.
The committee emphasizes that the right to appointed counsel
is not enlarged by the application of these standards. The court
should appoint conflict counsel only if there is a conflict and the
defendant otherwise qualifies for representation by the Public
Defender. A defendant who is represented by retained counsel is not
entitled to the appointment of a second lawyer at public expense
merely because that defendant is unable to bear the cost of
retaining two lawyers.
Criminal Court Steering Committee Note
2014 Amendment. The Steering Committee added minimum
requirements for lead counsel in capital postconviction proceedings
to ensure a requisite level of expertise in capital postconviction
cases and to permit the State the opportunity to seek opt-in
treatment pursuant to 28 U.S.C. §§ 2261-2266.
RULE 3.113 cases. MINIMUM STANDARDS FOR ATTORNEYS IN
FELONY CASES
Before an attorney may participate as counsel of record in the
circuit court for any adult felony case, including postconviction
proceedings before the trial court, the attorney must complete a
course, approved by The Florida Bar for continuing legal education
credits, of at least 100 minutes and covering the legal and ethical
obligations of discovery in a criminal case, including the
requirements of rule 3.220, and the principles established in Brady
v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405
U.S. 150 (1972).
Criminal Court Steering Committee Commentary
2014 Adoption. The Supreme Court has exclusive jurisdiction
under Article V, section 15 of the Florida Constitution to “regulate
the admission of persons to the practice of law and the discipline of
persons admitted.” Implied in this grant of authority is the power to
set minimum requirements for the admission to practice law, see In
re Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as
well as minimum requirements for certain kinds of specialized legal
work. The Supreme Court has adopted minimum educational and
experience requirements for attorneys in capital cases, see, e.g.,
rule 3.112, and for board certification in other specialized fields of
law.
The concept of a two-hour continuing legal education (CLE)
requirement was proposed in the 2012 Final Report of the Florida
Innocence Commission.
The CLE requirement is not intended to establish any
independent legal rights. Any claim of ineffective assistance of
counsel will be controlled by Strickland v. Washington, 466 U.S. 668
(1984).
It is intended that The Florida Prosecuting Attorneys
Association and The Florida Public Defender Association will
develop a seminar that will be approved for CLE credit by The
Florida Bar. It is also intended that attorneys will be able to
electronically access that seminar, at no cost, via The Florida Bar’s
website, the Florida Prosecuting Attorneys Association’s website,
and/or the Florida Public Defender Association’s website.
The rule is not intended to apply to counsel of record in direct
or collateral adult felony appeals.
RULE 3.115 cases. DUTIES OF STATE ATTORNEY; CRIMINAL
INTAKE
The state attorney shall provide the personnel or procedure for
criminal intake in the judicial system. All sworn complaints
charging the commission of a criminal offense shall be filed in the
office of the clerk of the circuit court and delivered to the state
attorney for further proceedings.
RULE 3.116 cases. USE OF COMMUNICATION TECHNOLOGY
(a) Definitions. The definitions for the terms “audio
communication technology,” “audio-video communication
technology,” and “communication technology” in Florida Rule of
General Practice and Judicial Administration 2.530(a) apply to this
rule and to other rules in the Florida Rules of Criminal Procedure
that use those terms.
(b) Generally. Use of communication technology in
proceedings subject to the Florida Rules of Criminal Procedure is
governed by this rule, except that rules 3.130(a), 3.132(j), 3.160(a),
3.180(b), 3.220(h), and 3.851(f) govern the use of audio-video
communication technology in the manner authorized by those
rules.
(c) Pretrial Conferences. A judge may, upon the court’s
own motion or upon the written request of a party, direct that
communication technology be used by one or more parties for
attendance at a pretrial conference, except that, before a judge may
direct that the defendant participate in the pretrial conference using
communication technology, the defendant or the defendant’s
counsel must waive the defendant’s physical attendance at the
pretrial conference pursuant to rules 3.180(a)(3) and 3.220(o)(1). A
judge must give notice to the parties and consider any objections
they may have to the use of communication technology before
directing that communication technology be used. The decision to
use communication technology over the objection of parties will be
in the discretion of the trial court, except as noted below.
(1) Non-Evidentiary Pretrial Conferences. A judge must
grant a request to use communication technology for a non-
evidentiary pretrial conference scheduled for 30 minutes or less
unless the judge determines that good cause exists to deny the
request.
(d) Testimony.
(1) Generally. A judge may allow testimony to be taken
through communication technology if all parties consent.
(2) Procedure. Any party desiring to present testimony
through communication technology must, prior to the hearing or
trial at which the testimony is to be presented, contact all parties to
determine whether each party consents to this form of testimony.
The party seeking to present the testimony must move for
permission to present testimony through communication
technology, which motion must set forth good cause as to why the
testimony should be allowed in this form.
(3) Oath. The oath must be administered for testimony
taken through communication technology in the manner provided
by Florida Rule of General Practice and Judicial Administration
2.530(b)(2)(B).
(4) Confrontation Rights. The defendant must make an
informed waiver of any otherwise applicable confrontation rights.
(e) Burden of Expense. The cost for the use of the
communication technology is the responsibility of the requesting
party unless otherwise directed by the court.
Workgroup on the Continuity of Court Operations and
Proceedings During and After COVID-19 Note
2022 Adoption. This rule is created to authorize the use of
communication technology for criminal proceedings while
safeguarding the rights of the accused. It is based on Florida Rule of
General Practice and Judicial Administration 2.530, as amended by
In re Amends. to Fla. Rules of Jud. Admin., 73 So. 3d 210, 211 (Fla.
2011), but updates and revises the text of that version of the rule
to: (1) use the terms “audio communication technology,” “audio-
video communication technology,” and “communication
technology”; (2) identify other rules in the Florida Rules of Criminal
Procedure that will continue to govern the use of audio-video
communication technology under specified circumstances; (3)
consolidate subdivisions (b) and (c) of rule 2.530, as amended in
2011, to recognize proposed amended rules 3.180(a)(3) and
3.220(o)(1) and provide that a court may, on its own motion or the
written request of a party, direct the use of communication
technology by one or more parties for attendance at a pretrial
conference, except that, before a judge may direct that the
defendant participate in the pretrial conference using
communication technology, a waiver of the defendant’s physical
attendance must be obtained pursuant to rules 3.180(a)(3) and
3.220(o)(1); (4) substitute the term “a pretrial conference” for the
phrase “a motion hearing, pretrial conference, or a status
conference” used in subdivision (b) of rule 2.530, as amended in
2011, because case law has construed the term in the context of
rules 3.180(a)(3) and 3.220(o)(1) as including a motion hearing and
a status conference; and (5) add authority for the oath to be
administered to a witness who is testifying through audio-video
communication technology by an authorized person who is not
physically present with the witness subject to specified
requirements.
III. PRELIMINARY PROCEEDINGS
RULE 3.120 cases. COMMITTING JUDGE
Each state and county judge is a committing judge and may
issue a summons to, or a warrant for the arrest of, a person against
whom a complaint is made in writing and sworn to before a person
authorized to administer oaths, when the complaint states facts
that show that such person violated a criminal law of this state
within the jurisdiction of the judge to whom the complaint is
presented. The judge may take testimony under oath to determine if
there is reasonable ground to believe the complaint is true. The
judge may commit the offender to jail, may order the defendant to
appear before the proper court to answer the charge in the
complaint, or may discharge the defendant from custody or from
any undertaking to appear. The judge may authorize the clerk to
issue a summons.
Committee Notes
1968 Adoption. This is substantially the same as part of
section 901.01, Florida Statutes. (The remaining part should be
retained as a statute.) It differs from the statute by requiring the
complaint to be in writing and by identifying the initiating
instrument as a “complaint,” thus adopting the federal terminology
which is more meaningful and modern. Some doubt was expressed
as to whether the terms of the statute incorporated in the rule are
within the rulemaking power of the Supreme Court.
1972 Amendment. Substantially same as former rule. Altered
to incorporate the provision for testimony under oath formerly
contained in rule 3.121(a), and authorize the execution of the
affidavit before a notary or other person authorized to administer
oaths.
RULE 3.121 cases. ARREST WARRANT
(a) Issuance. An arrest warrant, when issued, shall:
(1) be in writing and in the name of the State of Florida;
(2) set forth substantially the nature of the offense;
(3) command that the person against whom the
complaint was made be arrested and brought before a judge;
(4) specify the name of the person to be arrested or, if
the name is unknown to the judge, designate the person by any
name or description by which the person can be identified with
reasonable certainty, and include a photograph if reasonably
available;
(5) state the date when issued and the county where
issued;
(6) be signed by the judge with the title of the office; or,
may be electronically signed by the judge if the arrest warrant bears
the affiant’s signature, or electronic signature, is supported by an
oath or affirmation administered by the judge, or other person
authorized by law to administer oaths, and, if submitted
electronically, is submitted by reliable electronic means; and
(7) for offenses where a right to bail exists, set the
amount of bail or other conditions of release, and the return date.
(b) Amendment. No arrest warrant shall be dismissed nor
shall any person in custody be discharged because of any defect as
to form in the warrant; but the warrant may be amended by the
judge to remedy such defect.
Committee Notes
1968 Adoption. (a) This is substantially the same as section
901.02, Florida Statutes, except that the rule requires a written
complaint. Also, the rule does not incorporate that seldom used
part of the statute that permits the magistrate to issue an arrest
warrant upon affidavits made before the prosecuting attorney.
(b) This is the same as section 901.03, Florida Statutes.
(c) This is the same as section 901.05, Florida Statutes,
except for modernizing the language.
1972 Amendment. (a) of former rule has been deleted, as its
substance is now contained in rules 3.120 and 3.130; (b) has been
renumbered as (a); (c) has been renumbered as (b).
RULE 3.125 cases. NOTICE TO APPEAR
(a) Definition. Unless indicated otherwise, notice to appear
means a written order issued by a law enforcement officer in lieu of
physical arrest requiring a person accused of violating the law to
appear in a designated court or governmental office at a specified
date and time.
(b) By Arresting Officer. If a person is arrested for an
offense declared to be a misdemeanor of the first or second degree
or a violation, or is arrested for violation of a municipal or county
ordinance triable in the county, and demand to be taken before a
judge is not made, notice to appear may be issued by the arresting
officer unless:
(1) the accused fails or refuses to sufficiently identify
himself or herself or supply the required information;
(2) the accused refuses to sign the notice to appear;
(3) the officer has reason to believe that the continued
liberty of the accused constitutes an unreasonable risk of bodily
injury to the accused or others;
(4) the accused has no ties with the jurisdiction
reasonably sufficient to assure the accused’s appearance or there is
substantial risk that the accused will refuse to respond to the
notice;
(5) the officer has any suspicion that the accused may
be wanted in any jurisdiction; or
(6) it appears that the accused previously has failed to
respond to a notice or a summons or has violated the conditions of
any pretrial release program.
(c) By Booking Officer. If the arresting officer does not
issue notice to appear because of one of the exceptions listed in
subdivision (b) and takes the accused to police headquarters, the
booking officer may issue notice to appear if the officer determines
that there is a likelihood that the accused will appear as directed,
based on a reasonable investigation of the accused’s:
(1) residence and length of residence in the community;
(2) family ties in the community;
(3) employment record;
(4) character and mental condition;
(5) past record of convictions; or
(6) past history of appearance at court proceedings.
(d) How and When Served. If notice to appear is issued, it
shall be prepared in quadruplicate. The officer shall deliver 1 copy
of the notice to appear to the arrested person and the person, to
secure release, shall give a written promise to appear in court by
signing the 3 remaining copies: 1 to be retained by the officer and 2
to be filed with the clerk of the court. These 2 copies shall be sworn
to by the arresting officer before a notary public or a deputy clerk. If
notice to appear is issued under subdivision (b), the notice shall be
issued immediately upon arrest. If notice to appear is issued under
subdivision (c), the notice shall be issued immediately on
completion of the investigation. The arresting officer or other duly
authorized official then shall release from custody the person
arrested.
(e) Copy to the Clerk of the Court. With the sworn notice
to appear, the arresting officer shall file with the clerk a list of
witnesses and their addresses and a list of tangible evidence in the
cause. One copy shall be retained by the officer and 2 copies shall
be filed with the clerk of the court.
(f) Copy to State Attorney. The clerk shall deliver 1 copy of
the notice to appear and schedule of witnesses and evidence filed
therewith to the state attorney.
(g) Contents. If notice to appear is issued, it shall contain
the:
(1) name and address of the accused;
(2) date of offense;
(3) offense(s) charged — by statute and municipal
ordinance if applicable;
(4) counts of each offense;
(5) time and place that the accused is to appear in
court;
(6) name and address of the trial court having
jurisdiction to try the offense(s) charged;
(7) name of the arresting officer;
(8) name(s) of any other person(s) charged at the same
time; and
(9) signature of the accused.
(h) Failure to Appear. If a person signs a written notice to
appear and fails to respond to the notice to appear, a warrant of
arrest shall be issued under rule 3.121.
(i) Traffic Violations Excluded. Nothing contained herein
shall prevent the operation of a traffic violations bureau, the
issuance of citations for traffic violations, or any procedure under
chapter 316, Florida Statutes.
(j) Rules and Regulations. Rules and regulations of
procedure governing the exercise of authority to issue notices to
appear shall be established by the chief judge of the circuit.
(k) Procedure by Court.
(1) When the accused appears before the court under
the requirements of the notice to appear, the court shall advise the
defendant as set forth in rule 3.130(b), and the provisions of that
rule shall apply. The accused at such appearance may elect to
waive the right to counsel and trial and enter a plea of guilty or nolo
contendere by executing the waiver form contained on the notice to
appear, and the court may enter judgment and sentence in the
cause.
(2) In the event the defendant enters a plea of not
guilty, the court may set the cause for jury or nonjury trial on the
notice to appear under the provisions of rules 3.140 and 3.160.
When the court sets a trial date by the court, the clerk shall,
without further praecipe, issue witness subpoenas to the law
enforcement officer who executed the notice to appear and to the
witnesses whose names and addresses appear on the list filed by
the officer, requiring their attendance at trial.
(l) Form of Notice to Appear and Schedule of Witnesses
and Evidence. The notice to appear and schedule of witnesses and
evidence shall be in substantially the following form:
IN THE COUNTY COURT, IN AND FOR
COUNTY, FLORIDA
NOTICE TO APPEAR
Agency Case #
STATE OF FLORIDA, COUNTY OF
In the name of County, Florida: The undersigned
certifies that he or she has just and reasonable grounds to believe,
and does believe, that:
On .....(date)....., at ( )a.m. ( )p.m.
Last Name First M.I. Aliases
Street—City and State Date and Place of Birth
Phone Race/Sex Height Weight Hair Eyes Scars/Marks
Occupation Place of Employment Employment Phone
Complexion Driver’s License # Yr./St. Social Security #
at (location)
in County, Florida, committed the following offense(s):
(1) (2)
in violation of section(s): : ( ) State Statute
( ) Municipal Ord.
DID (Narrative):
. . .
Name of Officer ID Agency
[ ] Mandatory appearance in court,
Location
on .....(date)....., at ______ ( )a.m. ( )p.m.
[ ] You need not appear in court, but must comply with
instructions on back.
CO-DEFENDANTS:
[ ] Cited
1. [ ] Jailed
Name DOB Address
[ ] Cited
2. [ ] Jailed
Name DOB Address
If you are a person with a disability who needs any
accommodation in order to participate in this proceeding, you
are entitled, at no cost to you, to the provision of certain
assistance. Please contact [identify applicable court personnel
by name, address, and telephone number] at least 7 days before
your scheduled court appearance, or immediately upon
receiving this notification if the time before the scheduled
appearance is less than 7 days; if you are hearing or voice
impaired, call 711.
I AGREE TO APPEAR AT THE TIME AND PLACE DESIGNATED
ABOVE TO ANSWER THE OFFENSE CHARGED OR TO PAY THE
FINE SUBSCRIBED. I UNDERSTAND THAT SHOULD I WILLFULLY
FAIL TO APPEAR BEFORE THE COURT AS REQUIRED BY THIS
NOTICE TO APPEAR, I MAY BE HELD IN CONTEMPT OF COURT
AND A WARRANT FOR MY ARREST SHALL BE ISSUED.
Signature of Defendant
I swear the above and reverse and attached statements are
true and correct to the best of my knowledge and belief.
Complainant
Agency or Department
Sworn to and subscribed before me on .....(date)......
Notary Public, State of Florida
[Editor’s Note: Jurat should include identification information required
by F.S. 117.05(13).]
WAIVER INFORMATION
If you desire to plead guilty or nolo contendere (no contest)
and you need not appear in court as indicated on the face of this
notice, you may present this notice at the county court named on
the reverse of this page.
From .....(date)....., to .....(date).....,
Hour Hour
and pay a fine of dollars in cash, money order, or
certified check.
The waiver below must be completed and attached. Read
carefully.
Your failure to answer this summons in the manner
subscribed will result in a warrant being issued on a separate and
additional charge.
“In consideration of my not appearing in court, I the
undersigned, do hereby enter my appearance on the affidavit for the
offense charged on the other side of this notice and waive the
reading of the affidavit in the above named cause and the right to
be present at the trial of said action. I hereby enter my plea of
Guilty [ ] or Nolo Contendere [ ], and waive my right to prosecute
appeal or error proceedings.
“I understand the nature of the charge against me; I
understand my right to have counsel and waive this right and the
right to a continuance. I waive my right to trial before a judge or
jury. I plead Guilty [ ] or Nolo Contendere [ ] to the charge, being
fully aware that my signature to this plea will have the same effect
as a judgment of this court.”
Total Fine and Cost
Defendant Signature
Address
IN THE COUNTY COURT, IN AND FOR
COUNTY, FLORIDA
SCHEDULE OF WITNESSES AND
EVIDENCE FOR NOTICE TO APPEAR
Agency Case #
Last Name First M.I. Aliases
Address
.....(date of notice to appear)..... Offense(s): (1)
(2)
TANGIBLE EVIDENCE: (If none, write “None”)
Item:
Obtained from (person and/or place):
first received by:
given to:
WITNESSES: (If none, write “None”)
#1 Name:
Res. Tel. No. Address:
Bus. Tel. No. Business:
Testimony:
#2 Name:
Res. Tel. No. Address:
Bus. Tel. No. Business:
Testimony:
#3 Name:
Res. Tel. No. Address:
Bus. Tel. No. Business:
Testimony:
I certify that the foregoing is a complete list of witnesses and
evidence known to me.
Investigating Officer
Agency
Committee Notes
1992 Amendment. The amendment deletes subdivision (k)
and reletters subdivisions (l) and (m). The elimination of subdivision
(k) will entitle individuals charged with criminal violations to the
same discovery, without regard to the nature of the charging
instrument. As amended, persons charged by way of a notice to
appear can obtain the same discovery as persons charged by way of
either an information or an indictment. In this regard the committee
also has proposed amendments to rule 3.220(b)(1), (b)(2), (c)(1), and
(h)(1) to change the reference from “indictment or information” to
“charging document.”
RULE 3.130 cases. FIRST APPEARANCE
(a) Prompt First Appearance. Except when previously
released in a lawful manner, every arrested person must be taken
before a judge, either in person or by audio-video communication
technology in the discretion of the court, within 24 hours of arrest.
In the case of a child in the custody of juvenile authorities, against
whom an information or indictment has been filed, the child must
be taken for a first appearance hearing within 24 hours of the filing
of the information or indictment. The chief judge of the circuit for
each county within the circuit must designate 1 or more judges
from the circuit court, or county court, to be available for the first
appearance and proceedings. The state attorney or an assistant
state attorney and public defender or an assistant public defender
must attend the first appearance proceeding either in person or by
communication technology, as determined in the discretion of the
court. First appearance hearings must be held with adequate notice
to the public defender and state attorney. An official record of the
proceedings must be maintained. If the defendant has retained
counsel or ex-presses a desire to and is financially able, the
attendance of the public defender or assistant public defender is
not required at the first appearance, and the judge must follow the
procedure outlined in subdivision (c)(2).
(b) Advice to Defendant.
(1) Notice of Charges and Rights. At the defendant’s first
appearance the judge must immediately inform the defendant of the
charge, including an alleged violation of probation or community
control and provide the defendant with a copy of the complaint. The
judge must also adequately advise the defendant that:
(A) the defendant is not required to say anything,
and that anything the defendant says may be used against him or
her;
(B) if unrepresented, that the defendant has a
right to counsel, and, if financially unable to afford counsel, that
counsel will be appointed; and
(C) the defendant has a right to communicate with
counsel, family, or friends, and if necessary, will be provided
reasonable means to do so.
(2) Use of Video Recording to Provide Notice of Rights. If
the defendant was advised of the rights listed in subdivisions
(b)(1)(A)–(b)(1)(C) by pre-recorded video, the judge must confirm
separately with each individual defendant that such defendant had
an opportunity to view and understands the rights explained in the
video recording.
(c) Counsel for Defendant.
(1) Appointed Counsel. If practicable, the judge should
determine before the first appearance whether the defendant is
financially able to afford counsel and whether the defendant desires
representation. When the judge determines that the defendant is
entitled to court-appointed counsel and desires counsel, the judge
must immediately appoint counsel. This determination must be
made and, if required, counsel appointed no later than the time of
the first appearance and before any other proceedings at the first
appearance. If necessary, counsel may be appointed for the limited
purpose of representing the defendant only at first appearance or at
subsequent proceedings before the judge.
(2) Retained Counsel. When the defendant has
employed counsel or is financially able and desires to employ
counsel to represent him or her at first appearance, the judge must
allow the defendant a reasonable time to send for counsel and
must, if necessary, postpone the first appearance hearing for that
purpose. The judge must also, on request of the defendant, require
an officer to communicate a message to such counsel as the
defendant may name. The officer must, with diligence and without
cost to the defendant if the counsel is within the county, perform
the duty. If the postponement will likely result in the continued
incarceration of the defendant beyond a 24-hour period, at the
request of the defendant the judge may appoint counsel to
represent the defendant for the first appearance hearing.
(3) Opportunity to Confer. No further steps in the
proceedings should be taken until the defendant and counsel have
had an adequate opportunity to confer, unless the defendant has
intelligently waived the right to be represented by counsel.
(4) Waiver of Counsel. The defendant may waive the
right to counsel at first appearance. The waiver, containing an
explanation of the right to counsel, must be in writing and signed
and dated by the defendant. This written waiver of counsel must, in
addition, contain a statement that it is limited to first appearance
only and must in no way be construed to be a waiver of counsel for
subsequent proceedings.
(d) Pretrial Release. The judge must proceed to determine
conditions of release under rule 3.131 or rule 3.132. For a
defendant who has been arrested for violation of his or her
probation or community control by committing a new violation of
law, the judge:
(1) may order the offender to be taken before the court
that granted the probation or community control if the offender
admits the violation; or
(2) if the offender does not admit the violation at first
appearance hearing, the judge may commit and order the offender
to be brought before the court that granted probation or community
control, or may release the offender with or without bail to await
further hearing, notwithstanding section 907.041, Florida Statutes,
relating to pretrial detention and release. In determining whether to
require or set the amount of bail, the judge may consider whether
the offender is more likely than not to receive a prison sanction for
the violation.
Committee Notes
1972 Amendment. Same as prior rule except (b), which is
new.
RULE 3.131 cases. PRETRIAL RELEASE
(a) Right to Pretrial Release. Unless charged with a capital
offense or an offense punishable by life imprisonment and the proof
of guilt is evident or the presumption is great, every person charged
with a crime or violation of municipal or county ordinance shall be
entitled to pretrial release on reasonable conditions. As a condition
of pretrial release, whether such release is by surety bail bond or
recognizance bond or in some other form, the defendant shall
refrain from any contact of any type with the victim, except through
pretrial discovery pursuant to the Florida Rules of Criminal
Procedure and shall comply with all conditions of pretrial release as
ordered by the court. Upon motion by the defendant when bail is
set, or upon later motion properly noticed pursuant to law, the
court may modify the condition precluding victim contact if good
cause is shown and the interests of justice so require. The victim
shall be permitted to be heard at any proceeding in which such
modification is considered, and the state attorney shall notify the
victim of the provisions of this subdivision and of the pendency of
any such proceeding. If no conditions of release can reasonably
protect the community from risk of physical harm to persons,
assure the presence of the accused at trial, or assure the integrity of
the judicial process, the accused may be detained.
(b) Hearing at First Appearance—Conditions of Release.
(1) Unless the state has filed a motion for pretrial
detention pursuant to rule 3.132, the court shall conduct a hearing
to determine pretrial release. For the purpose of this rule, bail is
defined as any of the forms of release stated below. Except as
otherwise provided by this rule, there is a presumption in favor of
release on nonmonetary conditions for any person who is granted
pretrial release. The judicial officer shall impose the first of the
following conditions of release that will reasonably protect the
community from risk of physical harm to persons, assure the
presence of the accused at trial, or assure the integrity of the
judicial process; or, if no single condition gives that assurance,
shall impose any combination of the following conditions:
(A) personal recognizance of the defendant;
(B) execution of an unsecured appearance bond in
an amount specified by the judge;
(C) placement of restrictions on the travel,
association, or place of abode of the defendant during the period of
release;
(D) placement of the defendant in the custody of a
designated person or organization agreeing to supervise the
defendant;
(E) execution of a bail bond with sufficient solvent
sureties, or the deposit of cash in lieu thereof; provided, however,
that any criminal defendant who is required to meet monetary bail
or bail with any monetary component may satisfy the bail by
providing an appearance bond; or
(F) any other condition deemed reasonably
necessary to assure appearance as required, including a condition
requiring that the person return to custody after specified hours.
(2) The judge shall at the defendant’s first appearance
consider all available relevant factors to determine what form of
release is necessary to assure the defendant’s appearance. If a
monetary bail is required, the judge shall determine the amount.
Any judge setting or granting monetary bond shall set a separate
and specific bail amount for each charge or offense. When bail is
posted each charge or offense requires a separate bond.
(3) In determining whether to release a defendant on
bail or other conditions, and what that bail or those conditions may
be, the court may consider the nature and circumstances of the
offense charged and the penalty provided by law; the weight of the
evidence against the defendant; the defendant’s family ties, length
of residence in the community, employment history, financial
resources, need for substance abuse evaluation or treatment, and
mental condition; the defendant’s past and present conduct,
including any record of convictions, previous flight to avoid
prosecution, or failure to appear at court proceedings; the nature
and probability of danger that the defendant’s release poses to the
community; the source of funds used to post bail; whether the
defendant is already on release pending resolution of another
criminal proceeding or is on probation, community control, parole,
or other release pending completion of sentence; and any other
facts the court considers relevant.
(4) No person charged with a dangerous crime, as
defined in section 907.041(4)(a), Florida Statutes, shall be released
on nonmonetary conditions under the supervision of a pretrial
release service, unless the service certifies to the court that it has
investigated or otherwise verified the conditions set forth in section
907.041(3)(b), Florida Statutes.
(5) All information provided by a defendant in
connection with any application for or attempt to secure bail, to any
court, court personnel, or individual soliciting or recording such
information for the purpose of evaluating eligibility for or securing
bail for the defendant, under circumstances such that the
defendant knew or should have known that the information was to
be used in connection with an application for bail, shall be
accurate, truthful, and complete, without omissions, to the best
knowledge of the defendant. Failure to comply with the provisions of
this subdivision may result in the revocation or modification of bail.
However, no defendant shall be compelled to provide information
regarding his or her criminal record.
(6) Information stated in, or offered in connection with,
any order entered pursuant to this rule need not strictly conform to
the rules of evidence.
(c) Consequences of Failure to Appear.
(1) Any defendant who willfully and knowingly fails to
appear and breaches a bond as specified in section 903.26, Florida
Statutes, and who voluntarily appears or surrenders shall not be
eligible for a recognizance bond.
(2) Any defendant who willfully and knowingly fails to
appear and breaches a bond as specified in section 903.26, Florida
Statutes, and who is arrested at any time following forfeiture shall
not be eligible for a recognizance bond or any form of bond that
does not require a monetary undertaking or commitment equal to
or greater than $2,000 or twice the value of the monetary
commitment or undertaking of the original bond, whichever is
greater.
(d) Subsequent Application for Setting or Modification of
Bail.
(1) When a judicial officer not possessing trial
jurisdiction orders a defendant held to answer before a court having
jurisdiction to try the defendant, and bail has been denied or
sought to be modified, application by motion may be made to the
court having jurisdiction to try the defendant or, in the absence of
the judge of the trial court, to the circuit court. The motion shall be
determined promptly. No judge of a court of equal or inferior
jurisdiction may remove a condition of bail or reduce the amount of
bond required, unless the judge:
(A) imposed the conditions of bail or set the
amount of bond required;
(B) is the chief judge of the circuit in which the
defendant is to be tried;
(C) has been assigned to preside over the criminal
trial of the defendant; or
(D) is the first appearance judge and was
authorized by the judge initially setting or denying bail to modify or
set conditions of release.
(2) Applications by the defendant for modification of
bail on any felony charge must be heard by a court in person at a
hearing, with the defendant present and with at least 3 hours’
notice to the state attorney and county attorney, if bond forfeiture
proceedings are handled by the county attorney. The state may
apply for modification of bail by showing good cause and with at
least 3 hours’ notice to the attorney for the defendant.
(3) If any trial court fixes bail and refuses its reduction
before trial, the defendant may institute habeas corpus proceedings
seeking reduction of bail. If application is made to the supreme
court or district court of appeal, notice and a copy of such
application shall be given to the attorney general and the state
attorney. Such proceedings shall be determined promptly.
(e) Bail Before Conviction; Condition of Undertaking.
(1) If a person is admitted to bail for appearance for a
preliminary hearing or on a charge that a judge is empowered to
try, the condition of the undertaking shall be that the person will
appear for the hearing or to answer the charge and will submit to
the orders and process of the judge trying the same and will not
depart without leave.
(2) If a person is admitted to bail after being held to
answer by a judge or after an indictment or information on which
the person is to be tried has been filed, the condition of the
undertaking shall be that the person will appear to answer the
charges before the court in which the person may be prosecuted
and submit to the orders and process of the court and will not
depart without leave.
(f) Revocation of Pretrial Release.
(1) Any judge presiding at a first appearance hearing
may revoke a defendant’s pretrial release status pursuant to section
903.0471, Florida Statutes, on a case not assigned to the first
appearance judge but that is pending in the same judicial circuit as
the first appearance hearing.
(2) The court must revoke pretrial release for a person
who commits a violation of section 843.23, Florida Statutes, while
the person is on pretrial release.
(3) The court in its discretion for good cause, any time
after a defendant who is at large on bail appears for trial, may
commit the defendant to the custody of the proper official to abide
by the judgment, sentence, and any further order of the court.
(g) Arrest and Commitment by Court. The court in which
the cause is pending may direct the arrest and commitment of the
defendant who is at large on bail when:
(1) there has been a breach of the undertaking;
(2) it appears that the defendant’s sureties or any of
them are dead or cannot be found or are insufficient or have ceased
to be residents of the state; or
(3) the court is satisfied that the bail should be
increased or new or additional security required.
The order for the commitment of the defendant shall recite generally
the facts on which it is based and shall direct that the defendant be
arrested by any official authorized to make arrests and that the
defendant be committed to the official in whose custody the
defendant would be if the defendant had not been given bail, to be
detained by such official until legally discharged. The defendant
shall be arrested pursuant to such order on a certified copy thereof,
in any county, in the same manner as on a warrant of arrest. If the
order provided for is made because of the failure of the defendant to
appear for judgment, the defendant shall be committed. If the order
is made for any other cause, the court may determine the
conditions of release, if any.
(h) Bail after Recommitment. If the defendant applies to be
admitted to bail after recommitment, the court that recommitted
the defendant or the court under (d)(1) shall determine conditions of
release, if any, subject to the limitations of subdivision (b).
(i) Qualifications of Surety after Order of
Recommitment. If the defendant offers bail after recommitment,
each surety shall possess the qualifications and sufficiency and the
bail shall be furnished in all respects in the manner prescribed for
admission to bail before recommitment.
(j) Issuance of Capias; Bail Specified. On the filing of
either an indictment or information charging the commission of a
crime, if the person named therein is not in custody or at large on
bail for the offense charged, the judge shall issue or shall direct the
clerk to issue, either immediately or when so directed by the
prosecuting attorney, a capias for the arrest of the person. If the
person named in the indictment or information is a child and the
child has been served with a promise to appear under the Florida
Rules of Juvenile Procedure, capias need not be issued. Upon the
filing of the indictment or information, the judge shall endorse the
amount of bail, if any, and may authorize the setting or
modification of bail by the judge presiding over the defendant’s first
appearance hearing. This endorsement shall be made on the capias
and signed by the judge.
(k) Summons on Misdemeanor Charge. When a complaint
is filed charging the commission of a misdemeanor only and the
judge deems that process should issue as a result, or when an
indictment or information on which the defendant is to be tried
charging the commission of a misdemeanor only, and the person
named in it is not in custody or at large on bail for the offense
charged, the judge shall direct the clerk to issue a summons
instead of a capias unless the judge has reasonable ground to
believe that the person will not appear in response to a summons,
in which event an arrest warrant or a capias shall be issued with
the amount of bail endorsed on it. The summons shall state
substantially the nature of the offense, the title of the hearing to be
conducted, and shall command the person against whom the
complaint was made to appear before the judge issuing the
summons or the judge having jurisdiction of the offense at a time
and place stated in it.
(l) Summons When Defendant Is Corporation. On the
filing of an indictment or information or complaint charging a
corporation with the commission of a crime, whether felony or
misdemeanor, the judge shall direct the clerk to issue or shall issue
a summons to secure its appearance to answer the charge. If, after
being summoned, the corporation does not appear, a plea of not
guilty shall be entered and trial and judgment shall follow without
further process.
Committee Notes
1968 Adoption. (a) Same as section 903.01, Florida Statutes.
(b) Same as section 903.04, Florida Statutes.
(c) Same as section 903.02, Florida Statutes.
(d) Same as section 903.12, Florida Statutes.
(e) Substantially same as section 903.13, Florida Statutes.
(f) Same as section 903.19, Florida Statutes.
(g) Same as section 918.01, Florida Statutes.
(h) Substantially same as section 903.23, Florida Statutes.
(i) Same as section 903.24, Florida Statutes.
(j) Same as section 903.25, Florida Statutes.
(k) and (l) Formerly rule 3.150(c). These proposals contain the
essentials of present sections 907.01, 907.02, and 901.09(3),
Florida Statutes, a change of some of the terminology being
warranted for purpose of clarity.
(m) Formerly rule 3.150(c). This proposal contains all of the
essentials of section 907.03, Florida Statutes, and that part of
section 901.14, Florida Statutes, pertaining to postindictment or
postinformation procedure. A charge by affidavit is provided.
Although subdivision (g) is the same as section 918.01, Florida
Statutes, its constitutionality was questioned by the subcommittee,
constitutional right to bail and presumption of innocence.
1972 Amendment. Same as prior rule except (b), which is
new. (k), (l), and (m) are taken from prior rule 3.150.
1977 Amendment. This proposal amends subdivision (b)(4) of
the present rule [formerly rule 3.130(b)(4)] to expand the forms of
pretrial release available to the judge. The options are the same as
those available under the federal rules without the presumption in
favor of release on personal recognizance or unsecured appearance.
This proposal leaves it to the sound discretion of the judge to
determine the least onerous form of release which will still insure
the defendant’s appearance.
It also sets forth the specific factors the judge should take into
account in making this determination.
1983 Amendment. Rule 3.131(d) is intended to replace
former rule 3.130(f) and therefore contemplates all subsequent
modifications of bail including all increases or reductions of
monetary bail or any other changes sought by the state or by the
defendant.
Court Comment
1977 Amendment. Subdivision (a) was repealed by Chapter
76-138, §2, Laws of Florida, insofar as it was inconsistent with the
provision of that statute. Subdivision (a) has been amended so as to
comply with the legislative act.
RULE 3.132 cases. PRETRIAL DETENTION
(a) First Appearance Required for Dangerous Crimes. A
person arrested for a dangerous crime listed in section 907.041,
Florida Statutes, must not be released from jail before his or her
first appearance.
(b) Contents of Motion. A motion for pretrial detention
must be in writing and must set forth with particularity the
grounds and the essential facts on which it is based.
(c) Time for Motion. A motion for pretrial detention may be
filed any time before trial.
(d) Time for Hearing. If a judge determines there is probable
cause to believe the defendant committed a capital felony, a life
felony, or a first degree felony, listed as a dangerous crime in section
907.041, Florida Statutes, a pretrial detention hearing must be held
within 5 days after first appearance, or, if there is no first
appearance, within 5 days after arraignment. Otherwise, the
hearing must be held within 5 days after the filing of a motion for
pretrial detention.
(e) Continuances. Either the state or the defendant may
seek a continuance. The state must show good cause for a
continuance. A continuance may not exceed 5 days unless the court
finds that extenuating circumstances justify any further delay, or
upon agreement of the parties with approval of the court. The state
may not be granted more than one continuance.
(f) Custody; Release Conditions.
(1) Dangerous Crime. At first appearance, a judge must
not grant nonmonetary pretrial release if there is probable cause to
believe the defendant committed a dangerous crime listed in section
907.041, Florida Statutes. After first appearance and after a finding
of probable cause, a person arrested for a dangerous crime listed in
section 907.041, Florida Statutes, may not be released on
nonmonetary conditions under the supervision of a pretrial release
service unless the service certifies to the court that it has
investigated or otherwise verified the conditions set forth in section
907.041(3)(b), Florida Statutes.
(2) Unauthorized Aliens. If, at the first appearance
hearing, the court determines there is probable cause to believe the
defendant committed a forcible felony and further determines by a
preponderance of the evidence that the defendant is an
unauthorized alien, the court must presume that the defendant
presents a substantial flight risk and that no conditions of release
will ensure his or her appearance at trial and must order pretrial
detention. The defendant may rebut the presumption by
demonstrating, by a preponderance of the evidence, that
appropriate conditions of release will ensure his or her appearance
at trial. If the court determines the defendant has rebutted the
presumption, it must consider the criteria in section 903.046,
Florida Statutes, and any other relevant facts, to determine whether
to release the defendant on bail or other conditions.
(3) Pretrial Detention Motion Filed at First Appearance.
The defendant may be held in custody pending the completion of a
detention hearing if there is probable cause for the arrest and if the
state filed a motion for pretrial detention at first appearance.
(4) State Announces at First Appearance its Intent to
Move for Pretrial Detention. If there is probable cause for the arrest,
a defendant may be held in jail for up to 4 days if the state informs
the judge at first appearance that it intends to file a motion for
pretrial detention under section 907.041, Florida Statutes. If the
state does not file a motion for pretrial detention within the 4 days,
a judge must determine conditions of release or continued detention
under rule 3.131.
(5) State Does Not Announce Intent to Move for Pretrial
Detention at First Appearance. If there is probable cause for the
arrest and if the state does not inform the judge at first appearance
that it intends to file a motion for pretrial detention under section
907.041, Florida Statutes, the judge must determine conditions of
release or continued detention under rule 3.131.
(6) Pretrial Detention Motion Filed After First
Appearance. If the state filed a motion for pretrial detention after
first appearance and if there is probable cause to believe the
defendant committed the crime for which pretrial detention is
sought, the defendant may be held in custody pending the
completion of the detention hearing, or the judge may issue either
an order to appear or a warrant. The defendant may be held in
custody pending the completion of the detention hearing if he or she
were arrested on a warrant issued under this subdivision. For a
defendant out of custody, if the state is pursuing pretrial detention
under section 907.041, Florida Statutes, the state does not need to
show good cause as required by rule 3.131(d).
(7) Bail Pending Hearing. If a defendant is released on
bail for a dangerous crime that is a capital felony, a life felony, or a
first degree felony pending the completion of a detention hearing,
the court must inform the defendant that if a surety bond is used to
satisfy the monetary component of pretrial release and the motion
for pretrial detention is subsequently granted, the defendant will
not be entitled to return of the premium on the surety bond.
(g) Jurisdiction. A motion for pretrial detention must be
heard by a judge with jurisdiction to conduct the defendant’s trial.
(h) Rights at Hearing. The defendant is entitled to
representation by counsel, to present witnesses and evidence, and
to cross-examine witnesses who testify at the detention hearing. No
testimony by the defendant is admissible to prove guilt at any other
judicial proceeding, but such testimony may be admitted in an
action for perjury, based upon the defendant’s statements made at
the detention hearing, or for impeachment.
(i) Evidence. Evidence secured in violation of the United
States Constitution or the Constitution of the State of Florida is
inadmissible. The rules concerning admissibility of evidence in
criminal trials do not apply to the presentation and consideration of
information at the hearing.
(j) Communication Technology. A judge may allow
testimony using communication technology upon a showing of good
cause. Oaths must be administered in accordance with Florida Rule
of General Practice and Administration 2.530.
(k) Burden of Proof. The state bears the burden of proving
the need for pretrial detention under the substantial probability
standard in section 907.041, Florida Statutes.
(l) Order.
(1) Hearing Required. An order granting or denying
pretrial detention must be issued after a hearing.
(2) Findings. The order may be based solely on hearsay
but must be based solely upon evidence introduced at the hearing
and must be supported by findings of fact and conclusions of law.
The order must be made either in writing or orally on the record
within 24 hours of the conclusion of the hearing.
(3) Mandatory Detention Order. The judge must order
pretrial detention if the judge finds a substantial probability the
defendant committed a capital felony, a life felony, or a first degree
felony, listed as a dangerous crime in section 907.041, Florida
Statutes, and based on the defendant’s past and present patterns of
behavior, consideration of the criteria in section 903.046, Florida
Statutes, and any other relevant facts, that no conditions of release
or bail will reasonably protect the community from risk of physical
harm, ensure the presence of the defendant at trial, or assure the
integrity of the judicial process.
(m) Reconsideration. Either party may move for the order
granting or denying pretrial detention to be reconsidered any time
before trial if the judge finds that information exists that was not
known to the party moving for reconsideration at the time of the
hearing and that such information has a material bearing on
determining whether there are conditions of release or bail that will
reasonably assure the appearance of the defendant as required and
the safety of any other person and the community from harm. The
defendant is entitled to dissolution of a pretrial detention order if
the court finds that a subsequent event eliminated the basis for
detention.
Criminal Court Steering Committee Note
2025 Amendment. Rule 3.132 was substantially revised to reflect
chapters 2023-27 and 2024-157, Laws of Florida. Rule 3.132
applies to pretrial detention under section 907.041, Florida
Statutes. An example of an extenuating circumstance under rule
3.132(e) is the pretrial confinement of the defendant on other
pending charges, or his or her lawful confinement on another
basis.
RULE 3.133 cases. PRETRIAL PROBABLE CAUSE DETERMINATIONS
AND ADVERSARY PRELIMINARY HEARINGS
(a) Nonadversary Probable Cause Determination.
(1) Defendant in Custody. In all cases in which the
defendant is in custody, a nonadversary probable cause
determination shall be held before a judge within 48 hours from the
time of the defendant’s arrest; provided, however, that this
proceeding shall not be required when a probable cause
determination has been previously made by a judge and an arrest
warrant issued for the specific offense for which the defendant is
charged. The judge after a showing of extraordinary circumstance
may continue the proceeding for not more than 24 hours beyond
the 48-hour period. The judge, after a showing that an
extraordinary circumstance still exists, may continue the
proceeding for not more than 24 additional hours following the
expiration of the initial 24-hour continuance. This determination
shall be made if the necessary proof is available at the time of the
first appearance as required under rule 3.130, but the holding of
this determination at that time shall not affect the fact that it is a
nonadversary proceeding.
(2) Defendant on Pretrial Release. A defendant who has
been released from custody before a probable cause determination
is made and who is able to establish that the pretrial release
conditions are a significant restraint on his or her liberty may file a
written motion for a nonadversary probable cause determination
setting forth with specificity the items of significant restraint that a
finding of no probable cause would eliminate. The motion shall be
filed within 21 days from the date of arrest, and notice shall be
given to the state. A judge who finds significant restraints on the
defendant’s liberty shall make a probable cause determination
within 7 days from the filing of the motion.
(3) Standard of Proof. Upon presentation of proof, the
judge shall determine whether there is probable cause for detaining
the arrested person pending further proceedings. The defendant
need not be present. In determining probable cause to detain the
defendant, the judge shall apply the standard for issuance of an
arrest warrant, and the finding may be based on sworn complaint,
affidavit, deposition under oath, or, if necessary, on testimony
under oath properly recorded.
(4) Action on Determination. If probable cause is found,
the defendant shall be held to answer the charges. If probable cause
is not found or the specified time periods are not complied with, the
defendant shall be released from custody unless an information or
indictment has been filed, in which event the defendant shall be
released on recognizance subject to the condition that he or she
appear at all court proceedings or shall be released under a
summons to appear before the appropriate court at a time certain.
Any release occasioned by a failure to comply with the specified
time periods shall be by order of the judge on a written application
filed by the defendant with notice sent to the state or by a judge
without a written application but with notice to the state. The judge
shall order the release of the defendant after it is determined that
the defendant is entitled to release and after the state has a
reasonable period of time, not to exceed 24 hours, in which to
establish probable cause. A release required by this rule does not
void further prosecution by information or indictment but does
prohibit any restraint on liberty other than appearing for trial. A
finding that probable cause does or does not exist shall be made in
writing, signed by the judge, and filed, together with the evidence of
such probable cause, with the clerk of the court having jurisdiction
of the offense for which the defendant is charged.
(b) Adversary Preliminary Hearing.
(1) When Applicable. A defendant who is not charged in
an information or indictment within 21 days from the date of arrest
or service of the capias on him or her shall have a right to an
adversary preliminary hearing on any felony charge then pending
against the defendant. The subsequent filing of an information or
indictment shall not eliminate a defendant’s entitlement to this
proceeding.
(2) Process. The judge shall issue such process as may
be necessary to secure attendance of witnesses within the state for
the state or the defendant.
(3) Witnesses. All witnesses shall be examined in the
presence of the defendant and may be cross-examined. Either party
may request that the witnesses be sequestered. At the conclusion of
the testimony for the prosecution, the defendant who so elects shall
be sworn and testify in his or her own behalf, and in such cases the
defendant shall be warned in advance of testifying that anything he
or she may say can be used against him or her at a subsequent
trial. The defendant may be cross-examined in the same manner as
other witnesses, and any witnesses offered by the defendant shall
be sworn and examined.
(4) Record. At the request of either party, the entire
preliminary hearing, including all testimony, shall be recorded
verbatim stenographically or by mechanical means and at the
request of either party shall be transcribed. If the record of the
proceedings, or any part thereof, is transcribed at the request of the
prosecuting attorney, a copy of this transcript shall be furnished
free of cost to the defendant or the defendant’s counsel.
(5) Action on Hearing. If from the evidence it appears to
the judge that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, the judge
shall cause the defendant to be held to answer to the circuit court;
otherwise, the judge shall release the defendant from custody
unless an information or indictment has been filed, in which event
the defendant shall be released on recognizance subject to the
condition that he or she appear at all court proceedings or shall be
released under a summons to appear before the appropriate court
at a time certain. Such release does not, however, void further
prosecution by information or indictment but does prohibit any
restraint on liberty other than appearing for trial. A finding that
probable cause does or does not exist shall be made in writing,
signed by the judge, and, together with the evidence received in the
cause, shall be filed with the clerk of the circuit court.
(c) Additional Nonadversary Probable Cause
Determinations and Preliminary Hearings. If there has been a
finding of no probable cause at a nonadversary determination or
adversary preliminary hearing, or if the specified time periods for
holding a nonadversary probable cause determination have not
been complied with, a judge may thereafter make a determination of
probable cause at a nonadversary probable cause determination, in
which event the defendant shall be retained in custody or returned
to custody upon appropriate process issued by the judge. A
defendant who has been retained in custody or returned to custody
by such a determination shall be allowed an adversary preliminary
hearing in all instances in which a felony offense is charged.
Committee Notes
1968 Adoption. (Notes are to former rule 1.122.)
(a) Substantially the same as section 902.01, Florida
Statutes; the word “examination” is changed to “hearing” to conform
to modern terminology.
(b) through (j)Substantially the same as sections 902.02
through 902.10, 902.13, and 902.14, Florida Statutes, except for
exchange of “hearing” for “examination.”
(k) Parts of section 902.11, Florida Statutes, and all of
section 902.12, Florida Statutes, were omitted because of conflict
with case law: Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977 (1964); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050,
10 L.Ed.2d 193 (1963).
(l) Taken from Federal Rule of Criminal Procedure 5(c).
Previously Florida had no statute or rule defining what the
magistrate should do at the conclusion of the preliminary hearing.
(m) Substantially the same as section 902.18, Florida
Statutes, except “without delay” changed to “within 7 days.” Some
specific time limit was felt necessary because of frequent delay by
magistrates while defendants remain in jail.
1972 Amendment. The ABA Standards on Pre-Trial Release
provide for a person arrested to be taken before a committing
magistrate without unreasonable delay for immediate judicial
consideration of the release decision. The committee determined
that, since a determination of probable cause at this immediate
hearing presents difficult logistical problems for the state and
defense counsel, the question of probable cause should be decided
at a later preliminary hearing. For this reason, subdivisions (c), (d),
and (e) of the former rule have been deleted in favor of the hearing
provision now contained in rule 3.130.
(a) A revised version of former rule 3.122(a).
(b) New. Establishes the time period in which the
preliminary hearing must take place.
(c)(1) Substantially the same as former rule 3.122(b). Amended
to provide for advice of counsel relative to waiver and for written
waiver.
(c)(2) Amended to delete provisions relating to recording of
proceedings as same are now contained in subdivision (h).
(d) Same as prior rule 3.122(g).
(e) Same as prior rule 3.122(h).
(f) Substantially the same as prior rule 3.122(i); language
modernized by slight changes.
(g) Same as prior rule 3.122(j).
(h) New rule to provide for record of proceedings.
(i) Same as prior rule 3.122(l).
(j) Substantially the same as prior rule 3.122(m). Time
period for transmission of papers is reduced. (2) provides for
transmission of any transcript of proceedings.
1977 Amendment. The rule corrects several deficiencies in
the prior rule:
(1) In the prior rule no specific mechanism was provided to
effect the release which is allowed. This revision provides such a
mechanism and coordinates the mechanism with the additional
procedures created by subdivision (c).
(2) Once a determination of no probable cause was made
and the defendant was released, no method was provided for
reversing the process in those instances in which the determination
is palpably in error or in instances in which it is later possible to
establish probable cause.
(3) The prior rule allowed the unconditioned release of a
defendant without the possibility of recapture simply because of a
technical failure to abide by the rather arbitrary time limits
established for the conduct of a nonadversary probable cause
determination and regardless of the ability to establish probable
cause. The new rule allows a determination or redetermination of
probable cause to be made in instances in which to do so is
sensible. The defendant is protected by the provision allowing an
adversary preliminary hearing as a check against any possible
abuse.
Court Comment
1975 Amendment. This is a complete rewrite of the
preliminary hearing rule.
RULE 3.134 cases. TIME FOR FILING FORMAL CHARGES
(a) Defendants in Custody.
(1) The state must file formal charges on defendants in
custody by information, or indictment, or in the case of alleged
misdemeanors by whatever documents constitute a formal charge,
within 30 days from the date on which defendants are arrested or
from the date of the service of capiases on them.
(2) If the defendants remain uncharged, the court on
the 30th day and with notice to the state must:
(A) Order that the defendants automatically be
released on their own recognizance on the 33rd day unless the state
files formal charges by that date; or
(B) If good cause is shown by the state, order that
the defendants automatically be released on their own recognizance
on the 40th day unless the state files formal charges by that date.
(3) In no event may any defendants remain in custody
beyond 40 days unless they have been formally charged with a
crime.
(b) Defendants Not in Custody.
(1) The state must file formal charges on defendants on
pretrial release by information or indictment, or int eh case of
alleged misdemeanors by whatever documents constitute a formal
charge, within 60 days from the date on which defendants are
arrested or from the date of the service of capiases on them. If the
defendants remain uncharged, the court on the 60th day and with
notice to the state must:
(A) Order that the defendants automatically be
released on their own recognizance on the 63rd day unless the state
files formal charges by that date; or
(B) If good cause is shown by the state, the Court
may continue the defendant on pretrial release for up to an
additional 30 days unless the state files formal charges.
(2) On the expiration of the time period prescribed in
subsection (1), and on motion with notice to the state, the court
shall order that the defendant be released from all requirements of
bail and all conditions of pretrial release unless the defendant has
been formally charged with a crime.
RULE 3.140 cases. INDICTMENTS; INFORMATIONS
(a) Methods of Prosecution.
(1) Capital Crimes. An offense that may be punished by
death shall be prosecuted by indictment.
(2) Other Crimes. The prosecution of all other criminal
offenses shall be as follows:
In circuit courts and county courts, prosecution shall be solely
by indictment or information, except that prosecution in county
courts for violations of municipal ordinances and metropolitan
county ordinances may be by affidavit or docket entries and
prosecutions for misdemeanors, municipal ordinances, and county
ordinances may be by notice to appear issued and served pursuant
to rule 3.125. A grand jury may indict for any offense. When a
grand jury returns an indictment for an offense not triable in the
circuit court, the circuit judge shall either issue a summons
returnable in the county court or shall bail the accused for trial in
the county court, and the judge, or at the judge’s direction, the
clerk of the circuit court, shall certify the indictment and file it in
the records of the county court.
(b) Nature of Indictment or Information. The indictment
or information on which the defendant is to be tried shall be a
plain, concise, and definite written statement of the essential facts
constituting the offense charged.
(c) Caption, Commencement, Date, and Personal
Statistics.
(1) Caption. No formal caption is essential to the
validity of an indictment or information on which the defendant is
to be tried. Upon objection made as to its absence a caption shall be
prefixed in substantially the following manner:
In the (name of court)
State of Florida versus (name of defendant)
or, in the case of municipal ordinance cases in county court,
City of _____/_____ County versus (name of defendant).
Any defect, error, or omission in a caption may be amended as
of course, at any stage of the proceeding, whether before or after a
plea to the merits, by court order.
(2) Commencement. All indictments or informations on
which the defendant is to be tried shall expressly state that the
prosecution is brought in the name and by the authority of the
State of Florida. Indictments shall state that the defendant is
charged by the grand jury of the county. Informations shall state
that the appropriate prosecuting attorney makes the charge.
(3) Date. Every indictment or information on which the
defendant is to be tried shall bear the date (day, month, year) that it
is filed in each court in which it is so filed.
(4) Personal Statistics. Every indictment or information
shall include the defendant’s race, gender, and date of birth when
any of these facts are known. Failure to include these facts shall
not invalidate an otherwise sufficient indictment or information.
(d) The Charge.
(1) Allegation of Facts; Citation of Law Violated. Each
count of an indictment or information on which the defendant is to
be tried shall allege the essential facts constituting the offense
charged. In addition, each count shall recite the official or
customary citation of the statute, rule, regulation, or other
provision of law that the defendant is alleged to have violated. Error
in or omission of the citation shall not be ground for dismissing the
count or for a reversal of a conviction based thereon if the error or
omission did not mislead the defendant to the defendant’s
prejudice.
(2) Name of Accused. The name of the accused person
shall be stated, if known, and if not known, the person may be
described by any name or description by which the person can be
identified with reasonable certainty. If the grand jury, prosecuting
attorney, or affiant making the charge does not know either the
name of the accused or any name or description by which the
accused can be identified with reasonable certainty, the indictment
or information, as the case may be, shall so allege and the accused
may be charged by a fictitious name.
(3) Time and Place. Each count of an indictment or
information on which the defendant is to be tried shall contain
allegations stating as definitely as possible the time and place of the
commission of the offense charged in the act or transaction or on 2
or more acts or transactions connected together, provided the court
in which the indictment or information is filed has jurisdiction to
try all of the offenses charged.
(4) Allegation of Intent to Defraud. If an intent to
defraud is required as an element of the offense to be charged, it
shall be sufficient to allege an intent to defraud, without naming
therein the particular person or body corporate intended to be
defrauded.
(e) Incorporation by Reference. Allegations made in 1
count shall not be incorporated by reference in another count.
(f) Endorsement and Signature; Indictment. An
indictment shall be signed by the foreperson or the acting
foreperson of the grand jury returning it. The state attorney or
acting state attorney or an assistant state attorney shall make and
sign a statement on the indictment to the effect that he or she has
advised the grand jury returning the indictment as authorized and
required by law. No objection to the indictment on the ground that
the statement has not been made shall be entertained after the
defendant pleads to the merits.
(g) Signature, Oath, and Certification; Information. An
information charging the commission of a felony shall be signed by
the state attorney, or a designated assistant state attorney, under
oath stating his or her good faith in instituting the prosecution and
certifying that he or she has received testimony under oath from the
material witness or witnesses for the offense. An information
charging the commission of a misdemeanor shall be signed by the
state attorney, or a designated assistant state attorney, under oath
stating his or her good faith in instituting the prosecution. No
objection to an information on the ground that it was not signed or
verified, as herein provided, shall be entertained after the defendant
pleads to the merits.
(h) Conclusion. An indictment or information on which the
defendant is to be tried need contain no formal conclusion.
(i) Surplusage. An unnecessary allegation may be
disregarded as surplusage and, on motion of the defendant, may be
stricken from the pleading by the court.
(j) Amendment of Information. An information on which
the defendant is to be tried that charges an offense may be
amended on the motion of the prosecuting attorney or defendant at
any time prior to trial because of formal defects.
(k) Form of Certain Allegations. Allegations concerning the
following items may be alleged as indicated below:
(1) Description of Written Instruments. Instruments
consisting wholly or in part of writing or figures, pictures, or
designs may be described by any term by which they are usually
known or may be identified, without setting forth a copy or facsimile
thereof.
(2) Words; Pictures. Necessary averments relative to
spoken or written words or pictures may be made by the general
purport of such words or pictures without setting forth a copy or
facsimile thereof.
(3) Judgments; Determinations; Proceedings. A
judgment, determination, or proceeding of any court or official, civil
or military, may be alleged generally in such a manner as to identify
the judgment, determination, or proceeding, without alleging facts
conferring jurisdiction on the court or official.
(4) Exceptions; Excuses; Provisos. Statutory exceptions,
excuses, or provisos relative to offenses created or defined by
statute need not be negatived by allegation.
(5) Alternative or Disjunctive Allegations. For an offense
that may be committed by doing 1 or more of several acts, or by 1
or more of several means, or with 1 or more of several intents or
results, it is permissible to allege in the disjunctive or alternative
such acts, means, intents, or results.
(6) Offenses Divided into Degrees. For an offense
divided into degrees it is sufficient to charge the commission of the
offense without specifying the degree.
(7) Felonies. It shall not be necessary to allege that the
offense charged is a felony or was done feloniously.
(l) Custody of Indictment or Information. Unless the
defendant named therein has been previously released on a
citation, order to appear, personal recognizance, or bail, or has been
summoned to appear, or unless otherwise ordered by the court
having jurisdiction, all indictments or informations and the records
thereof shall be in the custody of the clerk of the court to which
they are presented and shall not be inspected by any person other
than the judge, clerk, attorney general, and prosecuting attorney
until the defendant is in custody or until 1 year has elapsed
between the return of an indictment or the filing of an information,
after which time they shall be opened for public inspection.
(m) Defendant’s Right to Copy of Indictment or
Information. Each person who has been indicted or informed
against for an offense shall, on application to the clerk, be
furnished a copy of the indictment or information and the
endorsements thereon, at least 24 hours before being required to
plead to the indictment or information if a copy has not been so
furnished. A failure to furnish a copy shall not affect the validity of
any subsequent proceeding against the defendant if he or she
pleads to the indictment or information.
(n) Statement of Particulars. The court, on motion, shall
order the prosecuting attorney to furnish a statement of particulars
when the indictment or information on which the defendant is to be
tried fails to inform the defendant of the particulars of the offense
sufficiently to enable the defendant to prepare a defense. The
statement of particulars shall specify as definitely as possible the
place, date, and all other material facts of the crime charged that
are specifically requested and are known to the prosecuting
attorney, including the names of persons intended to be defrauded.
Reasonable doubts concerning the construction of this rule shall be
resolved in favor of the defendant.
(o) Defects and Variances. No indictment or information, or
any count thereof, shall be dismissed or judgment arrested, or new
trial granted on account of any defect in the form of the indictment
or information or of misjoinder of offenses or for any cause
whatsoever, unless the court shall be of the opinion that the
indictment or information is so vague, indistinct, and indefinite as
to mislead the accused and embarrass him or her in the
preparation of a defense or expose the accused after conviction or
acquittal to substantial danger of a new prosecution for the same
offense.
Committee Notes
1968 Adoption. Introductory Statement: The contention may be made
that the authority of the Supreme Court of Florida to govern practice and
procedure in all courts by court rule does not include the power to vary in any
way from present statutory law governing the work product of the grand jury,
viz., the indictment. Such a contention must, of necessity, be based in part, at
least, upon the assumption that the grand jury is not an integral part of the
judicial system of Florida but is a distinct entity which serves that system. The
Supreme Court of Florida, in State v. Clemons, 150 So. 2d 231 (Fla. 1963),
seems to have taken a position contrary to such an assumption.
Regardless of whether such a contention is valid, it seems beyond
controversy that the essentials of the indictment, as in the case of an
information, are so intimately associated with practice and procedure in the
courts that the individual or group having the responsibility of determining its
makeup and use is thus empowered to govern a substantial segment of such
practice and procedure. The conclusion seems to be inescapable, therefore,
that, since the constitution grants to the supreme court authority over this
phase of the judicial scheme, the following material is appropriate for
consideration as a part of the proposed rules:
(a)(1) Capital Crimes. This recommendation is consistent with present
Florida law. See §10 DR, Fla. Const. (1885, as amended) (now Art. I, §15, Fla.
Const. (1968 as amended)); § 904.01, Fla. Stat. (1963). The terminology “which
may be punished by death” is deemed preferable to the terminology “capital
crime” of the constitution and “capital offenses” of the statute because of its
definitive nature. The recommended terminology is utilized in Federal Rule of
Criminal Procedure 7(a) and in the American Law Institute’s Code of Criminal
Procedure, section 115. The terminology used in the 1963 Code of Criminal
Procedure of Illinois is “when death is a possible punishment.” See §110 4.
Section 10, DR, Florida Constitution, provides: “No person shall be tried
for a capital crime unless on presentment or indictment by a grand jury.” No
provision is made in the recommendation for prosecution by presentment. This
omission is consistent with the apparent legislative construction placed on this
section. Section 904.01, Florida Statutes, provides “All capital offenses shall be
tried by indictment by a grand jury.” Since presentments traditionally have not
been used as trial accusatorial writs in Florida, there seems little reason, at
this date, to question that the constitution authorizes the implementing
authority, be it the legislature or the supreme court, to use one of the specified
methods of prosecution to the exclusion of the other.
(a)(2) Other Crimes. In criminal courts of record and the Court of
Record of Escambia County, the constitution of Florida requires that
prosecutions be by information. (§§9(5) & 10, Art. V). In county judges’ courts
having elective prosecuting attorneys, present statutory law permits
prosecutions by indictment (§904.02) and affidavit (Ch. 937). The additional
method of prosecution by information is provided as a step toward attaining
uniformity with other courts in the prosecution of noncapital offenses, at least
to the extent that a prosecutor desires to use an information. This addition
involved consideration of whether a nonelected prosecutor serving in a county
judge’s court, which often is the case, has the authority to use an information
as an accusatorial writ. Since this question has not been definitely resolved
under present law, caution dictated the specification that the prosecuting
attorney be elected as a prerequisite to the use of an information.
In all courts not hereinabove mentioned that have elective prosecuting
attorneys, trial by indictment or information is consistent with present Florida
constitutional law and most of the statutory law. (See §10, DR, Fla. Const.,
§§904.01 & 904.02, Fla. Stat.; cf. §932.56, where an affidavit may be used in
cases appealed from a justice of the peace court and which is tried de novo in a
circuit court.) In specially created courts having elective prosecutors and which
are not otherwise provided for in foregoing provisions of this rule, it was felt
that prosecution by indictment or information should be allowed, even though
present statutory authority may limit prosecutions in such courts to the use of
an information, e.g., the Court of Record of Alachua County.
In courts not having elective prosecutors, prosecution by information is
not recommended because of the aforementioned doubt as to the authority of a
nonelected prosecutor to use an information as an accusatorial writ. With
reference to the present court structure of Florida this part of the proposal
applies only to county judges’ courts and justice of the peace courts. The only
variation from present procedure contemplated by this part of the proposal is
the use of an indictment as a basis for prosecution in a justice of the peace
court.
Under this proposal a grand jury may indict for any criminal offense.
This recommendation is based on the premise that a grand jury’s power to
indict should not be limited by virtue of levels in a state court structure. A
grand jury should be considered as a guardian of the public peace against all
criminal activity and should be in a position to act directly with reference
thereto. While practicalities dictate that most non-capital felonies and
misdemeanors will be tried by information or affidavit, if appropriate, even if an
indictment is permissible as an alternative procedure, it is well to retain the
grand jury’s check on prosecutors in this area of otherwise practically
unrestricted discretion.
The procedure proposed for the circuit judge to follow if a grand jury
returns an indictment for an offense not triable in the circuit court applies,
with appropriate variations, much of the procedure presently used when a
grand jury returns an indictment triable in a criminal court of record. See
§32.18, Fla. Stat.
(b) Nature of Indictment or Information. This provision appears in
rule 7(c) of the Rules of Criminal Procedure for the United States District Court
(hereafter referred to as the federal rules for purposes of brevity). It may be
deemed appropriate for incorporation into the recommendations since it
preserves to the defendant expressly the right to a formal written accusation
and at the same time permits the simplification of the form of the accusation
and the elimination of unnecessary phraseology.
(c) Caption, Commencement, and Date.
(1) Caption. Section 906.02, Florida Statutes, contains the essentials
of this proposal. It is well settled at common law that the caption is no part of
the indictment and that it may be amended. The caption may be considered as
serving the purpose of convenience by making more readily identifiable a
particular accusatorial writ. The proposal makes it possible for this
convenience to be served if either party wishes it, yet does not provide that the
caption be a matter of substance. The essentials of this recommendation also
appear in section 149 of the American Law Institute’s Code of Criminal
Procedure.
(2) Commencement. This proposal apparently is directly contrary to
section 906.02(1), Florida Statutes, which treats the caption and the
commencement in the same manner, i.e., that neither is necessary to the
validity of the indictment or information but may be present as mere matters of
convenience. This legislative assumption may not be a correct one and caution
dictates that a meaningful commencement be included. Section 20, article V, of
the Constitution of Florida provides that the style of all process shall be: “‘The
State of Florida’ and all prosecutions shall be conducted in the name and by
the authority of the State.” As contemplated in the proposal, the
commencement expressly states the sovereign authority by which the
accusatorial writ is issued and the agent of that authority. Section 906.02(2),
Florida Statutes, seems to contemplate that there will be included in the
indictment an express provision concerning the agency of the state responsible
for its presentation, viz., the grand jury, by stating, “It is unnecessary to allege
that the grand jurors were empaneled, sworn or charged, or that they present
the indictment upon their oaths or affirmations.” The American Law Institute’s
commentary on the commencement (A.L.I. Code of Criminal Procedure, p. 529
et seq.) indicates that there is much confusion between what information
should be in the commencement as distinguished from the caption.
(3) Date. Since in many cases the beginning of the prosecution is co-
existent with the issuance of the indictment or information, the date the writ
bears may be of great significance, particularly with reference to the tolling of a
statute of limitations. If the date of a grand jury’s vote of a true bill or a
prosecutor’s making oath to an information differs from the date of filing of the
indictment or information with the appropriate clerk, it seems the date of filing
is the preferable date for a writ to bear since until the filing transpires there is
no absolute certainty that the prosecution actually will leave the province of the
grand jury or prosecutor.
(d) The Charge.
(1) Allegation of Facts; Citation of Law Violated. This proposal is
consistent with various sections of chapter 906, Florida Statutes, in that the
charge is adequately alleged when based on the essentials of the offense;
surplusage should be guarded against. The citation of the law allegedly violated
contributes to defining the charge and conserves time in ascertaining the exact
nature of the charge. The 1963 Illinois Criminal Code, section 111-3(a)(2), and
Federal Rule of Criminal Procedure 7(c) contain similar provisions.
(2) Name of Accused. The provision concerning the method of stating
the name of the accused is consistent with the very elaborate section 906.08,
Florida Statutes, which seems unnecessarily long. It is deemed desirable that
when a fictitious name is used the necessity therefor should be indicated by
allegation.
(3) Time and Place. This provision is consistent with present Florida
law. (See Morgan v. State, 51 Fla. 76, 40 So. 828 (1906), as to “time”; see
Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931), as to “place”.) The provision
is patterned after section 111-3(4) of the 1963 Illinois Code of Criminal
Procedure.
(4) Joinder of Offenses. The essence of this proposal is presently
found in section 906.25, Florida Statutes, federal rule 8(a), and section 111-
4(a) of the 1963 Illinois Code of Criminal Procedure.
(5) Joinder of Defendants. This proposal is taken from federal rule
8(b). Its substance also appears in section 111-4(b) of the Illinois Code of
Criminal Procedure. Although section 906.25, Florida Statutes, does not
expressly contain this provision, there is little doubt that its broad language
includes it.
(6) Allegation of Intent to Defraud. The language of this proposal
presently appears in section 906.18, Florida Statutes, except for the provision
concerning affidavit. Its continuation seems advisable as an aid to drawing
allegations in charging instruments, although such information if known to the
prosecutor may be required to be given in a bill of particulars upon motion of
the defendant. (See subdivision (n) of this rule.) At times such information may
be unknown to the prosecutor. A part of the statute is purposely not included
in the proposal. The excluded part states “and on the trial it shall be sufficient,
and shall not be deemed a variance, if there appear to be an intent to defraud
the United States or any state, county, city, town or parish, or any body
corporate, or any public officer in his official capacity, or any copartnership or
members thereof, or any particular person.” It seems that this part of the
statute is stated in terms of the law of evidence rather than practice and
procedure and should not be included in the rules, although apparently being
a logical conclusion from the part included in the proposal.
(e) Incorporation by Reference. Although provision for incorporation
by reference appears in federal rule 7(c), the prohibition of such incorporation
is recommended with the thought that even though repetition may be
minimized by incorporation, confusion, vagueness, and misunderstanding may
be fostered by such procedure.
(f) Endorsement and Signature; Indictment. The requirement that
the indictment be endorsed “A true bill” and be signed by the foreman or acting
foreman of the grand jury presently appears in section 905.23, Florida
Statutes. There apparently is no valid reason for changing this requirement
since it serves the useful purpose of lending authenticity to the indictment as a
legal product of the grand jury. The requirement of the foreman’s signature
also appears in federal rule 6(c), 1963, Illinois CCP section 111-3(b), and A.L.I.
Model Code of Criminal Procedure section 125.
The provision pertaining to the statement and signature of the
prosecuting attorney varies from present Florida law and is offered in
alternative form. Florida statutes presently provide that an indictment shall be
signed by a state attorney (§§27.21 & 27.22). Federal rule 7(c) also provides for
the signature of the attorney for the government.
No requirement presently is made in Florida necessitating an express
explanatory statement preceding such signature. Presumably the justification
for the signature appears in the Florida statutes that require the
aforementioned officers to wait upon the grand jury as advisors, as examiners
of witnesses, and to draw indictments. (See §§905.16, 905.17, 905.19, 905.22,
27.02, 27.16, 27.21, & 27.22, Fla. Stat.)
Vagueness remains concerning the significance of the signature,
however. Since the prosecuting attorney cannot be present while the grand jury
is deliberating or voting (see section 905.17, Florida Statutes) and has no voice
in the decision of whether an indictment is found (see section 905.26, Florida
Statutes), a logical question arises concerning the necessity for the prosecuting
attorney’s signature on the indictment. The provision for the statement is made
for the purpose of clarifying the reason for the signature.
(g) Signature, Oath, and Certification; Information. Section 10, DR,
Florida Constitution, requires that informations be under oath of the
prosecuting attorney of the court in which the information is filed. Article V,
section 9(5), Florida Constitution, contains the same requirement concerning
informations filed by the prosecuting attorney in a criminal court of record.
This proposal also does not deviate from present Florida statutory law as found
in section 906.04, Florida Statutes. This statute has received judicial approval.
(See Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960).) It should be noted
here that the prosecutor’s statement under oath is defined as to the purpose
served by the signature.
(h) Conclusion. A similar provision currently appears in section
906.03, Florida Statutes, and should be included in the rules because of its
tendency to minimize unnecessary statements in accusatorial writs. Provision
is added for the affidavit as an accusatorial writ.
(i) Surplusage. The first part of the proposal, providing for the
disregarding of unnecessary allegations as surplusage, is similar to section
906.24, Florida Statutes. The part concerned with striking such material is
patterned after federal rule 7(d). The parts are properly complementary.
(j) Amendment of Information. This proposal contains no provision
for an amendment of an indictment since, presumably, a grand jury may not
amend an indictment which it has returned and which is pending, although it
may return another indictment and the first indictment may be disposed of by
a nolle prosequi. (See 17 Fla. Jur. Indictments and Informations, 9 (1958).) A
federal indictment cannot be amended without reassembling the grand jury
(see Ex parte Bain, 121 U.S. 1 (1887)); consequently the federal rules contain
no provision for the amendment of an indictment. (It may be that the Supreme
Court of Florida will feel inclined to include in the rules an express statement
concerning amendments of an indictment. None is included here, however.)
The proposal is patterned after section 111-5 of the 1963 Illinois Code of
Criminal Procedure, with one exception. The exception arises due to the fact
that the Illinois Code provision applies to indictments as well as informations,
the position in Illinois apparently being assumed that an indictment may be
amended, at least with reference to specified items listed in the statute, as well
as other formalities.
(k) Form of Certain Allegations. Several statutes in chapter 906,
Florida Statutes, are concerned with the manner of making allegations in
indictments and informations. Some of these sections are of such general
application that it seems advisable to include their substance in the rules;
others are so restricted that it may be deemed appropriate to recommend other
disposition of them.
The proposals made in (1) through (7) here are based on the substance of
the designated Florida statutes:
Proposal (1): section 906.09.
Proposal (2): section 906.10.
Proposal (3): section 906.11.
Proposal (4): section 906.12.
Proposal (5): section 906.13.
Proposal (6): section 906.23.
Proposal (7): section 906.17.
(l) Custody and Inspection. The proposal is taken verbatim from
section 906.27, Florida Statutes. The necessity for specific provision for the
custody and inspection of accusatorial writs seems to be proper to include
here.
(m) Defendant’s Right to Copy of Indictment or Information. The
procedure contained in this proposal is presently required under section
906.28, Florida Statutes, and seems to be unobjectionable.
(n) Statement of Particulars. The phrase, “bill of particulars,” has
been modernized by changing “bill” to “statement.” Historically, a “bill” is a
written statement. The first sentence of this proposal is taken from section
906.27, Florida Statutes, the only change being the narrowing of the scope of
the judicial discretion now granted by the statute. The latter part of the
proposal is recommended in order to clarify the requirements of the rule.
Provision for the accusatorial affidavit has been added.
(o) Defects and Variances. This proposal presently appears in Florida
law in the form of section 906.25, Florida Statutes. The statute has been the
object of much judicial construction and it seems inadvisable to divide it into
parts merely for convenience in placing these parts under more appropriate
titles, such as “Pre-Trial Motions,” “Motion for New Trial,” etc.
The intimate relation the statute has with indictments and informations
justifies its inclusion here. The useful purposes served by the court
constructions dictate the use of the statutory language without change.
1972 Amendment. Substantially the same as prior rule. References to
trial by affidavit have been deleted throughout this rule and all Florida Rules of
Criminal Procedure because of the passage of the 1972 amendment to article V
of the Florida Constitution.
(a)(2) Amended to refer only to circuit courts and county courts.
Reference to trial of vehicular traffic offenses transferred to rule 3.010 and
made applicable to all rules of criminal procedure.
Former rule (d)(4) and (d)(5) transferred to new rule 3.150. Former rule
(d)(6) renumbered as (d)(4).
1973 Amendment. The purpose of the amendment is to provide the
same method for prosecution of violations of metropolitan county ordinances
as for violations of municipal ordinances.
RULE 3.150 cases. JOINDER OF OFFENSES AND DEFENDANTS
(a) Joinder of Offenses. Two or more offenses that are
triable in the same court may be charged in the same indictment or
information in a separate count for each offense, when the offenses,
whether felonies or misdemeanors, or both, are based on the same
act or transaction or on 2 or more connected acts or transactions.
(b) Joinder of Defendants. Two or more defendants may be
charged in the same indictment or information on which they are to
be tried when:
(1) each defendant is charged with accountability for
each offense charged;
(2) each defendant is charged with conspiracy and
some of the defendants are also charged with 1 or more offenses
alleged to have been committed in furtherance of the conspiracy; or
(3) even if conspiracy is not charged and all defendants
are not charged in each count, it is alleged that the several offenses
charged were part of a common scheme or plan.
Such defendants may be charged in 1 or more counts together or
separately, and all of the defendants need not be charged in each
count.
(c) Joint Representation. When 2 or more defendants have
been jointly charged under rule 3.150(b) or have been joined for
trial and are represented by the same attorney or by attorneys who
are associated in the practice of law, the court shall, as soon as
practicable, inquire into such joint representation and shall
personally advise each defendant of the right to effective assistance
of counsel, including separate representation. The court shall take
such measures as are necessary to protect each defendant’s right to
counsel.
Committee Notes
1968 Adoption. (Notes are to rule 1.140(d)(4) and (5).)
(4) Joinder of Offenses. The essence of this proposal is
presently found in section 906.25, Florida Statutes, federal rule
8(a), and section 111-4(a) of the 1963 Illinois Code of Criminal
Procedure.
(5) Joinder of Defendants. This proposal is taken from
federal rule 8(b). Its substance also appears in section 111-4(b) of
the Illinois Code of Criminal Procedure. While section 906.25,
Florida Statutes, does not expressly contain this provision, there is
little doubt that its broad language includes it.
1972 Amendment. Provisions of former rule 3.150 are
transferred to and incorporated in rule 3.130, Pretrial Release.
(a) Substantially the same as former rule 3.140(d)(4) except
that it omits proviso that the court have jurisdiction to try all
offenses charged. The proviso seems redundant.
(b) Substantially the same as ABA Standard 1.2 of ABA
Standards Relating to Joinder and Severance but omits sub-
paragraph (c)(2) which would permit joinder of charges “so closely
connected in respect to time, place, and occasion that it would be
difficult to separate proof of one charge from proof of the others.”
The ABA commentary on this standard concedes that in such cases
the chances are considerable that defendants would have a right to
severance. Difficulty of separating proof is a good reason for denying
a right to join charges. The committee is of the opinion that
defendants not connected in the commission of an act and not
connected by conspiracy or by common scheme or plan should not,
under any circumstances, be joined. The suggested rule omits the
provision of former rule 3.140(d)(4) permitting joinder of 2 or more
defendants in a single indictment or information, if they are alleged
to have participated in the same series of acts or transactions
constituting more than 1 offense. If all defendants participated in a
series of connected acts or transactions constituting 2 or more
offenses, the offenses can be joined under rule 3.150(a).
The last sentence of the suggested rule is the last sentence of
former rule 3.140(d)(5).
2004 Amendment. This rule is intended to provide a uniform
procedure for judges to follow when codefendants are represented
by the same attorney, by the same law firm, or by attorneys who are
associated in the practice of law. This provision is substantially
derived from Rule 44, Fed. R. Crim. P. See also Larzelere v. State,
676 So. 2d 394 (Fla. 1996).
Court Commentary
2004 Amendment. Like Federal Rule of Criminal Procedure
44(c), new subdivision (c) does not specify the particular measures
that the court must take to protect a defendant’s right to counsel.
Because the measures that will best protect a defendant’s right to
counsel can vary from case to case, this determination is left within
the court’s discretion. One possible course of action is to advise the
defendant of the possible conflict of interest that could arise from
dual representation and to obtain a voluntary, knowing, and
intelligent waiver of the right to obtain separate representation. See
Larzelere v. State, 676 So. 2d 394 (Fla. 1996). Another option is to
require separate representation. See Fed. R. Crim. P. 44(c) advisory
committee notes 1979 amendment.
RULE 3.151 cases. CONSOLIDATION OF RELATED OFFENSES
(a) Related Offenses. For purposes of these rules, 2 or more
offenses are related offenses if they are triable in the same court
and are based on the same act or transaction or on 2 or more
connected acts or transactions.
(b) Consolidation of Indictments or Informations. Two or
more indictments or informations charging related offenses shall be
consolidated for trial on a timely motion by a defendant or by the
state. The procedure thereafter shall be the same as if the
prosecution were under a single indictment or information. Failure
to timely move for consolidation constitutes a waiver of the right to
consolidation.
(c) Dismissal of Related Offenses after Trial. When a
defendant has been tried on a charge of 1 of 2 or more related
offenses, the charge of every other related offense shall be dismissed
on the defendant’s motion unless a motion by the defendant for
consolidation of the charges has been previously denied, or unless
the defendant has waived the right to consolidation, or unless the
prosecution has been unable, by due diligence, to obtain sufficient
evidence to warrant charging the other offense or offenses.
(d) Plea. A defendant may plead guilty or nolo contendere to
a charge of 1 offense on the condition that other charges of related
offenses be dismissed or that no charges of other related offenses be
instituted. Should the court find that the condition cannot be
fulfilled, the plea shall be considered withdrawn.
Committee Notes
1968 Adoption. This rule is almost the same as federal rule
13, with provisions added for trial by affidavit.
1972 Amendment. (a) To same general effect as ABA
Standard with changes to conform to rules 3.150(a) and 3.190(k).
(b) Limits motion for consolidation to defendant and
provides that defendant waives his or her right to consolidation by
failing to file a timely motion. Under standards relating to joinder of
offenses and defendants, the prosecution may avoid the necessity
for consolidation by charging offenses and defendants in a single
indictment or information where consolidation is permissible. Omits
provision of ABA Standard authorizing denial of consolidation if
prosecuting attorney does not have “sufficient evidence to warrant
trying” 1 of the “offenses” or if the court finds that the ends of
justice would be defeated by consolidation. The lack of “sufficient
evidence to warrant” trial of 1 of several charges of “related
offenses” would be quite rare. In the rare case in which there is
such a lack of evidence, the appropriate remedy would be a motion
for continuance of all pending charges of related offenses, showing
that the lack of evidence could probably be cured by a reasonable
delay. The committee does not favor separate trials of charges of
related offenses over the defendant’s objection.
(c) Florida has no similar rule. Omits exception in ABA
Standard in case “the prosecuting attorney did not have sufficient
evidence to warrant trying (the) offense” or upon a finding that “the
ends of justice would be defeated if the motion was granted.” See
comment on (b). The rule is not intended to restrict defendant’s
substantive rights.
(d) Florida has no similar rule. The first sentence of ABA
Standard is considered by the committee to state a rule of
substantive law and is omitted as unnecessary.
1977 Amendment. The changes from the prior rule are
intended to provide equal treatment for both the state and the
defendant.
RULE 3.152 cases. SEVERANCE OF OFFENSES AND DEFENDANTS
(a) Severance of Offenses.
(1) In case 2 or more offenses are improperly charged in
a single indictment or information, the defendant shall have a right
to a severance of the charges on timely motion.
(2) In case 2 or more charges of related offenses are
joined in a single indictment or information, the court nevertheless
shall grant a severance of charges on motion of the state or of a
defendant:
(A) before trial on a showing that the severance is
appropriate to promote a fair determination of the defendant’s guilt
or innocence of each offense; or
(B) during trial, only with defendant’s consent, on
a showing that the severance is necessary to achieve a fair
determination of the defendant’s guilt or innocence of each offense.
(b) Severance of Defendants.
(1) On motion of the state or a defendant, the court
shall order a severance of defendants and separate trials:
(A) before trial, on a showing that the order is
necessary to protect a defendant’s right to a speedy trial, or is
appropriate to promote a fair determination of the guilt or
innocence of 1 or more defendants; or
(B) during trial, only with defendant’s consent and
on a showing that the order is necessary to achieve a fair
determination of the guilt or innocence of 1 or more defendants.
(2) If a defendant moves for a severance of defendants
on the ground that an oral or written statement of a codefendant
makes reference to him or her but is not admissible against him or
her, the court shall determine whether the state will offer evidence
of the statement at the trial. If the state intends to offer the
statement in evidence, the court shall order the state to submit its
evidence of the statement for consideration by the court and
counsel for defendants and if the court determines that the
statement is not admissible against the moving defendant, it shall
require the state to elect 1 of the following courses:
(A) a joint trial at which evidence of the statement
will not be admitted;
(B) a joint trial at which evidence of the statement
will be admitted after all references to the moving defendant have
been deleted, provided the court determines that admission of the
evidence with deletions will not prejudice the moving defendant; or
(C) severance of the moving defendant.
(3) In cases in which, at the close of the state’s case or
at the close of all of the evidence, the evidence is not sufficient to
support a finding that allegations on which the joinder of a
defendant is based have been proved, the court shall, on motion of
that defendant, grant a severance unless the court finds that
severance is unnecessary to achieve a fair determination of that
defendant’s guilt or innocence.
Committee Notes
1968 Adoption. This subdivision rewords and adds to federal
rule 14. It covers subject matter of section 918.02, Florida Statutes.
1972 Amendment. (a)(1) Severance on timely motion by
defendant is mandatory if multiple offenses are improperly joined.
(a)(2) Provides for severance of offenses before trial on showing
that severance will promote a fair determination of guilt or
innocence substantially as provided by former rule 3.190(j)(2) and,
unlike any Florida rule, distinguishes motion during trial.
(b)(1) Based on ABA Standard 2.3(b). Expands rule 3.190(j) to
include defendant’s right to speedy trial as ground for severance
and, unlike any Florida rule, distinguishes between motion before
and motion during trial.
(b)(2) Based on ABA Standard 2.3, subparagraphs (a) and (c).
Requires court to determine whether the statement will be offered
as distinguished from asking the state its intention. Requires
production of evidence of the statement in the event it will be
offered so that the court and counsel can intelligently deal with the
problem. Florida has no similar rule.
(b)(3) Substantially the same as ABA Standard, except that the
proposed rule requires severance unless the court affirmatively
finds that severance is unnecessary. Florida has no similar rule.
RULE 3.153 cases. TIMELINESS OF DEFENDANT’S MOTION;
WAIVER
(a) Timeliness; Waiver. A defendant’s motion for severance
of multiple offenses or defendants charged in a single indictment or
information shall be made before trial unless opportunity therefor
did not exist or the defendant was not aware of the grounds for
such a motion, but the court in its discretion may entertain such a
motion at the trial. The right to file such a motion is waived if it is
not timely made.
(b) Renewal of Motion. If a defendant’s pretrial motion for
severance is overruled, the defendant may renew the motion on the
same grounds at or before the close of all the evidence at the trial.
Committee Notes
1972 Adoption. (a) Relates solely to defendant’s motion for
severance. Florida has no similar rule.
(b) Florida has no similar rule.
IV. ARRAIGNMENT AND PLEAS
RULE 3.160 cases. ARRAIGNMENT
(a) Nature of Arraignment. The arraignment must be
conducted in open court or by audio-video communication
technology in the discretion of the court and must consist of the
judge or clerk or prosecuting attorney reading the indictment or
information on which the defendant will be tried to the defendant or
stating orally to the defendant the substance of the charge or
charges and calling on the defendant to plead thereto. The reading
or statement as to the charge or charges may be waived by the
defendant. If the defendant is represented by counsel, counsel may
file a written plea of not guilty at or before arraignment and
thereupon arraignment must be deemed waived.
(b) Effect of Failure to Arraign or Irregularity of
Arraignment. Neither a failure to arraign nor an irregularity in the
arraignment shall affect the validity of any proceeding in the cause
if the defendant pleads to the indictment or information on which
the defendant is to be tried or proceeds to trial without objection to
such failure or irregularity.
(c) Plea of Guilty after Indictment or Information Filed.
If a person who has been indicted or informed against for an
offense, but who has not been arraigned, desires to plead guilty
thereto, the person may so inform the court having jurisdiction of
the offense, and the court shall, as soon as convenient, arraign the
defendant and permit the defendant to plead guilty to the
indictment or information.
(d) Time to Prepare for Trial. After a plea of not guilty the
defendant is entitled to a reasonable time in which to prepare for
trial.
(e) Defendant Not Represented by Counsel. Prior to
arraignment of any person charged with the commission of a crime,
if he or she is not represented by counsel, the court shall advise the
person of the right to counsel and, if he or she is financially unable
to obtain counsel, of the right to be assigned court-appointed
counsel to represent him or her at the arraignment and at all
subsequent proceedings. The person shall execute an affidavit that
he or she is unable financially or otherwise to obtain counsel, and if
the court shall determine the reason to be true, the court shall
appoint counsel to represent the person.
If the defendant, however, understandingly waives
representation by counsel, he or she shall execute a written waiver
of such representation, which shall be filed in the case. If counsel is
appointed, a reasonable time shall be accorded to counsel before
the defendant shall be required to plead to the indictment or
information on which he or she is to be arraigned or tried, or
otherwise to proceed further.
Committee Notes
1968 Adoption. (a) A combination of section 908.01, Florida
Statutes, and Federal Rule of Criminal Procedure 10.
(b) Same as section 908.02, Florida Statutes.
(c) Same as section 909.15, Florida Statutes, except
provision is made for trial by affidavit.
(d) Same as section 909.20, Florida Statutes.
(e) Federal rule 44 provides:
“If the defendant appears in court without counsel the court
shall advise him of his right to counsel and assign counsel to
represent him at every stage of the proceeding unless he elects to
proceed without counsel or is able to obtain counsel.”
A presently proposed amendment to such rule provides:
“(a) Right to Assigned Counsel. Every defendant who is
unable to obtain counsel shall be entitled to have counsel assigned
to represent him at every stage of the proceedings from his initial
appearance before the commissioner or the court through appeal,
unless he waives such appointment.
“(b) Assignment Procedure. The procedures for implementing
the right set out in subdivision (a) shall be those provided by law or
by local rules of district courts of appeal.”
In lieu of such latter, blanket provision, it is suggested that
the rule provide, as stated, for inquiry of the defendant and
determination by the court as to the defendant’s desire for and
inability to obtain counsel, after being advised of entitlement
thereto. Many defendants, of course, will waive counsel.
In view of Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965),
and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193
(1963), holding that entitlement to counsel does not depend upon
whether the offense charged is a felony or misdemeanor, it is
suggested that the word “crime” be used instead of “felony” only in
the first sentence of the proposed rule.
In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d
114 (1961), involving breaking and entering with intent to commit
rape, the Supreme Court held the defendant was entitled to counsel
at the arraignment, if the arraignment be deemed a part of the trial,
as apparently it is under Alabama law. In Ex parte Jeffcoat, 109 Fla.
207, 146 So. 827 (1933), the Supreme Court of Florida held the
arraignment to be a mere formal preliminary step to an answer or
plea. However, in Sardinia v. State, 168 So. 2d 674 (Fla. 1964), the
court recognized the accused’s right to counsel upon arraignment.
Section 909.21, Florida Statutes, provides for appointment of
counsel in capital cases.
1972 Amendment. Substantially the same as prior rule. The
committee considered changes recommended by The Florida Bar
and incorporated the proposed change relating to written plea of not
guilty and waiver of arraignment.
1992 Amendment. The amendment allows the judge to
participate in the arraignment process by including the judge as
one of the designated individuals who may advise the defendant of
the pending charges. Apparently, the 1988 amendment to rule
3.160(a) inadvertently eliminated the judge from the arraignment
procedure. In re Rule 3.160(a), Florida Rules of Criminal Procedure,
528 So. 2d 1179, 1180 (Fla. 1988). The prior amendment did
include the judge. The Florida Bar Re: Amendment to Rules —
Criminal Procedure, 462 So. 2d 386 (Fla. 1984). While the language
of rule 3.160(a) as presently set out in the Florida Bar pamphlet,
Florida Rules of Criminal Procedure, is identical to the language of
this proposed amendment (that is, it includes the judge in the
arraignment process), the West publications, Florida Criminal Laws
and Rules (1991) and Florida Rules of Court (1991), nevertheless
follow the language set out in 528 So. 2d at 1180.
RULE 3.170 cases. PLEAS
(a) Types of Plea; Court’s Discretion. A defendant may
plead not guilty, guilty, or, with the consent of the court, nolo
contendere. Except as otherwise provided by these rules, all pleas to
a charge shall be in open court and shall be entered by the
defendant. If the sworn complaint charges the commission of a
misdemeanor, the defendant may plead guilty to the charge at the
first appearance under rule 3.130, and the judge may thereupon
enter judgment and sentence without the necessity of any further
formal charges being filed. A plea of not guilty may be entered in
writing by counsel. Every plea shall be entered of record, but a
failure to enter it shall not affect the validity of any proceeding in
the cause.
(b) Pleading to Other Charges. Having entered a plea in
accordance with this rule, the defendant may, with the court’s
permission, enter a plea of guilty or nolo contendere to any and all
charges pending against him or her in the State of Florida over
which the court would have jurisdiction and, when authorized by
law, to charges pending in a court of lesser jurisdiction, if the
prosecutor in the other case or cases gives written consent thereto.
The court accepting such a plea shall make a disposition of all such
charges by judgment, sentence, or otherwise. The record of the plea
and its disposition shall be filed in the court of original jurisdiction
of the offense. If a defendant secures permission to plead to other
pending charges and does so plead, the entry of such a plea shall
constitute a waiver by the defendant of venue and all
nonjurisdictional defects relating to such charges.
(c) Standing Mute or Pleading Evasively. If a defendant
stands mute, or pleads evasively, a plea of not guilty shall be
entered.
(d) Failure of Corporation to Appear. If the defendant is a
corporation and fails to appear, a plea of not guilty shall be entered
of record.
(e) Plea of Not Guilty; Operation in Denial. A plea of not
guilty is a denial of every material allegation in the indictment or
information on which the defendant is to be tried.
(f) Withdrawal of Plea of Guilty or No Contest. The court
may in its discretion, and shall on good cause, at any time before a
sentence, permit a plea of guilty or no contest to be withdrawn and,
if judgment of conviction has been entered thereon, set aside the
judgment and allow a plea of not guilty, or, with the consent of the
prosecuting attorney, allow a plea of guilty or no contest of a lesser
included offense, or of a lesser degree of the offense charged, to be
substituted for the plea of guilty or no contest. The fact that a
defendant may have entered a plea of guilty or no contest and later
withdrawn the plea may not be used against the defendant in a trial
of that cause.
(g) Vacation of Plea and Sentence Due to Defendant’s
Noncompliance.
(1) Whenever a plea agreement requires the defendant
to comply with some specific terms, those terms shall be expressly
made a part of the plea entered into in open court.
(2) Unless otherwise stated at the time the plea is
entered:
(A) The state may move to vacate a plea and
sentence within 60 days of the defendant’s noncompliance with the
specific terms of a plea agreement.
(B) When a motion is filed pursuant to subdivision
(g)(2)(A) of this rule, the court shall hold an evidentiary hearing on
the issue unless the defendant admits noncompliance with the
specific terms of the plea agreement.
(C) No plea or sentence shall be vacated unless
the court finds that there has been substantial noncompliance with
the express plea agreement.
(D) When a plea and sentence is vacated pursuant
to this rule, the cause shall be set for trial within 90 days of the
order vacating the plea and sentence.
(h) Plea of Guilty to Lesser Included Offense or Lesser
Degree. The defendant, with the consent of the court and of the
prosecuting attorney, may plead guilty to any lesser offense than
that charged that is included in the offense charged in the
indictment or information or to any lesser degree of the offense
charged.
(i) Plea of Guilty to an Offense Divided into Degrees;
Determination of the Degree. When an indictment or information
charges an offense that is divided into degrees without specifying
the degree, if the defendant pleads guilty, generally the court shall,
before accepting the plea, examine witnesses to determine the
degree of the offense of which the defendant is guilty.
(j) Time and Circumstances of Plea. No defendant,
whether represented by counsel or otherwise, shall be called on to
plead unless and until he or she has had a reasonable time within
which to deliberate thereon.
(k) Responsibility of Court on Pleas. No plea of guilty or
nolo contendere shall be accepted by a court without the court first
determining, in open court, with means of recording the
proceedings stenographically or mechanically, that the
circumstances surrounding the plea reflect a full understanding of
the significance of the plea and its voluntariness and that there is a
factual basis for the plea of guilty. A complete record of the
proceedings at which a defendant pleads shall be kept by the court.
(l) Motion to Withdraw the Plea after Sentencing. A
defendant who pleads guilty or nolo contendere without expressly
reserving the right to appeal a legally dispositive issue may file a
motion to withdraw the plea within thirty days after rendition of the
sentence, but only upon the grounds specified in Florida Rule of
Appellate Procedure 9.140(b)(2)(A)(ii)(a)–(e) except as provided by
law.
(m) Motion to Withdraw the Plea after Drug Court
Transfer. A defendant who pleads guilty or nolo contendere to a
charge for the purpose of transferring the case, pursuant to section
910.035, Florida Statutes, may file a motion to withdraw the plea
upon successful completion of the drug court treatment program.
Committee Notes
1968 Adoption. (a) Patterned after the major portion of
Federal Rule of Criminal Procedure 11.
(b) Same as section 909.07, Florida Statutes, except the
word “made” is substituted for “pleaded.”
(c) Taken from a part of section 908.03, Florida Statutes.
(d) Taken from a part of section 908.03, Florida Statutes.
(e) Same as section 909.16, Florida Statutes, except that
provision is added for trial by affidavit.
(f) Essentially the same as section 909.13, Florida Statutes.
(g) Essentially the same as section 909.09, Florida Statutes,
except for the addition of the charge by affidavit.
(h) Same as section 909.11, Florida Statutes, except
provision is made for a charge by affidavit.
1972 Amendment. This general topic is found in ABA
Standard relating to pleas of guilty. The Standards are divided into
3 parts: receiving and acting upon a plea; withdrawal of the plea;
and plea discussions and plea agreements. The first and second
parts are considered under this rule.
(a) Same as first part of existing rule; substance of second
sentence of existing rule transferred to new subdivision (j); new
provision permits, with court approval, plea of not guilty to be made
in writing.
(b) From ABA Standard 1.2; the purpose of this rule is to
permit a defendant to plead guilty or nolo contendere to all cases
pending against the defendant, thus avoiding multiple judicial and
prosecutorial labors. New concept of permitting this procedure even
though the other cases are pending in other counties is taken from
Federal Rule of Criminal Procedure 20 which has successfully met
the purpose explained above.
(c) Same as prior rule.
(d) Same as prior rule.
(e) Same as prior rule.
(f) Last sentence added from ABA Standard 2.2.
(g) Same as prior rule.
(h) Same as prior rule.
(i) This should be done in accordance with Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and
Garcia v. State, 228 So. 2d 300 (Fla. 1969). This should also
include advising a defendant so pleading of the possibility of an
action or charge against him or her as a multiple felon if the
circumstances so warrant.
(j) From first sentence of present rule 3.170(a) with addition
of requirement of determination of factual basis for a plea of guilty
as provided by last sentence of federal rule 11. While requiring the
presence of a court reporter, the proposed rule does not require that
the reporter transcribe and file a transcript of the proceedings on a
plea of guilty or nolo contendere, although the committee considers
that such a requirement by the trial judge is desirable.
1973 Amendment. The purpose of this amendment is to
provide a method whereby a defendant may plead guilty to a
misdemeanor at first appearance without the necessity of the state
attorney subsequently filing an information.
RULE 3.171 cases. PLEA DISCUSSIONS AND AGREEMENTS
(a) In General. Ultimate responsibility for sentence
determination rests with the trial judge. However, the prosecuting
attorney and the defense attorney, or the defendant when
representing himself or herself, are encouraged to discuss and to
agree on pleas that may be entered by a defendant. The discussion
and agreement must be conducted with the defendant’s counsel. If
the defendant represents himself or herself, all discussions between
the defendant and the prosecuting attorney shall be of record.
(b) Responsibilities of the Prosecuting Attorney.
(1) A prosecuting attorney may:
(A) engage in discussions with defense counsel or
a defendant who is without counsel with a view toward reaching an
agreement that, upon the defendant’s entering a plea of guilty or
nolo contendere to a charged offense or to a lesser or related
offense, the prosecuting attorney will do any of the following:
(i) abandon other charges; or
(ii) make a recommendation, or agree not to
oppose the defendant’s request for a particular sentence, with the
understanding that such recommendation or request shall not be
binding on the trial judge; or
(iii) agree to a specific sentence; and
(B) consult with the victim, investigating officer, or
other interested persons and advise the trial judge of their views
during the course of plea discussions.
(2) The prosecuting attorney shall:
(A) apprise the trial judge of all material facts
known to the attorney regarding the offense and the defendant’s
background prior to acceptance of a plea by the trial judge; and
(B) maintain the record of direct discussions with
a defendant who represents himself or herself and make the record
available to the trial judge upon the entry of a plea arising from
these discussions.
(c) Responsibilities of Defense Counsel.
(1) Defense counsel shall not conclude any plea
agreement on behalf of a defendant-client without the client’s full
and complete consent thereto, being certain that any decision to
plead guilty or nolo contendere is made by the defendant.
(2) Defense counsel shall advise defendant of:
(A) all plea offers; and
(B) all pertinent matters bearing on the choice of
which plea to enter and the particulars attendant upon each plea
and the likely results thereof, as well as any possible alternatives
that may be open to the defendant.
(d) Responsibilities of the Trial Judge. After an agreement
on a plea has been reached, the trial judge may have made known
to him or her the agreement and reasons therefor prior to the
acceptance of the plea. Thereafter, the judge shall advise the parties
whether other factors (unknown at the time) may make his or her
concurrence impossible.
Committee Notes
1972 Amendment. New in Florida. Most criminal cases are
disposed of by pleas of guilty arrived at by negotiations between
prosecutor and defense counsel, but there was no record of the
“plea negotiations,” “plea bargaining,” or “compromise.” The result
has been a flood of postconviction claims which require evidentiary
hearings and frequently conflicting testimony concerning the plea
negotiations. There has also been criticism of the practice of
requiring a defendant, upon a negotiated guilty plea, to give a
negative reply to the court’s inquiry concerning any “promise” made
to the defendant. This is designed to avoid the foregoing pitfalls and
criticisms by having the negotiations made of record and permitting
some control of them. See Commentary to Standard 3.1 ABA
Standards relating to pleas of guilty.
(a) From Standard 3.1a.
(b) From Standard 3.2.
(c) From Standard 3.3 except for omission of that part of
standard which prohibits trial judge from participating in plea
discussions.
(d) From Standard 3.4.
1977 Amendment. This is a rewording of the prior rule in
order to set out the responsibilities of the participants. The rule
recognizes the ultimate responsibility of the trial judge, but it
encourages prosecution and defense counsel to assist the trial
judge in this regard. When the circumstances of the case so merit,
it is the responsibility of each respective party to discuss a fair
disposition in lieu of trial. For protection of the prosecutor and the
defendant, plea discussions between the state and a pro se
defendant should be recorded, in writing or electronically.
(b) New in Florida.
(1)(i) Restatement of policy followed by extensive revision in
the form of Federal Rule of Criminal Procedure 11(e)(1).
(1)(ii) The rule sets out discretionary minimum professional
prosecutorial procedure where either victim or law enforcement
officers are involved to better guide the trial judge.
(2)(i) Mandatory responsibility of prosecutor contemplates
disposition with no presentence investigation.
(2)(ii) Mandatory record protects both the prosecutor and the
pro se defendant.
(c)(1) Renumbering subdivision (b) of prior rule.
(2)(i) New in Florida. This proposed language makes it
mandatory for defense counsel to advise fully defendant of all plea
offers by the state. Defense counsel should also discuss and explain
to the defendant those matters which trial judge will inquire about
before accepting a plea.
(2)(ii) Same as prior rule 3.171(b), paragraph 2.
(d) Now embraces and renumbers former rule 3.171(c). The
content of former rule 3.171(d) now appears as part of new rule
3.172.
RULE 3.172 cases. ACCEPTANCE OF GUILTY OR NOLO
CONTENDERE PLEA
(a) Voluntariness; Factual Basis. Before accepting a plea of
guilty or nolo contendere, the trial judge shall determine that the
plea is voluntarily entered and that a factual basis for the plea
exists. Counsel for the prosecution and the defense shall assist the
trial judge in this function.
(b) Open Court. All pleas shall be taken in open court,
except that when good cause is shown a plea may be taken in
camera.
(c) Determination of Voluntariness. Except when a
defendant is not present for a plea pursuant to the provisions of
rule 3.180(d), the trial judge must, when determining voluntariness,
place the defendant under oath, address the defendant personally,
and determine on the record that he or she understands:
(1) Nature of the Charge. The nature of the charge to
which the plea is offered, the maximum possible penalty, and any
mandatory minimum penalty provided by law.
(2) Right to Representation. If not represented by an
attorney, that the defendant has the right to be represented by an
attorney at every stage of the proceeding and, if necessary, an
attorney will be appointed to represent him or her.
(3) Right to Trial By Jury and Attendant Rights. The
right to plead not guilty or to persist in that plea if it has already
been made, the right to be tried by a jury, and at that trial a
defendant has the right to the assistance of counsel, the right to
compel attendance of witnesses on his or her behalf, the right to
confront and cross-examine witnesses against him or her, and the
right not to testify or be compelled to incriminate himself or herself.
(4) Effect of Plea. Upon a plea of guilty, or nolo
contendere without express reservation of the right to appeal, he or
she gives up the right to appeal all matters relating to the judgment,
including the issue of guilt or innocence, but does not impair the
right to review by appropriate collateral attack.
(5) Waiving Right to Trial. If the defendant pleads guilty
or is adjudged guilty after a plea of nolo contendere there will not be
a further trial of any kind, so that by pleading guilty or nolo
contendere he or she waives the right to a trial.
(6) Questioning by Judge. If the defendant pleads guilty
or nolo contendere, the trial judge may ask the defendant questions
about the offense to which he or she has pleaded, and if the
defendant answers these questions under oath, on the record, and
in the presence of counsel, the answers may later be used against
him or her in a prosecution for perjury.
(7) Terms of Plea Agreement. The complete terms of any
plea agreement, including specifically all obligations the defendant
will incur as a result.
(8) Deportation Consequences.
(A) If the defendant is not a citizen of the United
States, a finding of guilt by the court, and the court’s acceptance of
the defendant’s plea of guilty or no contest, regardless of whether
adjudication of guilt has been withheld, may have the additional
consequence of changing his or her immigration status, including
deportation or removal from the United States.
(B) The court should advise the defendant to
consult with counsel if he or she needs additional information
concerning the potential deportation consequences of the plea.
(C) If the defendant has not discussed the
potential deportation consequences with his or her counsel, prior to
accepting the defendant’s plea, the court is required, upon request,
to allow a reasonable amount of time to permit the defendant to
consider the appropriateness of the plea in light of the advisement
described in this section.
(D) This admonition should be given to all
defendants in all cases, and the trial court must not require at the
time of entering a plea that the defendant disclose his or her legal
status in the United States.
(9) Sexually Violent or Sexually Motivated Offenses. If
the defendant pleads guilty or nolo contendere, and the offense to
which the defendant is pleading is a sexually violent offense or a
sexually motivated offense, or if the defendant has been previously
convicted of such an offense, the plea may subject the defendant to
involuntary civil commitment as a sexually violent predator upon
completion of his or her sentence. It shall not be necessary for the
trial judge to determine whether the present or prior offenses were
sexually motivated, as this admonition shall be given to all
defendants in all cases.
(10) Driver License Suspension or Revocation. If the
defendant pleads guilty or nolo contendere and the offense to which
the defendant is pleading is one for which automatic, mandatory
driver license suspension or revocation is required by law to be
imposed, either by the court or by a separate agency, the plea will
provide the basis for the suspension or revocation of the defendant’s
driver license.
(d) DNA Evidence Inquiry. Before accepting a defendant’s
plea of guilty or nolo contendere to a felony, the judge must inquire
whether counsel for the defense has reviewed the discovery
disclosed by the state, whether such discovery included a listing or
description of physical items of evidence, and whether counsel has
reviewed the nature of the evidence with the defendant. The judge
must then inquire of the defendant and counsel for the defendant
and the state whether physical evidence containing DNA is known
to exist that could exonerate the defendant. If no such physical
evidence is known to exist, the court may accept the defendant’s
plea and impose sentence. If such physical evidence is known to
exist, upon defendant’s motion specifying the physical evidence to
be tested, the court may postpone the proceeding and order DNA
testing.
(e) Acknowledgment by Defendant. Before the trial judge
accepts a guilty or nolo contendere plea, the judge must determine
that the defendant either:
(1) acknowledges his or her guilt; or
(2) acknowledges that he or she feels the plea to be in
his or her best interest, while maintaining his or her innocence.
(f) Proceedings of Record. The proceedings at which a
defendant pleads guilty or nolo contendere shall be of record.
(g) Withdrawal of Plea Offer or Negotiation. No plea offer
or negotiation is binding until it is accepted by the trial judge
formally after making all the inquiries, advisements, and
determinations required by this rule. Until that time, it may be
withdrawn by either party without any necessary justification.
(h) Withdrawal of Plea When Judge Does Not Concur. If
the trial judge does not concur in a tendered plea of guilty or nolo
contendere arising from negotiations, the plea may be withdrawn.
(i) Evidence. Except as otherwise provided in this rule,
evidence of an offer or a plea of guilty or nolo contendere, later
withdrawn, or of statements made in connection therewith, is not
admissible in any civil or criminal proceeding against the person
who made the plea or offer.
(j) Prejudice. Failure to follow any of the procedures in this
rule shall not render a plea void absent a showing of prejudice.
Committee Notes
1977 Adoption. New in Florida. In view of the supreme court’s
emphasis on the importance of this procedure as set forth in
Williams v. State, 316 So. 2d 267 (Fla. 1975), the committee felt it
appropriate to expand the language of former rule 3.170(j) (deleted)
and establish a separate rule. Incorporates Federal Rule of Criminal
Procedure 11(c) and allows for pleas of convenience as provided in
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970).
(a), (b) Mandatory record of voluntariness and factual
predicate is proper responsibility of counsel as well as the court.
(c)(iv)This waiver of right to appeal is a change from the
proposed amendments to the rules of criminal procedure now
pending. A sentence if lawful is not subject to appellate review; a
judgment, however, is. The committee was of the opinion that the
proposed rule should be expanded to include a waiver of appeal
from the judgment as well as the sentence. Waivers of appeal have
been approved. United States ex rel. Amuso v. LaValle, 291 F.Supp.
383 (E.D.N.Y. 1968), aff’d 427 F.2d 328 (2d Cir. 1970); State v.
Gibson, 68 N.J. 499, 348 A.2d 769 (1975); People v. Williams, 36
N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684 (1975).
(vii) Requires the court to explain the plea agreement to the
defendant, including conditions subsequent such as conditions of
probation.
(e) Provides a readily available record (either oral or by use
of standard forms) in all cases where a felony is charged.
(h) Rewording of federal rule 11(e)(6).
2005 Amendment. Rule 3.172(c)(9) added. See section
394.910, et seq., Fla. Stat.; and State v. Harris, 881 So. 2d 1079
(Fla. 2004).
2015 Amendment. In view of the holdings in Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), and Hernandez v.
State, 124 So. 3d 757 (Fla. 2012), the Committee felt it appropriate
to expand the requirements in subdivision (c)(8).
RULE 3.180 cases. PRESENCE OF DEFENDANT
(a) Presence of Defendant. In all prosecutions for crime the
defendant must be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not
guilty has been made in writing under the provisions of rule
3.170(a);
(3) at any pretrial conference, unless the defendant’s
presence is waived in writing or on the record by the defendant or
by the defendant’s counsel with the defendant’s consent;
(4) at the beginning of the trial during the examination,
challenging, impaneling, and swearing of the jury;
(5) at all proceedings before the court when the jury is
present;
(6) when evidence is addressed to the court out of the
presence of the jury for the purpose of laying the foundation for the
introduction of evidence before the jury;
(7) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the
imposition of sentence.
(b) Presence; Definition. A defendant is present for
purposes of this rule if the defendant has a meaningful opportunity
to be heard through counsel on the issues being discussed and the
defendant:
(1) is physically in attendance for the courtroom
proceeding;
(2) waives physical attendance in writing or on the
record for a proceeding that requires the defendant’s presence
under subdivision (a)(2) or (a)(9), the court accepts the wavier, and
the defendant appears by audio-video communication technology;
or
(3) appears by audio-video communication technology
for a first appearance hearing under rule 3.130.
(c) Defendant Absenting Self.
(1) Trial. If the defendant is present at the beginning of
the trial and thereafter, during the progress of the trial or before the
verdict of the jury has been returned into court, voluntarily absents
himself or herself from the presence of the court without leave of
court, or is removed from the presence of the court because of his
or her disruptive conduct during the trial, the trial of the cause or
the return of the verdict of the jury in the case shall not thereby be
postponed or delayed, but the trial, the submission of the case to
the jury for verdict, and the return of the verdict thereon shall
proceed in all respects as though the defendant were present in
court at all times.
(2) Sentencing. If the defendant is present at the
beginning of the trial and thereafter absents himself or herself as
described in subdivision (1), or if the defendant enters a plea of
guilty or no contest and thereafter absents himself or herself from
sentencing, the sentencing may proceed in all respects as though
the defendant were present at all times.
(d) Defendant May Be Tried in Absentia for
Misdemeanors. Persons prosecuted for misdemeanors may, at their
own request, by leave of court, be excused from attendance at any
or all of the proceedings aforesaid.
(e) Presence of Corporation. A corporation may appear by
counsel at all times and for all purposes.
Committee Notes
1968 Adoption. (a) The suggested rule is in great part a
recopying of section 914.01, Florida Statutes:
In (3) the words “at the beginning of the trial” are
recommended for inclusion to avoid questions arising as to the
necessity for the defendant’s presence at times other than upon
trial, such as when the jury venire is ordered, etc.
Subdivision (a)(8) is not in the present statute. However, it is
deemed advisable to include it, as the several sections of chapter
921, Florida Statutes, particularly section 921.07, appear to
impliedly or expressly require the defendant’s presence at such
times.
(c) The statute and the suggested rule make no distinction
between capital and other cases. In all probability, however, were a
person on trial for a capital case to escape during trial, a mistrial
should be ordered if such person were not captured within a
reasonable time.
(d) It is suggested that this language be used rather than the
all-inclusive general language of the present statute as to
misdemeanor cases.
(e) This provision does not appear in section 914.01, Florida
Statutes, but it is a part of Federal Rule of Criminal Procedure 43. It
is deemed useful to include it.
1972 Amendment. Same as prior rule except (3) added to
conform to rule 3.220(k); other subdivisions renumbered.
RULE 3.181 cases. NOTICE TO SEEK DEATH PENALTY
In a prosecution for a capital offense, if the prosecutor intends
to seek the death penalty, the prosecutor must give notice to the
defendant of the state’s intent to seek the death penalty. The notice
must be filed with the court within 45 days of arraignment. The
notice must contain a list of the aggravating factors the state
intends to prove and has reason to believe it can prove beyond a
reasonable doubt. The court may allow the prosecutor to amend
the notice upon a showing of good cause.
Committee Note
2016 Amendment. This is a new rule, in response to
legislation, and intended to complement Florida Rules of Criminal
Procedure 3.202 (Expert Testimony of Mental Mitigation During
Penalty Phase of Capital Trial; Notice and Examination by State
Expert) and 3.780 (Sentencing Hearing for Capital Cases).
V. PRETRIAL MOTIONS AND DEFENSES
RULE 3.190 cases. PRETRIAL MOTIONS
(a) In General. Every pretrial motion and pleading in
response to a motion shall be in writing and signed by the party
making the motion or the attorney for the party. This requirement
may be waived by the court for good cause shown. Each motion or
other pleading shall state the ground or grounds on which it is
based. A copy shall be served on the adverse party. A certificate of
service must accompany the filing of any pleading.
(b) Motion to Dismiss; Grounds. All defenses available to a
defendant by plea, other than not guilty, shall be made only by
motion to dismiss the indictment or information, whether the same
shall relate to matters of form, substance, former acquittal, former
jeopardy, or any other defense.
(c) Time for Moving to Dismiss. Unless the court grants
further time, the defendant shall move to dismiss the indictment or
information either before or at arraignment. The court in its
discretion may permit the defendant to plead and thereafter to file a
motion to dismiss at a time to be set by the court. Except for
objections based on fundamental grounds, every ground for a
motion to dismiss that is not presented by a motion to dismiss
within the time provided herein, shall be considered waived.
However, the court may at any time entertain a motion to dismiss
on any of the following grounds:
(1) The defendant is charged with an offense for which
the defendant has been pardoned.
(2) The defendant is charged with an offense for which
the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which
the defendant previously has been granted immunity.
(4) There are no material disputed facts and the
undisputed facts do not establish a prima facie case of guilt against
the defendant.
The facts on which the motion is based should be alleged
specifically and the motion sworn to.
(d) Traverse or Demurrer. The state may traverse or demur
to a motion to dismiss that alleges factual matters. Factual matters
alleged in a motion to dismiss under subdivision (c)(4) of this rule
shall be considered admitted unless specifically denied by the state
in the traverse. The court may receive evidence on any issue of fact
necessary to the decision on the motion. A motion to dismiss under
subdivision (c)(4) of this rule shall be denied if the state files a
traverse that, with specificity, denies under oath the material fact or
facts alleged in the motion to dismiss. The demurrer or traverse
shall be filed a reasonable time before the hearing on the motion to
dismiss.
(e) Effect of Sustaining a Motion to Dismiss. If the motion
to dismiss is sustained, the court may order that the defendant be
held in custody or admitted to bail for a reasonable specified time
pending the filing of a new indictment or information. If a new
indictment or information is not filed within the time specified in
the order, or within such additional time as the court may allow for
good cause shown, the defendant, if in custody, shall be discharged,
unless some other charge justifies a continuation in custody. If the
defendant has been released on bail, the defendant and the sureties
shall be exonerated; if money or bonds have been deposited as bail,
the money or bonds shall be refunded.
(f) Motion for Continuance.
(1) Definition. A continuance within the meaning of this
rule is the postponement of a cause for any period of time.
(2) Cause. On motion of the state or a defendant or on
its own motion, the court may grant a continuance, in its discretion
for good cause shown.
(3) Time for Filing. A motion for continuance may be
made only before or at the time the case is set for trial, unless good
cause for failure to so apply is shown or the ground for the motion
arose after the cause was set for trial.
(4) Certificate of Good Faith. A motion for continuance
shall be accompanied by a certificate of the movant’s counsel that
the motion is made in good faith.
(5) Affidavits. The party applying for a continuance may
file affidavits in support of the motion, and the adverse party may
file counter-affidavits in opposition to the motion.
(g) Motion to Suppress Evidence in Unlawful Search.
(1) Grounds. A defendant aggrieved by an unlawful
search and seizure may move to suppress anything so obtained for
use as evidence because:
(A) the property was illegally seized without a
warrant;
(B) the warrant is insufficient on its face;
(C) the property seized is not the property
described in the warrant;
(D) there was no probable cause for believing the
existence of the grounds on which the warrant was issued; or
(E) the warrant was illegally executed.
(2) Contents of Motion. Every motion to suppress
evidence shall state clearly the particular evidence sought to be
suppressed, the reasons for suppression, and a general statement
of the facts on which the motion is based.
(3) Hearing. Before hearing evidence, the court shall
determine if the motion is legally sufficient. If it is not, the motion
shall be denied. If the court hears the motion on its merits, the
defendant shall present evidence supporting the defendant’s
position and the state may offer rebuttal evidence.
(4) Time for Filing. The motion to suppress shall be
made before trial unless opportunity therefor did not exist or the
defendant was not aware of the grounds for the motion, but the
court may entertain the motion or an appropriate objection at the
trial.
(h) Motion to Suppress a Confession or Admission
Illegally Obtained.
(1) Grounds. On motion of the defendant or on its own
motion, the court shall suppress any confession or admission
obtained illegally from the defendant.
(2) Contents of Motion. Every motion made by a
defendant to suppress a confession or admission shall identify with
particularity any statement sought to be suppressed, the reasons
for suppression, and a general statement of the facts on which the
motion is based.
(3) Time for Filing. The motion to suppress shall be
made before trial unless opportunity therefor did not exist or the
defendant was not aware of the grounds for the motion, but the
court in its discretion may entertain the motion or an appropriate
objection at the trial.
(4) Hearing. The court shall receive evidence on any
issue of fact necessary to be decided to rule on the motion.
(i) Motion to Take Deposition to Perpetuate Testimony.
(1) After the filing of an indictment or information on
which a defendant is to be tried, the defendant or the state may
apply for an order to perpetuate testimony. The application shall be
verified or supported by the affidavits of credible persons that a
prospective witness resides beyond the territorial jurisdiction of the
court or may be unable to attend or be prevented from attending a
trial or hearing, that the witness’s testimony is material, and that it
is necessary to take the deposition to prevent a failure of justice.
The court shall order a commission to be issued to take the
deposition of the witnesses to be used in the trial and that any
nonprivileged designated books, papers, documents, or tangible
objects be produced at the same time and place. If the application is
made within 10 days before the trial date, the court may deny the
application.
(2) If the defendant or the state desires to perpetuate
the testimony of a witness living in or out of the state whose
testimony is material and necessary to the case, the same
proceedings shall be followed as provided in subdivision (i)(1), but
the testimony of the witness may be taken before an official court
reporter, transcribed by the reporter, and filed in the trial court.
(3) If the deposition is taken on the application of the
state, the defendant and the defendant’s attorney shall be given
reasonable notice of the time and place set for the deposition. The
officer having custody of the defendant shall be notified of the time
and place and shall produce the defendant at the examination and
keep the defendant in the presence of the witness during the
examination. A defendant not in custody may be present at the
examination, but the failure to appear after notice and tender of
expenses shall constitute a waiver of the right to be present. The
state shall pay to the defendant’s attorney and to a defendant not in
custody the expenses of travel and subsistence for attendance at
the examination. The state shall make available to the defendant for
examination and use at the deposition any statement of the witness
being deposed that is in the possession of the state and that the
state would be required to make available to the defendant if the
witness were testifying at trial.
(4) The application and order to issue the commission
may be made either in term time or in vacation. The commission
shall be issued at a time to be fixed by the court.
(5) Except as otherwise provided, the rules governing
the taking and filing of oral depositions, the objections thereto, the
issuing, execution, and return of the commission, and the opening
of the depositions in civil actions shall apply in criminal cases.
(6) No deposition shall be used or read into evidence
when the attendance of the witness can be procured. If the court
determines that any person whose deposition has been taken is
absent because of procurement, inducement, or threats of any
person on behalf of the state or of the defendant or of any person on
the defendant’s behalf, the deposition shall not be read in evidence
on behalf of the defendant.
(j) Motion to Expedite. On motion by the state, the court,
in the exercise of its discretion, shall take into consideration the
dictates of sections 825.106 and 918.0155, Florida Statutes (1995).
Committee Notes
1968 Adoption. (a) New; devised by committee.
(b) Substantially the same as section 909.02, Florida
Statutes, except changes name of “motion to quash” to “motion to
dismiss.” This conforms to the terminology of the Federal Rules of
Criminal Procedure. The statute authorizing the state to appeal
from certain orders, section 924.07, Florida Statutes, should be
amended by substituting the words “motion to dismiss” for “motion
to quash.”
(c) Combines the substance of sections 909.01 and 909.06,
Florida Statutes. Subdivision (4) affords a new remedy to an
accused. Although there is now a conclusive presumption of
probable cause once an indictment or information is filed (see
Sullivan v. State, 49 So. 2d 794 (Fla. 1951)), it is felt that this rule is
necessary. Primarily, this procedure will permit a pretrial
determination of the law of the case when the facts are not in
dispute. In a sense, this is somewhat similar to summary judgment
proceedings in civil cases, but a dismissal under this rule is not a
bar to a subsequent prosecution.
(d) New; based on Marks v. State, 115 Fla. 497, 155 So. 727
(1934), and what is generally regarded as the better practice.
Hearing provision based on federal rule 41(e).
(e) Combines federal rule 12(b)(5) and section 909.05,
Florida Statutes. With reference to the maximum time that a
defendant will be held in custody or on bail pending the filing of a
new indictment or information, the trial court is given discretion in
setting such time as to both the indictment and information. This
proposal differs from section 909.05, Florida Statutes, with
reference to the filing of a new indictment in that the statute
requires that the new indictment be found by the same grand jury
or the next grand jury having the authority to inquire into the
offense. If the supreme court has the authority to deviate from this
statutory provision by court rule, it seems that the trial court
should be granted the same discretion with reference to the
indictment that it is granted concerning the information. The
statute is harsh in that under its provisions a person can be in
custody or on bail for what may be an unreasonable length of time
before a grand jury is required to return an indictment in order that
the custody or bail be continued.
(g)(1) This subdivision is almost the same as section 916.02(1),
Florida Statutes.
(g)(2) This subdivision is almost the same as section 916.02(2),
Florida Statutes.
(g)(3) This subdivision is almost the same as section 916.03,
Florida Statutes.
(g)(4) This subdivision rewords a portion of section 916.04,
Florida Statutes.
(g)(5) This subdivision rewords section 916.07, Florida
Statutes.
(h) Same as federal rule 41(e) as to the points covered.
(i) This rule is based on 38-144-11 of the Illinois Code of
Criminal Procedure and federal rule 41(e).
(j) This subdivision rewords and adds to federal rule 14. It
covers the subject matter of section 918.02, Florida Statutes.
(k) This rule is almost the same as federal rule 13, with
provision added for trial by affidavit.
(l) Substantially same as section 916.06, Florida Statutes,
with these exceptions: application cannot be made until indictment,
information, or trial affidavit is filed; application must be made at
least 10 days before trial; oral deposition in addition to written
interrogatories is permissible.
1972 Amendment. Subdivision (h) is amended to require the
defendant to specify the factual basis behind the grounds for a
motion to suppress evidence. Subdivision (l) is amended to permit
the state to take depositions under the same conditions that the
defendant can take them. Former subdivisions (j) and (k)
transferred to rules 3.150, 3.151, and 3.152. Subdivisions (l) and
(m) renumbered (j) and (k) respectively. Otherwise, same as prior
rule.
1977 Amendment. This amendment resolves any ambiguity
in the rule as to whether the state must file a general or a specific
traverse to defeat a motion to dismiss filed under the authority of
rule 3.190(c)(4).
See State v. Kemp, 305 So. 2d 833 (Fla. 3d DCA 1974).
The amendment clearly now requires a specific traverse to
specific material fact or facts.
1992 Amendment. The amendments, in addition to gender
neutralizing the wording of the rule, make a minor grammatical
change by substituting the word “upon” for “on” in several places.
The amendments also delete language from subdivision (a) to
eliminate from the rule any reference as to when pretrial motions
are to be served on the adverse party. Because rule 3.030 addresses
the service of pleadings and papers, such language was removed to
avoid confusion and reduce redundancy in the rules.
2002 Amendment. If the trial court exercises its discretion to
consider the motion to suppress during trial, the court may
withhold ruling on the merits of the motion, and motion for a
judgment of acquittal, and allow the case to be submitted to the
jury. If the defendant is acquitted, no further proceedings regarding
the motion to suppress or motion for a judgment of acquittal would
be necessary. However, if the jury finds the defendant guilty of the
crime charged, the trial court could then consider the motion to
suppress post-trial in conjunction with the defendant’s renewed
motion for a judgment of acquittal or motion for new trial.
RULE 3.191 cases. SPEEDY TRIAL
(a) Speedy Trial without Demand. Except as otherwise
provided by this rule, and subject to the limitations imposed under
subdivisions (e) and (f), every person charged with a crime shall be
brought to trial within 90 days if the crime charged is a
misdemeanor, or within 175 days if the crime charged is a felony. If
trial is not commenced within these time periods, the defendant
shall be entitled to the appropriate remedy as set forth in
subdivision (o). The time periods established by this subdivision
shall commence when the person is formally charged with a crime
as defined under subdivision (d). A person charged with a crime is
entitled to the benefits of this rule whether the person is in custody
in a jail or correctional institution of this state or a political
subdivision thereof or is at liberty on bail or recognizance or other
pretrial release condition. This subdivision shall cease to apply
whenever a person files a valid demand for speedy trial under
subdivision (b).
(b) Speedy Trial upon Demand. Except as otherwise
provided by this rule, and subject to the limitations imposed under
subdivisions (e) and (g), every person charged with a crime by
indictment or information shall have the right to demand a trial
within 60 days, by filing with the court a separate pleading entitled
“Demand for Speedy Trial,” and serving a copy on the prosecuting
authority.
(1) No later than 5 days from the filing of a demand for
speedy trial, the court shall hold a calendar call, with notice to all
parties, for the express purposes of announcing in open court
receipt of the demand and of setting the case for trial.
(2) At the calendar call the court shall set the case for
trial to commence at a date no less than 5 days nor more than 60
days from the date of the filing of the demand.
(3) The failure of the court to hold a calendar call on a
demand that has been properly filed and served shall not interrupt
the running of any time periods under this subdivision.
(4) If the defendant has not been brought to trial within
60 days of the filing of the demand, the defendant shall have the
right to the appropriate remedy as set forth in subdivision (o).
(c) Commencement of Trial. A person shall be considered
to have been brought to trial if the trial commences within the time
herein provided. The trial is considered to have commenced when
the trial jury panel for that specific trial is sworn for voir dire
examination or, on waiver of a jury trial, when the trial proceedings
begin before the judge.
(d) Formally Charged. For the purposes of this rule, a
person si formally charged with a crime by information, or by
indictment, or in the case of alleged misdemeanors by whatever
documents constitute a formal charge.
(e) Prisoners outside Jurisdiction. A person who is in
federal custody or incarcerated in a jail or correctional institution
outside the jurisdiction of this state or a subdivision thereof, and
who is charged with a crime, is not entitled to the benefit of this
rule until that person returns or is returned to the jurisdiction of
the court within which the Florida charge is pending and until
written notice of the person’s return is filed with the court and
served on the prosecutor. For these persons, the time period under
subdivision (a) commences on the date the last act required under
this subdivision occurs. For these persons the time period under
subdivision (b) commences when the demand is filed so long as the
acts required under this subdivision occur before the filing of the
demand. If the acts required under this subdivision do not precede
the filing of the demand, the demand is invalid and shall be
stricken upon motion of the prosecuting attorney. Nothing in this
rule shall affect a prisoner’s right to speedy trial under law.
(f) Consolidation of Felony and Misdemeanor. When a
felony and a misdemeanor are consolidated for disposition in circuit
court, the misdemeanor shall be governed by the same time period
applicable to the felony.
(g) Demand for Speedy Trial; Accused Is Bound. A
demand for speedy trial binds the accused and the state. No
demand for speedy trial shall be filed or served unless the accused
has a bona fide desire to obtain a trial sooner than otherwise might
be provided. A demand for speedy trial shall be considered a
pleading that the accused is available for trial, has diligently
investigated the case, and is prepared or will be prepared for trial
within 5 days. A demand filed by an accused who has not diligently
investigated the case or who is not timely prepared for trial shall be
stricken as invalid on motion of the prosecuting attorney. A demand
may not be withdrawn by the accused except on order of the court,
with consent of the state or on good cause shown. Good cause for
continuances or delay on behalf of the accused thereafter shall not
include nonreadiness for trial, except as to matters that may arise
after the demand for trial is filed and that reasonably could not
have been anticipated by the accused or counsel for the accused. A
person who has demanded speedy trial, who thereafter is not
prepared for trial, is not entitled to continuance or delay except as
provided in this rule.
(h) Notice of Expiration of Time for Speedy Trial; When
Timely. A notice of expiration of speedy trial time shall be timely if
filed and served after the expiration of the periods of time for trial
provided in this rule. However, a notice of expiration of speedy trial
time filed before expiration of the period of time for trial is invalid
and shall be stricken on motion of the prosecuting attorney.
(i) When Time May Be Extended. The periods of time
established by this rule may be extended, provided the period of
time sought to be extended has not expired at the time the
extension was procured. An extension may be procured by:
(1) stipulation, announced to the court or signed in
proper person or by counsel, by the party against whom the
stipulation is sought to be enforced;
(2) written or recorded order of the court on the court’s
own motion or motion by either party in exceptional circumstances
as hereafter defined in subdivision (l);
(3) written or recorded order of the court with good
cause shown by the accused;
(4) written or recorded order of the court for a period of
reasonable and necessary delay resulting from proceedings
including but not limited to an examination and hearing to
determine the mental competency or physical ability of the
defendant to stand trial, for hearings on pretrial motions, for
appeals by the state, for DNA testing ordered on the defendant’s
behalf upon defendant’s motion specifying the physical evidence to
be tested pursuant to section 925.12(2), Florida Statutes, and for
trial of other pending criminal charges against the accused; or
(5) administrative order issued by the chief justice,
under Florida Rule of General Practice and Judicial Administration
2.205(a)(2)(B)(iv) or (v), suspending the speedy trial procedures as
stated therein.
(j) Delay and Continuances; Effect on Motion. If trial of
the accused does not commence within the periods of time
established by this rule, a pending motion for discharge shall be
granted by the court unless it is shown that:
(1) a time extension has been ordered under
subdivision (i) and that extension has not expired;
(2) the failure to hold trial is attributable to the
accused, a codefendant in the same trial, or their counsel;
(3) the accused was unavailable for trial under
subdivision (k); or
(4) the demand referred to in subdivision (g) is invalid.
If the court finds that discharge is not appropriate for reasons
under subdivisions (j)(2), (j)(3), or (j)(4), the pending motion for
discharge shall be denied, provided, however, that trial shall be
scheduled and commence within 90 days of a written or recorded
order of denial.
(k) Availability for Trial. A person is unavailable for trial if
the person or the person’s counsel fails to attend a proceeding at
which either’s presence is required by these rules, or the person or
counsel is not ready for trial on the date trial is scheduled. A person
who has not been available for trial during the term provided for in
this rule is not entitled to be discharged. No presumption of
nonavailability attaches, but if the state objects to discharge and
presents any evidence tending to show nonavailability, the accused
must establish, by competent proof, availability during the term.
(l) Exceptional Circumstances. As permitted by
subdivision (i) of this rule, the court may order an extension of the
time periods provided under this rule when exceptional
circumstances are shown to exist. Exceptional circumstances may
not include general congestion of the court’s docket, lack of diligent
preparation, failure to obtain available witnesses, or other avoidable
or foreseeable delays. Exceptional circumstances are those that, as
a matter of substantial justice to the accused or the state or both,
require an order by the court. These circumstances include, but are
not limited to:
(1) unexpected illness, unexpected incapacity, or
unforeseeable and unavoidable absence of a person whose presence
or testimony is uniquely necessary for a full and adequate trial;
(2) a showing by the state that the case is so unusual
and so complex, because of the number of defendants or the nature
of the prosecution or otherwise, that it is unreasonable to expect
adequate investigation or preparation within the periods of time
established by this rule;
(3) a showing by the state that specific evidence or
testimony is not available despite diligent efforts to secure it, but
will become available at a later time;
(4) a showing by the accused or the state of necessity
for delay grounded on developments that could not have been
anticipated and that materially will affect the trial;
(5) a showing that a delay is necessary to accommodate
a codefendant, when there is reason not to sever the cases to
proceed promptly with trial of the defendant; or
(6) a showing by the state that the accused has caused
major delay or disruption of preparation of proceedings, as by
preventing the attendance of witnesses or otherwise.
(m) Effect of Mistrial; Appeal; Order of New Trial. A person
who is to be tried again or whose trial has been delayed by an
appeal by the state or the defendant shall be brought to trial within
90 days from the date of declaration of a mistrial by the trial court,
the date of an order by the trial court granting a new trial, the date
of an order by the trial court granting a motion in arrest of
judgment, or the date of receipt by the trial court of a mandate,
order, or notice of whatever form from a reviewing court that makes
possible a new trial for the defendant, whichever is last in time. If a
defendant is not brought to trial within the prescribed time periods,
the defendant shall be entitled to the appropriate remedy as set
forth in subdivision (o).
(n) Discharge with Prejudice from Crime; Effect.
Discharge with prejudice from a crime under this rule shall operate
to bar prosecution of the crime charged and of all other crimes on
which trial has not commenced nor conviction obtained nor
adjudication withheld and that were or might have been charged as
a result of the same conduct or criminal episode as a lesser degree
or lesser included offense.
(o) Remedy for Failure to Try Defendant within the
Specified Time.
(1) No remedy shall be granted to any defendant under
this rule until the court has made the required inquiry under
subdivision (j).
(2) At any time after the expiration of the prescribed
time period, the defendant may file a separate pleading entitled
“Notice of Expiration of Speedy Trial Time,” and serve a copy on the
prosecuting authority.
(3) No later than 5 days from the date of the filing of a
notice of expiration of speedy trial time, the court shall hold a
hearing on the notice and, unless the court finds that one of the
reasons set forth in subdivision (j) exists, shall order that the
defendant be brought to trial within 30 days. This recapture period
is mandatory before any remedy will be given under this rule. A
defendant not brought to trial within the 30-day period through no
fault of the defendant, on motion of the defendant, shall be
discharged from the crime. This discharge shall be without
prejudice unless there is a determination that the defendant’s
constitutional right to speedy trial has been violated. If there is a
determination that the constitutional speedy trial right has been
violated, discharge shall be with prejudice as set forth in
subdivision (n).
Committee Notes
1972 Amendment. Same as prior rule. The schedule is
omitted as being unnecessary.
1977 Amendment. An appeal by the state from an order
dismissing the case constitutes an interlocutory appeal and should
be treated as such. The additional phrase removes any ambiguities
in the existing rule.
1980 Amendment.
(a)(1). Speedy Trial without Demand.
1. Prisoners in Florida institutions are now treated like any
other defendant [formerly (b)(1)].
2. Federal prisoners and prisoners outside Florida may
claim the benefit of this subdivision once special prerequisites are
satisfied under (b)(1).
3. Before a court can discharge a defendant, the court must
make complete inquiry to ensure that discharge is appropriate.
(a)(2). Speedy Trial upon Demand.
1. Trial cannot be scheduled within 5 days of the filing of
the demand without the consent of both the state and the
defendant.
2. Before a court can discharge a defendant, the court must
make complete inquiry to ensure that discharge is appropriate.
3. Prisoners in Florida are now treated like any other
defendant [formerly (b)(2)].
4. Federal prisoners and prisoners outside Florida may
claim the benefit of this subdivision once special prerequisites are
satisfied under (b)(1).
(a)(3). Commencement of Trial.
1. Minor change in language to reflect case law.
(a)(4). Custody. [NEW]
1. Custody is defined in terms tantamount to arrest. This
definition was formerly contained in (a)(1).
2. Where a notice to appear is served in lieu of arrest,
custody results on the date the notice is served.
(b)(1). Prisoners outside Jurisdiction. [NEW]
1. Prisoners outside the jurisdiction of Florida may claim
benefit under (a)(1) and (a)(2) after the prisoner returns to the
jurisdiction of the court where the charge is pending and after the
prisoner files and serves a notice of this fact.
2. As an alternative, certain prisoners may claim the benefit
of sections 941.45–941.50, Florida Statutes (1979).
3. Former (b)(1) is repealed.
(b)(2). [NEW]
1. Where a misdemeanor and felony are consolidated for
purposes of trial in circuit court, the misdemeanor is governed by
the same time period applicable to the felony. To claim benefit
under this provision, the crimes must be consolidated before the
normal time period applicable to misdemeanors has expired.
2. Former (b)(2) is repealed.
(b)(3). Repealed and superseded by (b)(1).
(c). Demand for Speedy Trial.
1. The subdivision recognizes that an invalid (spurious)
demand must be stricken.
2. The subdivision now puts a 5-day limit on the time when
a defendant must be prepared.
(d)(1). Motion for Discharge.
1. Under the amended provision, a prematurely filed motion
is invalid and may be stricken.
(d)(2). When Time May Be Extended.
1. The terms “waiver,” “tolling,” or “suspension” have no
meaning within the context of the subdivision as amended. The
subdivision addresses extensions for a specified period of time.
2. Except for stipulations, all extensions require an order of
the court.
3. The term “recorded order” refers to stenographic
recording and not recording of a written order by the clerk.
(d)(3). Delay and Continuances.
1. Even though the normal time limit has expired under
(a)(1) or (a)(2), a trial court may not properly discharge a defendant
without making a complete inquiry of possible reasons to deny
discharge. If the court finds that the time period has been properly
extended and the extension has not expired, the court must simply
deny the motion. If the court finds that the delay is attributable to
the accused, that the accused was unavailable for trial, or that the
demand was invalid, the court must deny the motion and schedule
trial within 90 days. If the court has before it a valid motion for
discharge and none of the above circumstances are present, the
court must grant the motion.
(e). Availability for Trial.
1. Availability for trial is now defined solely in terms of
required attendance and readiness for trial.
(f). Exceptional Circumstances.
1. The 2 extension limit for unavailable evidence has been
discarded.
2. The new trial date paragraph was eliminated because it
simply was unnecessary.
(g). Effect of Mistrial; Appeal; Order of New Trial.
1. Makes uniform a 90-day period within which a defendant
must be brought to trial after a mistrial, order of new trial, or
appeal by the state or defendant.
(h)(1). Discharge from Crime.
1. No change.
(h)(2). Nolle Prosequi.
1. No change.
1984 Amendment.
(a)(1). Repeals the remedy of automatic discharge from the
crime and refers instead to the new subdivision on remedies.
(a)(2). Establishes the calendar call for the demand for
speedy trial when filed. This provision, especially sought by
prosecutors, brings the matter to the attention of both the court
and the prosecution. The subdivision again repeals the automatic
discharge for failure to meet the mandated time limit, referring to
the new subdivision on remedies for the appropriate remedy.
(I). The intent of (I)(4) is to provide the state attorney with 15
days within which to bring a defendant to trial from the date of the
filing of the motion for discharge. This time begins with the filing of
the motion and continues regardless of whether the judge hears the
motion.
This subdivision provides that, upon failure of the prosecution
to meet the mandated time periods, the defendant shall file a
motion for discharge, which will then be heard by the court within 5
days. The court sets trial of the defendant within 10 additional
days. The total 15-day period was chosen carefully by the
committee, the consensus being that the period was long enough
that the system could, in fact, bring to trial a defendant not yet
tried, but short enough that the pressure to try defendants within
the prescribed time period would remain. In other words, it gives
the system a chance to remedy a mistake; it does not permit the
system to forget about the time constraints. It was felt that a period
of 10 days was too short, giving the system insufficient time in
which to bring a defendant to trial; the period of 30 days was too
long, removing incentive to maintain strict docket control in order
to remain within the prescribed time periods.
The committee further felt that it was not appropriate to
extend the new remedy provisions to misdemeanors, but only to
more serious offenses.
1992 Amendment. The purpose of the amendments is to
gender neutralize the wording of the rule. In addition, the
committee recommends the rule be amended to differentiate
between 2 separate and distinct pleadings now referred to as
“motion for discharge.” The initial “motion for discharge” has been
renamed “notice of expiration of speedy trial time.”
2018 Amendment. In light of the ruling in Smart v. State, 179
So. 3d 477 (Fla. 4th DCA 2015), as well as the precedent cited
therein, the committee notes that the reference to the swearing in of
trial jury panel for voir dire examination contained in the Florida
Rule of Criminal Procedure 3.191(c) relates to the giving of the oath
contained in Florida Rule of Criminal Procedure 3.300(a). The oath
is not required to be given in any particular location or by any
particular official.
RULE 3.192 cases. MOTIONS FOR REHEARING
When an appeal by the state is authorized by Florida Rule of
Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida
Statutes, the state may file a motion for rehearing within 10 days of
an order subject to appellate review. A motion for rehearing shall
state with particularity the points of law or fact that, in the opinion
of the state, the court has overlooked or misapprehended in its
decision, and shall not present issues not previously raised in the
proceeding. A response may be filed within 10 days of service of the
motion. The trial court’s order disposing of the motion for rehearing
shall be filed within 15 days of the response but not later than 40
days from the date of the order of which rehearing is sought. A
timely filed motion for rehearing shall toll rendition of the order
subject to appellate review and the order shall be deemed rendered
upon the filing of a signed, written order denying the motion for
rehearing. This rule shall not apply to postconviction proceedings
pursuant to rule 3.800(a), 3.801, 3.850, 3.851, or 3.853. Nothing in
this rule precludes the trial court from exercising its inherent
authority to reconsider a ruling while the court has jurisdiction of
the case.
RULE 3.200 cases. NOTICE OF ALIBI
On the written demand of the prosecuting attorney, specifying
as particularly as is known to the prosecuting attorney the place,
date, and time of the commission of the crime charged, a defendant
in a criminal case who intends to offer evidence of an alibi in
defense shall, not less than 10 days before trial or such other time
as the court may direct, file and serve on the prosecuting attorney a
notice in writing of an intention to claim an alibi, which notice shall
contain specific information as to the place at which the defendant
claims to have been at the time of the alleged offense and, as
particularly as is known to the defendant or the defendant’s
attorney, the names and addresses of the witnesses by whom the
defendant proposes to establish the alibi. Not more than 5 days
after receipt of defendant’s witness list, or any other time as the
court may direct, the prosecuting attorney shall file and serve on
the defendant the names and addresses (as particularly as are
known to the prosecuting attorney) of the witnesses the state
proposes to offer in rebuttal to discredit the defendant’s alibi at the
trial of the cause. Both the defendant and the prosecuting attorney
shall be under a continuing duty to promptly disclose the names
and addresses of additional witnesses who come to the attention of
either party subsequent to filing their respective witness lists as
provided in this rule. If a defendant fails to file and serve a copy of
the notice as herein required, the court may exclude evidence
offered by the defendant for the purpose of providing an alibi,
except the defendant’s own testimony. If the notice is given by a
defendant, the court may exclude the testimony of any witness
offered by the defendant for the purpose of proving an alibi if the
name and address of the witness as particularly as is known to the
defendant or the defendant’s attorney is not stated in the notice. If
the prosecuting attorney fails to file and serve a copy on the
defendant of a list of witnesses as herein provided, the court may
exclude evidence offered by the state in rebuttal to the defendant’s
alibi evidence. If notice is given by the prosecuting attorney, the
court may exclude the testimony of any witness offered by the
prosecuting attorney for the purpose of rebutting the defense of
alibi if the name and address of the witness as particularly as is
known to the prosecuting attorney is not stated in the notice. For
good cause shown the court may waive the requirements of this
rule.
Committee Notes
1968 Adoption. The rule is completely new in Florida.
Fourteen states have adopted notice of alibi statutes or rules:
Arizona Supreme Court Rules of Criminal Procedure 192 (enacted
in 1940); Ind.Ann.Stat. 9-1631, 9-1632, 9-1633 (1956) (enacted in
1935); Iowa Code Ann. 777 18 (1958) (enacted in 1941);
Kan.Gen.Stat. Ann. 62-1341 (1949) (enacted in 1935);
Mich.Stat.Ann. 630.14 (1947) (enacted in 1935); N.J. Superior and
County Court Criminal Practice Rule 3:5-9 (1948) (enacted in 1934);
N.Y. Code of Crim. Proc. 295-L (1935) (enacted in 1935); Ohio Rev.
Code Ann. 2945.58 (1953) (enacted in 1929); Okla.Stat.Ann. 22-585
(1937) (enacted in 1935); S.D. Code 34.2801 (1939) (enacted in
1935); Utah Code Ann. 77-22-17 (1953) (enacted in 1935);
Vt.Stat.Ann. 13-6561, 6562 (1958) (enacted in 1935); Wis.Stat.Ann.
955.07 (1958) (enacted in 1935).
The rule is modeled after the Ohio, New York, and New Jersey
statutes:
(1) The requirement of notice in writing is taken from the
Ohio statute.
(2) The requirement of an initial demand by the prosecuting
attorney is based on the New York and New Jersey statutes.
(3) The requirement of a mutual exchange of witness lists is
based on those statutes which require the defendant to disclose
alibi witnesses. In the interest of mutuality, the requirement of a
reciprocal exchange of witness lists has been added. The
enforcement provision is based on the Ohio and New York statutes.
In New York, a defendant who fails to give advance notice of alibi
may still give alibi testimony himself. People v. Rakiec, 23 N.Y.S.2d
607, aff’d 45 N.E.2d 812 (1942).
For an excellent article on notice of alibi statutes, court
decisions thereunder, and some empirical data on the practical
effect of the rules, see David M. Epstein, “Advance Notice of Alibi,”
55 J. Crim. L. & Criminology 29 (1964).
1972 Amendment. Same as prior rule.
1992 Amendment. The purpose of the amendments is to
gender neutralize the wording of the rule.
RULE 3.201 cases. BATTERED-SPOUSE SYNDROME DEFENSE
(a) Battered-Spouse Syndrome. When in any criminal case
it shall be intention of the defendant to rely on the defense of
battered-spouse syndrome at trial, no evidence offered by the
defendant for the purpose of establishing that defense shall be
admitted in the case unless advance notice in writing of the defense
shall have been given by the defendant as hereinafter provided.
(b) Time for Filing Notice. The defendant shall give notice
of intent to rely on the defense of battered-spouse syndrome no
later than 30 days prior to trial. The notice shall contain a
statement of particulars showing the nature of the defense the
defendant expects to prove and the names and addresses of the
witnesses by whom the defendant expects to show battered-spouse
syndrome, insofar as possible.
RULE 3.202 cases. EXPERT TESTIMONY OF MENTAL MITIGATION
DURING PENALTY PHASE OF CAPITAL TRIAL;
NOTICE AND EXAMINATION BY STATE EXPERT
(a) Notice of Intent to Seek Death Penalty. The provisions
of this rule apply only in those capital cases in which the state gives
timely written notice of its intent to seek the death penalty.
(b) Notice of Intent to Present Expert Testimony of
Mental Mitigation. When in any capital case, in which the state
has given notice of intent to seek the death penalty under
subdivision (a) of this rule, it must be the intention of the defendant
to present, during the penalty phase of the trial, expert testimony of
a mental health professional, who has tested, evaluated, or
examined the defendant, in order to establish statutory or
nonstatutory mental mitigating circumstances, the defendant must
give written notice of intent to present such testimony.
(c) Time for Filing Notice; Contents. The defendant must
give notice of intent to present expert testimony of mental
mitigation not less than 20 days before trial. The notice must
contain a statement of particulars listing the statutory and
nonstatutory mental mitigating circumstances the defendant
expects to establish through expert testimony and the names and
addresses of the mental health experts by whom the defendant
expects to establish mental mitigation, insofar as is possible.
(d) Appointment of State Expert; Time of Examination.
After the filing of such notice and on the motion of the state
indicating its desire to seek the death penalty, the court must order
that, within 48 hours after the defendant is convicted of a crime
punishable by death, the defendant be examined by a mental health
expert chosen by the state. Attorneys for the state and defendant
may be present at the examination. The examination must be
limited to those mitigating circumstances the defendant expects to
establish through expert testimony.
(e) Defendant’s Refusal to Cooperate. If the defendant
refuses to be examined by or fully cooperate with the state’s mental
health expert, the court may, in its discretion:
(1) order the defense to allow the state’s expert to
review all mental health reports, tests, and evaluations by the
defendant’s mental health expert; or
(2) prohibit defense mental health experts from
testifying concerning mental health tests, evaluations, or
examinations of the defendant.
Committee Note
2016 Amendment. This is a new rule, in response to
legislation, and intended to complement Florida Rules of Criminal
Procedure 3.181 (Notice to Seek Death Penalty) and 3.780
(Sentencing Hearing for Capital Cases).
RULE 3.203 cases. DEFENDANT’S INTELLECTUAL DISABILITY AS A
BAR TO IMPOSITION OF THE DEATH PENALTY
(a) Scope. This rule applies in all cases in which a defendant
is convicted of a crime punishable by death, the state attorney has
not waived the death penalty on the record, and the defendant’s
intellectual disability becomes an issue.
(b) Definition of Intellectual Disability. As used in this
rule, the term “intellectual disability” means significantly
subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during the period
from conception to age 18. The term “significantly subaverage
general intellectual functioning,” for the purpose of this rule, means
performance that is 2 or more standard deviations from the mean
score on a standardized intelligence test authorized by the
Department of Children and Families in rule 65G-4.011 of the
Florida Administrative Code. The term “adaptive behavior,” for the
purpose of this rule, means the effectiveness or degree with which
an individual meets the standards of personal independence and
social responsibility expected of his or her age, cultural group, and
community.
(c) Motion for Determination of Intellectual Disability as
a Bar to Execution; Contents; Procedures.
(1) A defendant who intends to raise intellectual
disability as a bar to execution must file a written motion to
establish intellectual disability as a bar to execution with the court.
(2) The motion must state that the defendant is
intellectually disabled and, if the defendant has been tested,
evaluated, or examined by 1 or more experts, the names and
addresses of the experts. Reports containing the opinions of any
experts named in the motion must be attached to the motion. The
court must appoint an expert chosen by the state attorney if the
state attorney so requests. The expert must promptly test, evaluate,
or examine the defendant and must submit a written report of any
findings to the parties and the court.
(3) If the defendant has not been tested, evaluated, or
examined by 1 or more experts, the motion must state that fact and
the court must appoint 2 experts who must promptly test, evaluate,
or examine the defendant and must submit a written report of any
findings to the parties and the court.
(4) Attorneys for the state and defendant may be
present at the examinations conducted by court-appointed experts.
(5) If the defendant refuses to be examined or fully
cooperate with the court appointed experts or the state’s expert, the
court may, in the court’s discretion:
(A) order the defense to allow the court-appointed
experts to review all mental health reports, tests, and evaluations
by the defendant’s expert;
(B) prohibit the defense experts from testifying
concerning any tests, evaluations, or examinations of the defendant
regarding the defendant’s intellectual disability; or
(C) order such relief as the court determines to be
appropriate.
(d) Time for filing Motion for Determination of
Intellectual Disability as a Bar to Execution. The motion for a
determination of intellectual disability as a bar to execution must
be filed not later than 90 days before trial, or at such time as is
ordered by the court.
(e) Hearing on Motion to Determine Intellectual
Disability. The circuit court must conduct an evidentiary hearing
on the motion for a determination of intellectual disability. At the
hearing, the court must consider the findings of the experts and all
other evidence on the issue of whether the defendant is
intellectually disabled. The court must enter a written order
prohibiting the imposition of the death penalty and setting forth the
court’s specific findings in support of the court’s determination if
the court finds that the defendant is intellectually disabled as
defined in subdivision (b) of this rule. The court must stay the
proceedings for 30 days from the date of rendition of the order
prohibiting the death penalty or, if a motion for rehearing is filed,
for 30 days following the rendition of the order denying rehearing,
to allow the state the opportunity to appeal the order. If the court
determines that the defendant has not established intellectual
disability, the court must enter a written order setting forth the
court’s specific findings in support of the court’s determination.
(f) Waiver. A claim authorized under this rule is waived if
not filed in accord with the time requirements for filing set out in
this rule, unless good cause is shown for the failure to comply with
the time requirements.
(g) Finding of Intellectual Disability; Order to Proceed. If,
after the evidence presented, the court is of the opinion that the
defendant is intellectually disabled, the court must order the case
to proceed without the death penalty as an issue.
(h) Appeal. An appeal may be taken by the state if the court
enters an order finding that the defendant is intellectually disabled,
which will stay further proceedings in the trial court until a decision
on appeal is rendered. Appeals are to proceed according to Florida
Rule of Appellate Procedure 9.140(c).
(i) Motion to Establish Intellectual Disability as a Bar to
Execution; Stay of Execution. The filing of a motion to establish
intellectual disability as a bar to execution will not stay further
proceedings without a separate order staying execution.
RULE 3.210 cases. INCOMPETENCE TO PROCEED: PROCEDURE
FOR RAISING THE ISSUE
(a) Proceedings Barred during Incompetency. A person
accused of an offense or a violation of probation or community
control who is mentally incompetent to proceed at any material
stage of a criminal proceeding must not be proceeded against while
incompetent.
(1) A “material stage of a criminal proceeding” includes
the trial of the case, pretrial hearings involving questions of fact on
which the defendant might be expected to testify, entry of a plea,
violation of probation or violation of community control
proceedings, sentencing, hearings on issues regarding a defendant’s
failure to comply with court orders or conditions, or other matters
where the mental competence of the defendant is necessary for a
just resolution of the issues being considered. The terms
“competent,” “competence,” “incompetent,” and “incompetence,” as
used in rules 3.210–3.219, refer to mental competence or
incompetence to proceed at a material stage of a criminal
proceeding.
(2) The incompetence of the defendant does not
preclude such judicial action, hearings on motions of the parties,
discovery proceedings, or other procedures that do not require the
personal participation of the defendant.
(b) Motion for Evaluation. If at or in anticipation of any
material stage(s) of a criminal proceeding the court, on its own
motion or by motion of the state or defense, has reasonable grounds
to believe that the defendant is not mentally competent to proceed,
the court must promptly commence the process to determine the
defendant’s mental condition. The court may order the defendant to
be evaluated by no more than 3 experts, as needed, and must
expeditiously schedule and conduct a competency hearing.
Attorneys for the state and for the defendant may be present at any
examination by a court-appointed expert. Status hearing(s) must be
held no later than 20 days after the motion date and as otherwise
necessary to ensure prompt resolution, absent good cause, a final
hearing conducted no later than 45 days from the motion date.
(1) A motion for the evaluation made by counsel for the
defendant must be written and contain a certificate of counsel that
the motion is made in good faith and on reasonable grounds to
believe that the defendant may be incompetent to proceed. To the
extent that it does not invade the lawyer-client privilege, the motion
shall contain a recital of the specific observations of and
conversations with the defendant that have formed the basis for the
motion.
(2) A motion for the evaluation made by counsel for the
state must be written and contain a certificate of counsel that the
motion is made in good faith and on reasonable grounds to believe
the defendant may be incompetent to proceed and shall include a
recital of the specific facts that have formed the basis for the
motion, including a recitation of the observations of and statements
of the defendant that have caused the state to file the motion.
(3) If the defendant has been released on bail or other
release provision, the court may order the defendant to appear at a
designated place for evaluation at a specific time as a condition of
such release. If the court determines that the defendant will not
submit to the evaluation or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the determination of the
defendant’s competency to proceed. A motion made for evaluation
under this subdivision does not otherwise affect the defendant’s
right to release.
(4) The order appointing experts must, as described in
Rule 3.211:
(A) identify the purpose or purposes of the
evaluation, including the nature of the material proceeding(s), and
specify the area or areas of inquiry that should be addressed by the
evaluator;
(B) specify the legal criteria to be applied; and
(C) specify the date by which the report should be
submitted and to whom the report should be submitted.
Committee Notes
1968 Adoption. (a) Same as section 917.01, Florida Statutes,
except it was felt that court cannot by rule direct institution
officials. Thus words, “he shall report this fact to the court which
conducted the hearing. If the officer so reports” and concluding
sentence, “No defendant committed by a court to an institution, by
reason of the examination referred to in this paragraph, shall be
released therefrom, without the consent of the court committing
him,” should be omitted from the rule but retained by statute.
(b) Same as section 909.17, Florida Statutes.
(c) Same as section 917.02, Florida Statutes.
1972 Amendment. Subdivision (a)(3) refers to Jackson v.
Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972);
also, United States v. Curry, 410 F.2d 1372 (4th Cir. 1969).
Subdivision (d) is added to give the court authority to confine an
insane person who is likely to cause harm to others even if the
person is otherwise entitled to bail. The amendment does not apply
unless the defendant contends that he or she is insane at the time
of trial or at the time the offense was committed. The purpose of the
amendment is to prevent admittedly insane persons from being at
large when there is a likelihood they may injure themselves or
others.
1977 Amendment. This language is taken, almost verbatim,
from existing rule 3.210(a). The word “insane” is changed to reflect
the new terminology, “competence to stand trial.” The definition of
competence to stand trial is taken verbatim from the United States
Supreme Court formulation of the test in Dusky v. United States,
362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
(a)(2) The first part of this paragraph is taken, almost verbatim,
from the existing rule. The right of counsel for the state to move for
such examination has been added.
(b)(1) In order to confine the defendant as incompetent to stand
trial, the defendant must be confined under the same standards as
those used for civil commitment. These criteria were set forth in the
recent U.S. Supreme Court case of Jackson v. Indiana, 406 U.S.
715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), in which it was held to
be a denial of equal protection to subject a criminal defendant to a
more lenient commitment standard than would be applied to one
not charged with a crime. Therefore, the criteria for involuntary civil
commitment should be incorporated as the criteria for commitment
for incompetence to stand trial.
In this subdivision is found the most difficult of the problems
to resolve for the rule. The head-on conflict between the Department
of Health and Rehabilitative Services, a part of the executive branch
of the government, and the courts occurs when the administrator
determines that a defendant no longer should be confined, but the
trial judge does not wish the defendant released because the trial
judge feels that further commitment is necessary. Under the civil
commitment model, the administrator has the power to release a
committed patient at such time as the administrator feels the
patient no longer meets the standards for commitment. Obviously,
since a defendant in a criminal case is under the jurisdiction of the
court, such immediate release is unwarranted.
The time period of the initial commitment parallels that of civil
commitment.
(b)(2) treats the problem of what the court should do with a
defendant who is not competent to stand trial, but who fails to meet
the criteria for commitment. If incompetent, but not in need of
treatment and not dangerous, then the defendant cannot be
committed. The present rule provides for dismissal of the charges
immediately. There appears to be no reason why someone in this
situation should not be released pending trial on bail, as would
other defendants.
The finding of “not guilty by reason of insanity,” required
under the present rule when a defendant cannot be tried by reason
of incompetence, seems inappropriate since such a defense admits
the commission of the fact of the crime but denies the defendant’s
mental state. Since no such finding has been made (and cannot be
made), the verdict entered of not guilty by reason of insanity is not
appropriate. Further, it would give a defendant, later competent, a
res judicata or double jeopardy defense, the verdict being a final
determination of guilt or innocence. It would seem far more
appropriate to withdraw the charges. A defendant who regains
competence within the period of the statute of limitations could still
be tried for the offense, if such trial is warranted.
One of the major problems confronting the institution in which
an incompetent person is being held is that of obtaining consent for
medical procedures and treatment, not necessarily mental
treatment. Generally, under the statute, the patient civilly
committed is not thereby deemed incompetent to consent. At the
commitment hearing in the civil proceedings, the judge may make
the general competency determination. It is recommended that the
same process apply in the hearing on competency to stand trial,
and that, if the trial judge does not find the defendant incompetent
for other purposes, the defendant be legally considered competent
for such other purposes.
1980 Amendment.
(a) This provision is identical to that which has been
contained in all prior rules and statutes relating to competence to
stand trial. No change is suggested.
(b) In order to ensure that the proceedings move quickly the
court is required to set a hearing within 20 days. This subdivision
should be read in conjunction with rule 3.211 which requires the
experts to submit their report to the court at such time as the court
shall specify. The court therefore determines the time on which the
report is to be submitted. The provision requiring at least 2 but no
more than 3 experts is meant to coincide with section 394.02,
Florida Statutes (1979), in which the legislature provides for the
number of experts to be appointed and that at least 1 of such
experts be appointed from a group of certain designated state-
related professionals. This legislative restriction on appointment will
ensure that the Department of Health and Rehabilitative Services
will, to some extent, be involved in the hospitalization decision-
making process. Other possible procedures were discussed at great
length both among members of the committee and with
representatives of the legislature, but it was decided that any more
specific procedures should be developed on the local level in the
individual circuits and that it would be inappropriate to mandate
such specific procedures in a statewide court rule. Since it was felt
by the committee to be a critical stage in the proceedings and
subject to Sixth Amendment provisions, and since no psychiatrist-
patient privilege applies to this stage of the proceeding, the
committee felt that attorneys for both sides should have the right to
be present at such examinations.
(1) and (2) A motion for examination relative to competency to
stand trial should not be a “boiler plate” motion filed in every case.
The inclusion of specific facts in the motion will give the trial judge
a basis on which to determine whether there is sufficient indication
of incompetence to stand trial that experts should be appointed to
examine the defendant. Provision was made that conversations and
observations need not be disclosed if they were felt to violate the
lawyer-client privilege. Observations of the defendant were included
in this phrase in that these may, in some cases, be considered
“verbal acts.”
(3) The mere filing of a motion for examination to determine
competence to stand trial should not affect in any way the provision
for release of a defendant on bail or other pretrial release provision.
If a defendant has been released on bail, the judgment already
having been made that he or she is so entitled, and as long as the
defendant will continue to appear for appropriate evaluations, the
mere fact that the motion was filed should not abrogate the right to
bail. Obviously, if other factors would affect the defendant’s right to
release or would affect the right to release on specific release
conditions, those conditions could be changed or the release
revoked. By making the requirement that the defendant appear for
evaluation a condition of release, the court can more easily take
back into custody a defendant who has refused to appear for
evaluation, and the defendant can then be evaluated in custody.
1988 Amendment. Title. The title is amended to reflect
change in subdivision (a)(1), which broadens the issue of
competency in criminal proceedings from the narrow issue of
competency to stand trial to competency to proceed at any material
stage of a criminal proceeding.
(a) This provision is broadened to prohibit proceeding
against a defendant accused of a criminal offense or a violation of
probation or community control and is broadened from competency
to stand trial to competency to proceed at any material stage of a
criminal proceeding as defined in subdivision (1).
(1) This new provision defines a material stage of a criminal
proceeding when an incompetent defendant may not be proceeded
against. This provision includes competence to be sentenced, which
was previously addressed in rule 3.740 and is now addressed with
more specificity in the new rule 3.214. Under the Florida Supreme
Court decision of Jackson v. State, 452 So. 2d 533 (Fla. 1984), this
definition would not apply to a motion under rule 3.850.
(2) This new provision allows certain matters in a criminal
case to proceed, even if a defendant is determined to be
incompetent, in areas not requiring the personal participation of the
defendant.
(b) This provision is amended to reflect the changes in
subdivision (a) above.
(1) Same as above.
(2) Same as above.
(3) Same as above. This provision also changes the phrase
“released from custody on a pre-trial release provision” to “released
on bail or other release provision” because the term “custody” is
subject to several interpretations.
(4) This new provision is designed to specify and clarify in
the order appointing experts, the matters the appointed experts are
to address, and to specify when and to whom their reports are to be
submitted. Court-appointed experts often do not understand the
specific purpose of their examination or the specifics of the legal
criteria to be applied. Specifying to whom the experts’ reports are to
be submitted is designed to avoid confusion.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. In 1985, the Florida Legislature enacted amendments to
part I of chapter 394, the “Florida Mental Health Act,” and
substantial amendments to chapter 916 entitled “Mentally Deficient
and Mentally Ill Defendants.” The effect of the amendments is to
avoid tying mentally ill or deficient defendants in the criminal
justice system to civil commitment procedures in the “Baker Act.”
Reference to commitment of a criminal defendant found not guilty
by reason of insanity has been removed from section 394.467,
Florida Statutes. Chapter 916 now provides for specific commitment
criteria of mentally ill or mentally retarded criminal defendants who
are either incompetent to proceed or who have been found not
guilty by reason of insanity in criminal proceedings.
In part, the following amendments to rules 3.210 to 3.219 are
designed to reflect the 1985 amendments to chapters 394 and 916.
Florida judges on the criminal bench are committing and the
Department of Health and Rehabilitative Services (HRS) mental
health treatment facilities are admitting and treating those mentally
ill and mentally retarded defendants in the criminal justice system
who have been adjudged incompetent to stand trial and defendants
found to be incompetent to proceed with violation of probation and
community control proceedings. Judges are also finding such
defendants not guilty by reason of insanity and committing them to
HRS for treatment, yet there were no provisions for such
commitments in the rules.
Some of the amendments to rules 3.210 to 3.219 are designed
to provide for determinations of whether a defendant is mentally
competent to proceed in any material stage of a criminal proceeding
and provide for community treatment or commitment to HRS when
a defendant meets commitment criteria under the provisions of
chapter 916 as amended in 1985.
RULE 3.211 cases. COMPETENCE TO PROCEED: SCOPE OF
EXAMINATION AND REPORT
(a) Examination by Experts. On appointment by the court,
the experts must examine the defendant with respect to the issue of
competence to proceed, as specified by the court in its order
appointing the experts to evaluate the defendant, and must
evaluate the defendant as ordered.
(1) The experts must first consider factors related to
the issue of whether the defendant meets the criteria for
competence to proceed; that is, whether the defendant has
sufficient present ability to consult with counsel with a reasonable
degree of rational understanding and whether the defendant has a
rational, as well as factual, understanding of the pending
proceedings.
(2) In considering the issue of competence to proceed,
the examining experts must consider and include in their report:
(A) the defendant’s capacity to:
(i) appreciate the charges or allegations
against the defendant;
(ii) appreciate the range and nature of
possible penalties, if applicable, that may be imposed in the
proceedings against the defendant;
(iii) understand the adversary nature of the
legal process;
(iv) disclose to counsel facts pertinent to the
proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the
experts.
(b) Factors to Be Evaluated. If the experts should find that
the defendant is incompetent to proceed, the experts must report on
any recommended treatment for the defendant to attain competence
to proceed. In considering the issues relating to treatment, the
examining experts must report on:
(1) the mental illness or intellectual disability causing
the incompetence;
(2) the completion of a clinical assessment by approved
mental health experts trained by the department to ensure safety of
the patient and the community;
(3) the treatment or treatments appropriate for the
mental illness or intellectual disability of the defendant and an
explanation of each of the possible treatment alternatives,
including, at a minimum, mental health services, treatment
services, rehabilitative services, support services, and case
management services as described in s. 394.67, which may be
provided by or within multi-disciplinary community treatment
teams, such as Florida Assertive Community Treatment, conditional
release programs, outpatient services or intensive outpatient
treatment programs, and supportive employment and supportive
housing opportunities in treating and supporting the recovery of the
patient;
(4) the availability of acceptable treatment. If treatment
is available in the community, the expert must so state in the
report; and
(5) the likelihood of the defendant attaining competence
under the treatment recommended, an assessment of the probable
duration of the treatment required to restore competence, and the
probability that the defendant will attain competence to proceed in
the foreseeable future.
(c) Written Findings of Experts. Any written report
submitted by the experts must:
(1) identify the specific matters referred for evaluation;
(2) describe the evaluative procedures, techniques, and
tests used in the examination and the purpose or purposes for
each;
(3) state the expert’s clinical observations, findings,
and opinions on each issue referred for evaluation by the court, and
indicate specifically those issues, if any, on which the expert could
not give an opinion;
(4) identify the sources of information used by the
expert and present the factual basis for the expert’s clinical findings
and opinions; and
(5) include a full and detailed explanation regarding
why the alternative treatment options referenced in the evaluation
are insufficient to meet the needs of the defendant.
The procedure for determinations of the confidential status of
reports is governed by Rule of General Practice and Judicial
Administration 2.420.
(d) Limited Use of Competency Evidence.
(1) The information contained in any motion by the
defendant for determination of competency to proceed or in any
report of experts filed under this rule insofar as the report relates
solely to the issues of competency to proceed and commitment, and
any information elicited during a hearing on competency to proceed
or commitment held under this rule, must be used only in
determining the mental competency to proceed or the commitment
or other treatment of the defendant.
(2) The defendant waives this provision by using the
report, or portions thereof, in any proceeding for any other purpose,
in which case disclosure and use of the report, or any portion
thereof, are governed by applicable rules of evidence and rules of
criminal procedure. If a part of the report is used by the defendant,
the state may request the production of any other portion of that
report that, in fairness, ought to be considered.
Committee Notes
1980 Adoption. This rule provides for appointment of experts
and for the contents of the report which the experts are to render.
Since the issue of competency has been raised, the experts will, of
course, report on this issue. If there is reason to believe that
involuntary hospitalization is also required, the court should order
the experts to make this evaluation as well during their initial
examination. It was felt, however, that the experts should not
inquire into involuntary hospitalization as a matter of course, but
only if sufficient reasonable grounds to do so were alleged in the
motion, comparing the procedure to that required by the civil
commitment process.
(a) Certain factors relating to competency to stand trial have
been determined to be appropriate for analysis by examining
experts. Often, with different experts involved, the experts do not
use the same criteria in reaching their conclusions. The criteria
used by experts who testify at the competency and commitment
hearings may not be the same as those used by persons involved in
the treatment process or later hearings after treatment. This
subdivision, therefore, addresses those factors which, at least,
should be considered by experts at both ends of the spectrum.
Additional factors may be considered, and these factors listed may
be addressed in different ways. At least the requirement that these
specific factors be addressed will give a common basis of
understanding for the experts at the competency hearing, the trial
judge, and the experts who will later receive a defendant who is
found to be incompetent to stand trial and in need of involuntary
hospitalization. The test for determining competency to stand trial
is that which has been contained in both the prior rules and
statutes developed from Dusky v. United States, 362 U.S. 402, 80
S.Ct. 788, 4 L.Ed.2d 824 (1960).
(1) The factors set forth in this section have been developed
by the Department of Health and Rehabilitative Services (HRS) in its
Competency Evaluation Instrument, a refinement of the McGarry
Competency Evaluation Procedure.
(b) The issue of involuntary hospitalization is to be
considered only if the court has ordered the experts to consider this
issue; the court would do so if it found that there existed reasonable
grounds to believe that the defendant met the criteria for
involuntary hospitalization. The factors set forth in order to
determine this issue are those that have been developed through
prior statutes relating to involuntary hospitalization, from the case
of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435
(1972), and In Re: Beverly, 342 So. 2d 481 (Fla. 1977).
As to criteria for involuntary hospitalization, see chapter 394,
Florida Statutes, or, in the case of mental retardation, see chapter
393, Florida Statutes.
Section 394.467(1), Florida Statutes (1979), prescribes criteria
for involuntary hospitalization or placement. In case of mental
retardation, section 393.11, Florida Statutes (1979), governs.
(c) In most instances, the issues of incompetency at time of
trial and insanity at time of the offense will be raised at the same
time or, at least, in the same case. In the event that the 2 are not
raised in the same case, there would be no reason for the examining
experts to inquire into the mental status of the defendant at the
time of the offense itself at the incompetency examination. However,
if insanity as a defense is raised, it would be most appropriate for
judicial efficiency to have the examining experts inquire into all
issues at the same time. This provision permits such inquiry by the
experts in the event that notice of intent to rely on the defense of
insanity has been filed by the defendant.
(d) This provision is meant to permit local circuits to develop
their own forms for such reports if they feel that such forms are
appropriate. It does not preclude HRS from suggesting a form that
would be of particular assistance to them and requesting its
adoption, but adoption is not mandated.
(e) This subdivision provides for the confidentiality of the
information obtained by virtue of an examination of the defendant
pursuant to this subdivision. Cf. §90.108, Fla.Stat. (1979);
Fla.R.Civ.P. 1.330(6).
Section 916.12, Florida Statutes is a companion statute
relating to mental competence to stand trial.
1988 Amendment. Title. The title is amended to reflect
changes in rule 3.210.
(a) This subdivision, which was originally an introductory
paragraph, is amended to reflect changes in rule 3.210. The
deletions related to the extent of the evaluation and when and to
whom the experts’ reports are to be submitted have been placed in
rule 3.210(4) above.
(1) This subdivision, which was formerly subdivision (a), has
been amended to reflect changes in rule 3.210 above.
(2) This provision has been amended to reflect the changes
to rule 3.210. In addition, the 11 factors previously numbered (i)
through (xi) have been reduced to 6 factors. Numbers (v), (vi), (vii),
(x), and (xi) have been removed. Those 5 factors were felt to not be
directly related to the issue of a defendant having the mental
capacity to communicate with his or her attorney or to understand
the proceedings against him or her and may have had the effect of
confusing the issues the experts are to address in assessing a
defendant’s competency to proceed. The terms “ability” and
“capacity” which were used interchangeably in the prior version of
this provision have been changed to the single term “capacity” for
continuity. A provision has been added which allows the appointed
expert to also include any other factors deemed relevant to take into
account different techniques and points of view of the experts.
(b) This subdivision, including its 4 subdivisions, is
amended to reflect the changes in rule 3.210. It also expands the
determination from the limited area of whether an incompetent
defendant should be voluntarily committed to treatment to
recommended treatment options designed to restore or maintain
competence. Subdivision (v) has been deleted because consideration
of less restrictive alternatives is addressed in other amendments.
[See rule 3.212(c)(3)(iv).] The amendments further reflect 1985
legislative amendments to chapters 394 and 916, Florida Statutes.
(ii) Appropriate treatment may include maintaining the
defendant on psychotropic or other medication. See rule 3.215.
(c) This provision is amended to take into account the
defense of insanity both at trial and in violation of
probation/community control hearings.
(d) This provision deletes the old language relating to the use
of standardized forms. The new provision, with its 4 subdivisions,
outlines in detail what the written report of an expert is to include,
to ensure the appointed expert understands what issues are to be
addressed, and that the report identifies sources of information,
tests or evaluation techniques used, and includes the findings and
observations upon which the expert’s opinion is based. It requires
the expert to specify those issues on which the expert could not
render an opinion.
(e) This provision is amended to comply with changes in rule
3.210. In addition, the second paragraph has been expanded to
clarify under what circumstances the reports of experts in a
competency evaluation may be discovered by the prosecution and
used as evidence in a hearing other than the hearing on the issue of
a defendant’s competency to proceed.
1992 Amendment. The purpose of the amendments is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.212 cases. COMPETENCE TO PROCEED: HEARING AND
DISPOSITION
(a) Admissibility of Evidence. The experts preparing the
reports may be called by either party or the court, and additional
evidence may be introduced by either party. The experts appointed
by the court are deemed court witnesses whether called by the
court or either party and may be examined as such by either party.
(b) Finding of Competence. The court must first consider
the issue of the defendant’s competence to proceed. If the court
finds the defendant competent to proceed, the court must enter its
order so finding and proceed.
(c) Commitment on Finding of Incompetence. If the court
finds the defendant is incompetent to proceed, or that the
defendant is competent to proceed but that the defendant’s
competence depends on the continuation of appropriate treatment
for a mental illness or intellectual disability, the court must
consider issues relating to treatment necessary to restore or
maintain the defendant’s competence to proceed.
(1) The court may order the defendant to undergo
treatment if the court finds that the defendant is mentally ill or
intellectually disabled and is in need of treatment and that
treatment appropriate for the defendant’s condition is available. If
the court finds that the defendant may be treated in the community
on bail or other release conditions, the court may make acceptance
of reasonable medical treatment a condition of continuing bail or
other release conditions.
(2) If the defendant is incarcerated, the court may order
treatment to be administered at the custodial facility or may order
the defendant transferred to another facility for treatment or may
commit the defendant as provided in subdivision (3).
(3) A defendant may be committed for treatment to
restore a defendant’s competence to proceed if the court finds that:
(A) the defendant meets the criteria for
commitment as set forth by statute;
(B) there is a substantial probability that the
mental illness or intellectual disability causing the defendant’s
incompetence will respond to treatment and that the defendant will
regain competency to proceed in the reasonably foreseeable future;
(C) treatment appropriate for restoration of the
defendant’s competence to proceed is available;
(D) no appropriate treatment alternative less
restrictive than that involving commitment is available; and
(E) other mental health services, treatment
services, support services, and case management services as
described in section 394.67, Florida Statutes, would be
inappropriate.
(4) If the court commits the defendant, the order of
commitment must contain:
(A) findings of fact relating to the issues of
competency and commitment addressing the factors set forth in
rule 3.211 when applicable;
(B) copies of the reports of the experts filed with
the court under the order of examination;
(C) copies of any other psychiatric, psychological,
or social work reports submitted to the court relative to the mental
state of the defendant; and
(D) copies of the charging instrument and all
supporting affidavits or other documents used in the determination
of probable cause.
(5) Before issuing a commitment order, the court must
review the examining expert’s report to ensure alternative treatment
options have been fully considered and found insufficient to meet
the needs of the defendant.
(6) The treatment facility must admit the defendant for
hospitalization and treatment and may retain and treat the
defendant. No later than 60 days from the date of admission, the
administrator of the facility must file with the court a report that
addresses the issues and considers the factors set forth in rule
3.211, with copies to all parties. If, at any time during the 60 day
period or during any period of extended commitment that may be
ordered under this rule, the administrator of the facility determines
that the defendant no longer meets the criteria for commitment or
has become competent to proceed, the administrator must notify
the court by such a report, with copies to all parties.
(A) If, during the 60 day period of commitment
and treatment or during any period of extended commitment that
may be ordered under this rule, counsel for the defendant must
have reasonable grounds to believe that the defendant is competent
to proceed or no longer meets the criteria for commitment, counsel
may move for a hearing on the issue of the defendant’s competence
or commitment. The motion must contain a certificate of counsel
that the motion is made in good faith and on reasonable grounds to
believe that the defendant is now competent to proceed or no longer
meets the criteria for commitment. To the extent that it does not
invade the attorney-client privilege, the motion must contain a
recital of the specific observations of and conversations with the
defendant that have formed the basis for the motion.
(B) If, on consideration of a motion filed by
counsel for the defendant or the prosecuting attorney and any
information offered the court in support thereof, the court has
reasonable grounds to believe that the defendant may have regained
competence to proceed or no longer meets the criteria for
commitment, the court must order the administrator of the facility
to report to the court on such issues, with copies to all parties, and
must order a hearing to be held on those issues.
(7) The court must hold a hearing within 30 days of the
receipt of the report from the administrator of the facility. If,
following the hearing, the court determines that the defendant
continues to be incompetent to proceed and that the defendant
meets the criteria for continued commitment or treatment, the court
must order continued commitment or treatment for a period not to
exceed 1 year. When the defendant is retained by the facility, the
same procedure must be repeated prior to the expiration of each
additional 1–year period of extended commitment.
(8) If, at any time after such commitment, the court
decides, after hearing, that the defendant is competent to proceed,
it shall enter its order so finding and shall proceed.
(9) If, after any such hearing, the court determines that
the defendant remains incompetent to proceed but no longer meets
the criteria for commitment, the court shall proceed as provided in
rule 3.212(d).
(d) Release on Finding of Incompetence. If the court
decides that a defendant is not mentally competent to proceed and
there is a substantial probability that the defendant will gain
competency to proceed in the foreseeable future, but does not meet
the criteria for commitment, the defendant may be released on
appropriate release conditions. The court may order that the
defendant receive outpatient treatment at an appropriate local
facility and that the defendant report for further evaluation at
specified times during the release period as conditions of release. A
report must be filed with the court after each evaluation by the
persons appointed by the court to make such evaluations, with
copies to all parties. The procedure for determinations of the
confidential status of reports is governed by Rule of General
Practice and Judicial Administration 2.420. If a defendant is found
to be mentally incompetent to proceed and there is no substantial
probability that the defendant will gain competency to proceed in
the foreseeable future, the defendant must be released, or the State
must initiate civil commitment proceedings.
Committee Notes
1980 Adoption. This rule sets forth the procedure for the
hearing itself. If other experts have been involved who were not
appointed pursuant to this rule, provision is made that such
experts may then be called by either party. Those experts appointed
by the court to conduct the examination, if called by the court or by
either party to testify at the hearing, will be regarded as court
experts. Either party may then examine such experts by leading
questions or may impeach such experts. If a party calls an expert
witness other than those appointed by the court pursuant to these
rules, the usual evidentiary rules of examining such witnesses shall
then apply. Following the hearing, the court may come to one of 3
conclusions: (a) the defendant is competent to stand trial, rule
3.212(a); (b) the defendant is incompetent to stand trial and is in
need of involuntary hospitalization, rule 3.212(b); or (c) the
defendant is incompetent to stand trial but is not in need of
involuntary hospitalization, rule 3.212(c).
(a) This provision has been contained in every prior rule or
statute relating to the issues of competency to stand trial and
provides that if the defendant is competent the trial shall
commence. No change is recommended.
(b) This subdivision provides for the second possible finding
of the court, namely that the defendant is found incompetent to
stand trial and is in need of involuntary hospitalization. It is
designed to track the provisions of chapter 394, Florida Statutes,
relating to involuntary hospitalization and the provisions of chapter
393 relating to residential services insofar as they may apply to the
defendant under criminal charges. In this way, the procedures to be
set up by the institution to which a criminal defendant is sent
should not vary greatly from procedures common to the institution
in the involuntary hospitalization or residential treatment of those
not subject to criminal charges.
The criteria for involuntary hospitalization are set forth in
section 394.467(1), Florida Statutes (1979). As to involuntary
hospitalization for mental retardation, see section 393.11, Florida
Statutes (1979); definition of treatment facility, see section 394.455,
Florida Statutes (1979); involuntary admission to residential
services, see section 393.11, Florida Statutes (1979).
(2) The requirement that there be certain contents to the
order of commitment is set forth in order to give greater assistance
to the personnel of the treatment facility. The information to be
included in the order should give them the benefit of all information
that has been before the trial judge and has been considered by
that judge in making the decision to involuntarily hospitalize the
defendant. This information should then assist the personnel of the
receiving institution in making their initial evaluation and in
instituting appropriate treatment more quickly. The last
requirement, that of supporting affidavits or other documents used
in the determination of probable cause, is to give some indication of
the nature of the offense to the examining doctors to enable them to
determine when the defendant has reached a level of improvement
that he or she can discuss the charge with “a reasonable degree of
rational understanding.”
(3) This subdivision is designed to correspond with a
complementary section of the Florida Statutes. It mandates, as does
the statute, that the treatment facility must admit the defendant for
hospitalization and treatment. The time limitations set forth in this
subdivision are designed to coincide with those set forth in chapter
394, Florida Statutes. If, however, the defendant should regain
competence or no longer meets hospitalization criteria prior to the
expiration of any of the time periods set, the administrator of the
facility may report to the court and cause a re-evaluation of the
defendant’s mental status. At the end of the 6–month period, and
every year thereafter, the administrator must report to the court.
These time periods are set forth so as to coincide with chapter 394,
Florida Statutes.
(i) Permits the defendant’s attorney, in an appropriate case,
to request a hearing if the attorney believes the defendant to have
regained competency. The grounds for such belief are to be
contained in the motion, as is a certificate of the good faith of
counsel in filing it. If the motion is sufficient to give the court
reasonable grounds to believe that the defendant may be competent
or no longer meets the criteria for hospitalization, the court can
order a report from the administrator and hold a hearing on the
issues.
(4) The rule is meant to mandate that the court hold a
hearing as quickly as possible, but the hearing must be held at
least within 30 days of the receipt of the report from the
administrator of the facility.
(c) This rule provides for the disposition of the defendant
who falls under the third of the alternatives listed above, that is,
one who is incompetent to stand trial but does not meet the
provisions for involuntary hospitalization. It is meant to provide as
great a flexibility as possible for the trial judge in handling such
defendant.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979).
Section 916.13, Florida Statutes complements this rule and
provides for the hospitalization of defendants adjudicated
incompetent to stand trial.
1988 Amendment. Title. The title has been amended to reflect
changes in rules 3.210 and 3.211.
(a) This provision was formerly the introductory paragraph
to this rule. It has been labeled subdivision (a) for consistency in
form.
(b) This provision was former subdivision (a). It has been
amended to reflect changes in rules 3.210 and 3.211. The former
subdivisions (b) and (b)(1) have been deleted because similar
language is now found in new subdivision (c).
(c) This new provision, including all its subdivisions, is
designed to reflect the commitment criteria in section 916.13(1),
Florida Statutes, and to reflect that commitment to the Department
of Health and Rehabilitative Services is to be tied to specific
commitment criteria when no less restrictive treatment alternative
is available.
(1) This provision provides for available community
treatment when appropriate.
(2) This provision provides for treatment in a custodial
facility or other available community residential program.
(3) This provision, and its subdivisions, outlines when a
defendant may be committed and refers to commitment criteria
under the provisions of section 916.13(1), Florida Statutes.
(4) This provision, and its subdivisions, was formerly
subdivision (b)(2). The language has been amended to reflect
changes in chapter 916 relating to the commitment of persons
found incompetent to proceed and changes in rules 3.210 and
3.211.
(5) This provision, and its subdivisions, was formerly
subdivision (b)(3). The amendments are for the same reasons as (4)
above.
(6) This provision was formerly subdivision (b)(4). The
amendments are for the same reasons as (4) above.
(7) This provision was formerly subdivision (b)(5). The
amendments are for the same reasons as (4) above.
(8) This provision was formerly subdivision (b)(6). The
amendments are for the same reasons as (4) above.
(d) The amendments to the provision are for the same
reasons as (4) above.
1992 Amendment. The amendments substitute “shall” in
place of “may” in subdivision (c)(5)(B) to require the trial court to
order the administrator of the facility where an incompetent
defendant has been committed to report to the court on the issue of
competency when the court has reasonable grounds to believe that
the defendant may have regained competence to proceed or no
longer meets the criteria for commitment. The amendments also
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.213 cases. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING; DISPOSITION
(a) Dismissal without Prejudice during Continuing
Incompetency.
After a determination that a person is incompetent to stand
trial or proceed with a probation or community control violation
hearing, the charge(s):
(1) shall be dismissed 1 year after a finding if the
charge is a misdemeanor;
(2) shall be dismissed no later than 2 years after a
finding if incompetency is due to intellectual disability or autism;
(3) may be dismissed 3 years after a finding, unless a
charge is listed in section 916.145, Florida Statutes; or
(4) shall be dismissed after a finding that the defendant
has remained incompetent for 5 continuous and uninterrupted
years;
provided that the court finds that the defendant remains
incompetent to stand trial or proceed with a probation or
community control violation hearing unless the court in its order
specifies its reasons for believing that the defendant is expected to
become competent to proceed. A dismissal under this rule shall be
without prejudice to the state to refile the charge(s) should the
defendant be declared competent to proceed in the future.
(b) Commitment or Treatment during Continuing
Incompetency.
(1) If the defendant meets the criteria for commitment
under section 394.467, Florida Statutes, the court shall commit the
defendant to the Department of Children and Families for
involuntary hospitalization solely under the provisions of law. If the
defendant meets the criteria of section 394.4655, Florida Statutes,
the court may order that the defendant receive outpatient treatment
at any other facility or service on an outpatient basis subject to the
provisions of those statutes. In the order of commitment, the judge
shall order that the administrator of an inpatient facility notify the
state attorney of the committing circuit no less than 30 days prior
to the anticipated date of release of the defendant.
(2) If the continuing incompetency is due to intellectual
disability or autism, and the defendant either lacks the ability to
provide for his or her well-being or is likely to physically injure
himself or herself, or others, the defendant may be involuntarily
admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants
determined to be incompetent to proceed with sentencing, which is
addressed in rule 3.214.
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); as to involuntary admission to
residential services, see chapter 393, Florida Statutes (1979).
(b) This provision is meant to deal with the defendant who
remains incompetent after 5 years, and who does meet the criteria
for involuntary hospitalization. It provides that the criminal charges
will be dismissed and the defendant will be involuntarily
hospitalized. It further provides that the administrator of the facility
must notify the state attorney prior to any release of a defendant
committed pursuant to this subdivision.
As to criteria for involuntary hospitalization, see section
394.467(1), Florida Statutes (1979); in case of retardation, see
chapter 393, Florida Statutes (1979).
(c) Since commitment criteria for a defendant determined to
be incompetent to stand trial are the same as for civil
hospitalization, there is no need to continue the difference between
felony and misdemeanor procedure.
Section 916.14, Florida Statutes, makes the statute of
limitations and defense of former jeopardy inapplicable to criminal
charges dismissed because of incompetence of defendant to stand
trial.
1988 Amendment. Title. The title has been amended to
comply with changes in rule 3.210, but specifically excludes
competency to proceed with sentencing, which is addressed in the
new rule 3.214.
(a) This provision was amended to reflect changes in rules
3.210 and 3.211. New language is added which specifies that, if
charges are dismissed under this rule, it is without prejudice to the
state to refile if the defendant is declared competent to proceed in
the future. Similar language was previously found in rule 3.214(d),
but is more appropriate under this rule.
(b) This provision has been amended for the same reasons
as (a) above.
(c) This new provision specifically exempts this rule from
being used against a defendant determined to be incompetent to be
sentenced, which is now provided in the new rule 3.214. It is
replaced by the new rule 3.214.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to
3.219.
See notes following rule 3.210 for the text of this note.
RULE 3.214 cases. INCOMPETENCY TO PROCEED TO SENTENCING:
DISPOSITION
If a defendant is determined to be incompetent to proceed after
being found guilty of an offense or violation of probation or
community control or after voluntarily entering a plea to an offense
or violation of probation or community control, but prior to
sentencing, the court shall postpone the pronouncement of
sentence and proceed pursuant to rule 3.210 (et seq.) and the
following rules.
Committee Note
1988 Amendment. Title. This new rule replaces the former
rule 3.740. It was felt to be more appropriately addressed in this
sequence. The former rule 3.214 is now renumbered 3.215. The
former rule 3.740 used the inappropriate phrase “(p)rocedures
when insanity is alleged as cause for not pronouncing sentence.”
Insanity is an affirmative defense to a criminal charge. The more
correct term is “incompetence to proceed to sentencing.”
(a) This new provision reiterates amendments to rule 3.210
and provides that sentencing shall be postponed for a defendant
incompetent to proceed with disposition of a criminal matter—to
include a finding of guilt at trial, after entry of a voluntary plea, or
after a violation of probation or community control proceeding.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.215 cases. EFFECT OF ADJUDICATION OF INCOMPETENCY
TO PROCEED: PSYCHOTROPIC MEDICATION
(a) Former Jeopardy. If the defendant is declared
incompetent to stand trial during trial and afterwards declared
competent to stand trial, the defendant’s other uncompleted trial
shall not constitute former jeopardy.
(b) Limited Application of Incompetency Adjudication.
An adjudication of incompetency to proceed shall not operate as an
adjudication of incompetency to consent to medical treatment or for
any other purpose unless such other adjudication is specifically set
forth in the order.
(c) Psychotropic Medication. A defendant who, because of
psychotropic medication, is able to understand the proceedings and
to assist in the defense shall not automatically be deemed
incompetent to proceed simply because the defendant’s satisfactory
mental condition is dependent on such medication, nor shall the
defendant be prohibited from proceeding solely because the
defendant is being administered medication under medical
supervision for a mental or emotional condition.
(1) Psychotropic medication is any drug or compound
affecting the mind, behavior, intellectual functions, perception,
moods, or emotion and includes anti-psychotic, anti-depressant,
anti-manic, and anti-anxiety drugs.
(2) If the defendant proceeds to trial with the aid of
medication for a mental or emotional condition, on the motion of
defense counsel, the jury shall, at the beginning of the trial and in
the charge to the jury, be given explanatory instructions regarding
such medication.
Committee Notes
1980 Adoption. (c) As to psychotropic medications, see
section 916.12(2), Florida Statutes (1980).
(d) This subdivision is intended to provide specific
exceptions to the speedy trial rule.
1988 Amendment. Title. This rule was formerly rule 3.214.
The amendments to this rule, including the title, are designed
to reflect amendments to rules 3.210 and 3.211.
(d) Matters contained in former subsection (d) are covered by
the provisions of rule 3.191. That subsection has therefore been
deleted.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.216 cases. INSANITY AT TIME OF OFFENSE OR PROBATION
OR COMMUNITY CONTROL VIOLATION: NOTICE
AND APPOINTMENT OF EXPERTS
(a) Expert to Aid Defense Counsel. When in any criminal
case a defendant is adjudged to be indigent or partially indigent,
and is not represented by the public defender or regional counsel,
and counsel has reason to believe that the defendant may be
incompetent to proceed or that the defendant may have been insane
at the time of the offense or probation or community control
violation, counsel may so inform the court who shall appoint 1
expert to examine the defendant in order to assist counsel in the
preparation of the defense. The expert shall report only to the
attorney for the defendant and matters related to the expert shall be
deemed to fall under the lawyer-client privilege.
(b) Notice of Intent to Rely on Insanity Defense. When in
any criminal case it shall be the intention of the defendant to rely
on the defense of insanity either at trial or probation or community
control violation hearing, no evidence offered by the defendant for
the purpose of establishing that defense shall be admitted in the
case unless advance notice in writing of the defense shall have been
given by the defendant as hereinafter provided.
(c) Time for Filing Notice. The defendant shall give notice
of intent to rely on the defense of insanity no later than 15 days
after the arraignment or the filing of a written plea of not guilty in
the case when the defense of insanity is to be relied on at trial or no
later than 15 days after being brought before the appropriate court
to answer to the allegations in a violation of probation or
community control proceeding. If counsel for the defendant shall
have reasonable grounds to believe that the defendant may be
incompetent to proceed, the notice shall be given at the same time
that the motion for examination into the defendant’s competence is
filed. The notice shall contain a statement of particulars showing
the nature of the insanity the defendant expects to prove and the
names and addresses of the witnesses by whom the defendant
expects to show insanity, insofar as is possible.
(d) Court-Ordered Evaluations. On the filing of such notice
and on motion of the state, the court shall order the defendant to be
examined by the state’s mental health expert(s) as to the sanity or
insanity of the defendant at the time of the commission of the
alleged offense or probation or community control violation.
Attorneys for the state and defendant may be present at the
examination.
(e) Time for Filing Notice of Intent to Rely on a Mental
Health Defense Other than Insanity. The defendant shall give
notice of intent to rely on any mental health defense other than
insanity as soon as a good faith determination has been made to
utilize the defense but in no event later than 30 days prior to trial.
The notice shall contain a statement of particulars showing the
nature of the defense the defendant expects to prove and the names
and addresses of the witnesses by whom the defendant expects to
prove the defense, insofar as possible. If expert testimony will be
presented, the notice shall indicate whether the expert has
examined the defendant.
(f) Court-Ordered Experts for Other Mental Health
Defenses. If the notice to rely on any mental health defense other
than insanity indicates the defendant will rely on the testimony of
an expert who has examined the defendant, the court shall upon
motion of the state order the defendant be examined by one
qualified expert for the state as to the mental health defense raised
by the defendant. Upon a showing of good cause, the court may
order additional examinations upon motion by the state or the
defendant. Attorneys for the state and defendant may be present at
the examination. When the defendant relies on the testimony of an
expert who has not examined the defendant, the state shall not be
entitled to a compulsory examination of the defendant.
(g) Waiver of Time to File. On good cause shown for the
omission of the notice of intent to rely on the defense of insanity, or
any mental health defense, the court may in its discretion grant the
defendant 10 days to comply with the notice requirement. If leave is
granted and the defendant files the notice, the defendant is deemed
unavailable to proceed. If the trial has already commenced, the
court, only on motion of the defendant, may declare a mistrial in
order to permit the defendant to raise the defense of insanity
pursuant to this rule. Any motion for mistrial shall constitute a
waiver of the defendant’s right to any claim of former jeopardy
arising from the uncompleted trial.
(h) Evaluating Defendant after Pretrial Release. If the
defendant has been released on bail or other release conditions, the
court may order the defendant to appear at a designated place for
evaluation at a specific time as a condition of the release provision.
If the court determines that the defendant will not submit to the
evaluation provided for herein or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the evaluation is completed. A
motion made for evaluation under this subdivision shall not
otherwise affect the defendant’s right to pretrial release.
(i) Evidence. Any experts appointed by the court may be
summoned to testify at the trial, and shall be deemed court
witnesses whether called by the court or by either party. Other
evidence regarding the defendant’s insanity or mental condition
may be introduced by either party. At trial, in its instructions to the
jury, the court shall include an instruction on the consequences of
a verdict of not guilty by reason of insanity.
Committee Notes
1980 Adoption.
(a) This subdivision is based on Pouncy v. State, 353 So. 2d
640 (Fla. 3d DCA 1977), and provides that an expert may be
provided for an indigent defendant. The appointment of the expert
will in this way allow the public defender or court-appointed
attorney to screen possible incompetency or insanity cases and give
a basis for determining whether issues of incompetency or insanity
ought to be raised before the court; it will also permit the defense
attorney to specify in greater detail in the statement of particulars
the nature of the insanity that attorney expects to prove, if any, and
the basis for the raising of that defense.
(b) Essentially the same as in prior rules; provides that
written notice must be given in advance by the defendant.
(c) Since counsel for indigents often are not appointed until
arraignment and since it is sometimes difficult for a defendant to
make a determination on whether the defense of insanity should be
raised prior to arraignment, a 15-day post-arraignment period is
provided for the filing of the notice. The defendant must raise
incompetency at the same time as insanity, if at all possible. With
the appointment of the expert to assist, the defendant should be
able to raise both issues at the same time if grounds for both exist.
The remainder of the rule, providing for the statement to be
included in the notice, is essentially the same as that in prior rules.
(d) The appointment of experts provision is designed to
track, insofar as possible, the provisions for appointment of experts
contained in the rules relating to incompetency to stand trial and in
the Florida Statutes relating to appointment of expert witnesses.
Insofar as possible, the single examination should include
incompetency, involuntary commitment issues where there are
reasonable grounds for their consideration, and issues of insanity
at time of the offense. Judicial economy would mandate such a
single examination where possible.
(g) In order to obtain more standardized reports, specific
items relating to the examination are required of the examining
experts. See note to rule 3.211(a).
(h) Essentially the substance of prior rule 3.210(e)(4) and (5),
with some changes. Both prior provisions are combined into a
single provision; speedy trial time limits are no longer set forth, but
waiver of double jeopardy is mandated.
(i) Same as rule 3.210(b)(3), relating to incompetency to
stand trial. See commentary to that rule.
(j) A restatement of former rule 3.210(e)(7). The provision
that experts called by the court shall be deemed court witnesses is
new. The former provision relating to free access to the defendant is
eliminated as unnecessary.
As to appointment of experts, see section 912.11, Florida
Statutes.
1988 Amendment. The amendments to this rule, including
the title, provide for the affirmative defense of insanity in violation
of probation or community control proceedings as well as at trial.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
1996 Amendment. Subdivisions (e) and (f) were added to
conform to State v. Hickson, 630 So. 2d 172 (Fla. 1993). These
amendments are not intended to expand existing case law.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.217 cases. JUDGMENT OF NOT GUILTY BY REASON OF
INSANITY; DISPOSITION OF DEFENDANT
(a) Verdict of Not Guilty by Reason of Insanity. When a
person is found by the jury or the court not guilty of the offense or
is found not to be in violation of probation or community control by
reason of insanity, the jury or judge, in giving the verdict or finding
of not guilty judgment, shall state that it was given for that reason.
(b) Treatment, Commitment, or Discharge after
Acquittal. When a person is found not guilty of the offense or is
found not to be in violation of probation or community control by
reason of insanity, if the court then determines that the defendant
presently meets the criteria set forth by law, the court shall commit
the defendant to the Department of Children and Families or shall
order outpatient treatment at any other appropriate facility or
service, or shall discharge the defendant. Any order committing the
defendant or requiring outpatient treatment or other outpatient
service shall contain:
(1) findings of fact relating to the issue of commitment
or other court-ordered treatment;
(2) copies of any reports of experts filed with the court;
and
(3) any other psychiatric, psychological, or social work
report submitted to the court relative to the mental state of the
defendant.
Committee Notes
1980 Adoption.
(a) Same substance as in prior rule.
(b) The criteria for commitment are set forth in chapter 394,
Florida Statutes. This rule incorporates those statutory criteria by
reference and then restates the other alternatives available to the
judge under former rule 3.210.
See section 912.18, Florida Statutes, for criteria.
(1) This subdivision is equivalent to rule 3.212(b)(2); see
commentary to that rule.
1988 Amendment. The amendments to this rule provide for
evaluation of a defendant found not guilty by reason of insanity in
violation of probation or community control proceedings as well as
at trial. The amendments further reflect 1985 amendments to
chapter 916, Florida Statutes.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.218 cases. COMMITMENT OF A DEFENDANT FOUND NOT
GUILTY BY REASON OF INSANITY
(a) Commitment; 6-Month Report. The Department of
Children and Families shall admit to an appropriate facility a
defendant found not guilty by reason of insanity under rule 3.217
and found to meet the criteria for commitment for hospitalization
and treatment and may retain and treat the defendant. No later
than 6 months from the date of admission, the administrator of the
facility shall file with the court a report, and provide copies to all
parties, which shall address the issues of further commitment of
the defendant. If at any time during the 6-month period, or during
any period of extended hospitalization that may be ordered under
this rule, the administrator of the facility shall determine that the
defendant no longer meets the criteria for commitment, the
administrator shall notify the court by such a report and provide
copies to all parties. The procedure for determinations of the
confidential status of reports is governed by Rule of General
Practice and Judicial Administration 2.420.
(b) Right to Hearing if Committed upon Acquittal. The
court shall hold a hearing within 30 days of the receipt of any
report from the administrator of the facility on the issues raised
thereby, and the defendant shall have a right to be present at the
hearing. If the court determines that the defendant continues to
meet the criteria for continued commitment or treatment, the court
shall order further commitment or treatment for a period not to
exceed 1 year. The same procedure shall be repeated before the
expiration of each additional 1-year period in which the defendant
is retained by the facility.
(c) Evidence to Determine Continuing Insanity. Before
any hearing held under this rule, the court may, on its own motion,
and shall, on motion of counsel for the state or defendant, appoint
no fewer than 2 nor more than 3 experts to examine the defendant
relative to the criteria for continued commitment or placement of
the defendant and shall specify the date by which the experts shall
report to the court on these issues and provide copies to all parties.
Committee Notes
1980 Adoption. This provision provides for hospitalization of
a defendant found not guilty by reason of insanity and is meant to
track similar provisions in the rules relating to competency to stand
trial and the complementary statutes. It provides for an initial 6-
month period of commitment with successive 1-year periods; it
provides for reports to the court and for the appointment of experts
to examine the defendant when such hearings are necessary. The
underlying rationale of this rule is to make standard, insofar as
possible, the commitment process, whether it be for incompetency
to stand trial or following a judgment of not guilty by reason of
insanity.
For complementary statute providing for hospitalization of
defendant adjudicated not guilty by reason of insanity, see section
912.15, Florida Statutes.
1988 Amendment. The amendments to this rule, including
the title, provide for commitment of defendants found not guilty by
reason of insanity in violation of probation or community control
proceedings, as well as those so found at trial. The amendments
further reflect 1985 amendments to chapter 916, Florida Statutes.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.219 cases. CONDITIONAL RELEASE
(a) Release Plan. The committing court may order a
conditional release of any defendant who has been committed
according to a finding of incompetency to proceed or an
adjudication of not guilty by reason of insanity based on an
approved plan for providing appropriate outpatient care and
treatment. When the administrator shall determine outpatient
treatment of the defendant to be appropriate, the administrator may
file with the court, and provide copies to all parties, a written plan
for outpatient treatment, including recommendations from qualified
professionals. The plan may be submitted by the defendant. The
plan shall include:
(1) special provisions for residential care, adequate
supervision of the defendant, or both;
(2) provisions for outpatient mental health services;
and
(3) if appropriate, recommendations for auxiliary
services such as vocational training, educational services, or special
medical care.
In its order of conditional release, the court shall specify the
conditions of release based on the release plan and shall direct the
appropriate agencies or persons to submit periodic reports to the
court regarding the defendant’s compliance with the conditions of
the release, and progress in treatment, and provide copies to all
parties. The procedure for determinations of the confidential status
of reports is governed by Rule of General Practice and Judicial
Administration 2.420.
(b) Defendant’s Failure to Comply. If it appears at any time
that the defendant has failed to comply with the conditions of
release, or that the defendant’s condition has deteriorated to the
point that inpatient care is required, or that the release conditions
should be modified, the court, after hearing, may modify the release
conditions or, if the court finds the defendant meets the statutory
criteria for commitment, may order that the defendant be
recommitted to the Department of Children and Families for further
treatment.
(c) Discharge. If at any time it is determined after hearing
that the defendant no longer requires court-supervised follow-up
care, the court shall terminate its jurisdiction in the cause and
discharge the defendant.
Committee Notes
1980 Adoption. This rule implements the prior statutory law
permitting conditional release.
For complementary statute providing for conditional release,
see section 916.17, Florida Statutes.
1988 Amendment. The amendments to this rule are designed
to reflect amendments to rules 3.210, 3.211, and 3.218 as well as
1985 amendments to chapter 916, Florida Statutes.
(b) This provision has been amended to permit the court to
recommit a conditionally released defendant to HRS under the
provisions of chapter 916 only if the court makes a finding that the
defendant currently meets the statutory commitment criteria found
in section 916.13(1), Florida Statutes.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
VI. DISCOVERY
RULE 3.220 cases. DISCOVERY
(a) Notice of Discovery. After the filing of the charging
document, a defendant may elect to participate in the discovery
process provided by these rules, including the taking of discovery
depositions, by filing with the court and serving on the prosecuting
attorney a “Notice of Discovery” which binds both the prosecution
and defendant to all discovery procedures contained in these rules.
Participation by a defendant in the discovery process, including the
taking of any deposition by a defendant or the filing of a public
records request under chapter 119, Florida Statutes, for law
enforcement records relating to the defendant’s pending
prosecution, which are nonexempt as a result of a codefendant’s
participation in discovery, is an election to participate in discovery
and triggers a reciprocal discovery obligation for the defendant. If
any defendant knowingly or purposely shares in discovery obtained
by a codefendant, the defendant is deemed to have elected to
participate in discovery.
(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of
Discovery, the prosecutor must serve a written Discovery Exhibit
which must disclose to the defendant and permit the defendant to
inspect, copy, test, and photograph the following information and
material within the state’s possession or control, except that any
property or material that portrays sexual performance by a child,
constitutes generated child pornography, or constitutes child
pornography may not be copied, photographed, duplicated, or
otherwise reproduced so long as the state attorney makes the
property or material reasonably available to the defendant or the
defendant’s attorney:
(A) a list of the names and addresses of all
persons known to the prosecutor to have information that may be
relevant to any offense charged or any defense thereto, or to any
similar fact evidence to be presented at trial under section
90.404(2), Florida Statutes. The names and addresses of persons
listed must be clearly designated in the following categories:
(i) Category A. These witnesses must
include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi
witnesses, (3) witnesses who were present when a recorded or
unrecorded statement was taken from or made by a defendant or
codefendant, which must be separately identified within this
category, (4) investigating officers, (5) witnesses known by the
prosecutor to have any material information that tends to negate
the guilt of the defendant as to any offense charged, (6) child
hearsay witnesses, (7) expert witnesses who have not provided a
written report and a curriculum vitae or who are going to testify,
and (8) informant witnesses, whether in custody, who offer
testimony concerning the statements of a defendant about the
issues for which the defendant is being tried.
(ii) Category B. All witnesses not listed in
either Category A or Category C.
(iii) Category C. All witnesses who performed
only ministerial functions or whom the prosecutor does not intend
to call at trial and whose involvement with and knowledge of the
case is fully set out in a police report or other statement furnished
to the defense;
(B) the statement of any person whose name is
furnished in compliance with the preceding subdivision. The term
“statement” as used herein includes a written statement made by
the person and signed or otherwise adopted or approved by the
person and also includes any statement of any kind or manner
made by the person and written or recorded or summarized in any
writing or recording. The term “statement” is specifically intended to
include all police and investigative reports of any kind prepared for
or in connection with the case, but must not include the notes from
which those reports are compiled;
(C) any written or recorded statements and the
substance of any oral statements made by the defendant, including
a copy of any statements contained in police reports or report
summaries, together with the name and address of each witness to
the statements;
(D) any written or recorded statements and the
substance of any oral statements made by a codefendant;
(E) those portions of recorded grand jury minutes
that contain testimony of the defendant;
(F) any tangible papers or objects that were
obtained from or belonged to the defendant;
(G) whether the state has any material or
information that has been provided by a confidential informant;
(H) whether there has been any electronic
surveillance, including wiretapping, of the premises of the
defendant or of conversations to which the defendant was a party
and any documents relating thereto;
(I) whether there has been any search or seizure
and any documents relating thereto;
(J) reports or statements of experts made in
connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments, or
comparisons;
(K) any tangible papers or objects that the
prosecuting attorney intends to use in the hearing or trial and that
were not obtained from or that did not belong to the defendant;
(L) any tangible paper, objects, or substances in
the possession of law enforcement that could be tested for DNA;
and
(M) whether the state has any material or
information that has been provided by an informant witness,
including:
(i) the substance of any statement allegedly
made by the defendant about which the informant witness may
testify;
(ii) a summary of the criminal history record
of the informant witness;
(iii) the time and place under which the
defendant’s alleged statement was made;
(iv) whether the informant witness has
received, or expects to receive, anything in exchange for his or her
testimony;
(v) the informant witness’s prior history of
cooperation, in return for any benefit, as known to the prosecutor.
(2) If the court determines, in camera, that any police
or investigative report contains irrelevant, sensitive information or
information interrelated with other crimes or criminal activities and
the disclosure of the contents of the police report may seriously
impair law enforcement or jeopardize the investigation of those
other crimes or activities, the court may prohibit or partially restrict
the disclosure.
(3) The court may prohibit the state from introducing
into evidence any of the foregoing material not disclosed, so as to
secure and maintain fairness in the just determination of the cause.
(4) As soon as practicable after the filing of the
charging document the prosecutor must disclose to the defendant
any material information within the state’s possession or control
that tends to negate the guilt of the defendant as to any offense
charged, regardless of whether the defendant has incurred
reciprocal discovery obligations.
(c) Disclosure to Prosecution.
(1) After the filing of the charging document and
subject to constitutional limitations, the court may require a
defendant to:
(A) appear in a lineup;
(B) speak for identification by witnesses to an
offense;
(C) be fingerprinted;
(D) pose for photographs not involving re-
enactment of a scene;
(E) try on articles of clothing;
(F) permit the taking of specimens of material
under the defendant’s fingernails;
(G) permit the taking of samples of the defendant’s
blood, hair, and other materials of the defendant’s body that
involves no unreasonable intrusion thereof;
(H) provide specimens of the defendant’s
handwriting; and
(I) submit to a reasonable physical or medical
inspection of the defendant’s body.
(2) If the personal appearance of a defendant is
required for the foregoing purposes, reasonable notice of the time
and location of the appearance must be given by the prosecuting
attorney to the defendant and his or her counsel. Provisions may be
made for appearances for such purposes in an order admitting a
defendant to bail or providing for pretrial release.
(d) Defendant’s Obligation.
(1) If a defendant elects to participate in discovery,
either through filing the appropriate notice or by participating in
any discovery process, including the taking of a discovery
deposition, the following disclosures must be made:
(A) Within 15 days after receipt by the defendant
of the Discovery Exhibit furnished by the prosecutor under
subdivision (b)(1)(A) of this rule, the defendant must furnish to the
prosecutor a written list of the names and addresses of all
witnesses whom the defendant expects to call as witnesses at the
trial or hearing. When the prosecutor subpoenas a witness whose
name has been furnished by the defendant, except for trial
subpoenas, the rules applicable to the taking of depositions apply.
(B) Within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant must serve a written Discovery
Exhibit which must disclose to and permit the prosecutor to
inspect, copy, test, and photograph the following information and
material that is in the defendant’s possession or control:
(i) the statement of any person listed in
subdivision (d)(1)(A), other than that of the defendant;
(ii) reports or statements of experts, that the
defendant intends to use as a witness at a trial or hearing, made in
connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments, or
comparisons; and
(iii) any tangible papers or objects that the
defendant intends to use in the hearing or trial.
(2) The prosecutor and the defendant must perform
their obligations under this rule in a manner mutually agreeable or
as ordered by the court.
(3) The filing of a motion for protective order by the
prosecutor will automatically stay the times provided for in this
subdivision. If a protective order is granted, the defendant may,
within 2 days thereafter, or at any time before the prosecutor
furnishes the information or material that is the subject of the
motion for protective order, withdraw the defendant’s notice of
discovery and not be required to furnish reciprocal discovery.
(e) Restricting Disclosure. The court on its own initiative or
on motion of counsel must deny or partially restrict disclosures
authorized by this rule if it finds there is a substantial risk to any
person of physical harm, intimidation, bribery, economic reprisals,
or unnecessary annoyance or embarrassment resulting from the
disclosure, that outweighs any usefulness of the disclosure to either
party.
(f) Additional Discovery. On a showing of materiality, the
court may require such other discovery to the parties as justice may
require.
(g) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure must not be required of
legal research or of records, correspondence, reports, or
memoranda to the extent that they contain the opinions, theories,
or conclusions of the prosecuting or defense attorney or members of
their legal staffs.
(2) Informants. Disclosure of a confidential informant
must not be required unless the confidential informant is to be
produced at a hearing or trial or a failure to disclose the informant’s
identity will infringe the constitutional rights of the defendant.
(h) Discovery Depositions.
(1) Generally. At any time after the filing of the charging
document any party may take the deposition on oral examination of
any person authorized by this rule. A party taking a deposition
must give reasonable written notice to each other party and must
make a good faith effort to coordinate the date, time, and location of
the deposition to accommodate the schedules of other parties and
the witness to be deposed. The notice must state the time and the
location where the deposition is to be taken, the name of each
person to be examined, and a certificate of counsel that a good faith
effort was made to coordinate the deposition schedule. Unless a
provision of this rule conflicts with the Florida Rules of Civil
Procedure, the procedure for taking the deposition, including the
scope of the examination, and the issuance of a subpoena for
deposition by an attorney of record in the action, is the same as
that provided in the Florida Rules of Civil Procedure and section
48.031, Florida Statutes. 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
3.220(e) and (l), on motion of a party, the deponent, or on its own
motion, for good cause shown. Any deposition taken under this rule
may be used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a witness. The trial
court or the clerk of the court may, upon application by a pro se
litigant or the attorney for any party, issue subpoenas for the
persons whose depositions are to be taken. In any case, including
multiple defendants or consolidated cases, no person may be
deposed more than once except by consent of the parties or by
order of the court issued on good cause shown. A witness who
refuses to obey a duly served subpoena may be adjudged in
contempt of the court from which the subpoena issued.
(A) The defendant may, without leave of court,
take the deposition of any witness listed by the prosecutor as a
Category A witness or listed by a co-defendant as a witness to be
called at a joint trial or hearing. After receipt by the defendant of
the Discovery Exhibit, the defendant may, without leave of court,
take the deposition of any unlisted witness who may have
information relevant to the offense charged. The prosecutor may,
without leave of court, take the deposition of any witness listed by
the defendant to be called at a trial or hearing.
(B) No party may take the deposition of a witness
listed by the prosecutor as a Category B witness except on leave of
court with good cause shown. In determining whether to allow a
deposition, the court should consider the consequences to the
defendant, the complexities of the issues involved, the complexity of
the testimony of the witness (e.g., experts), and the other
opportunities available to the defendant to discover the information
sought by deposition.
(C) A witness listed by the prosecutor as a
Category C witness is not subject to deposition unless the court
determines that the witness should be listed in another category.
(D) No deposition may be taken in a case in which
the defendant is charged only with a misdemeanor or a criminal
traffic offense when all other discovery provided by this rule has
been complied with unless good cause can be shown to the trial
court. In determining whether to allow a deposition, the court
should consider the consequences to the defendant, the complexity
of the issues involved, the complexity of the witness’s testimony
(e.g., experts), and the other opportunities available to the
defendant to discover the information sought by deposition.
However, this prohibition against the taking of depositions does not
apply if following the furnishing of discovery by the defendant the
state then takes the statement of a listed defense witness under
section 27.04, Florida Statutes.
(2) Transcripts. No transcript of a deposition for which
the state may be obligated to expend funds may be ordered by a
party unless it is in compliance with general law.
(3) Location of Deposition. Unless the deposition will be
taken by communication technology, depositions of witnesses
residing:
(A) in the county in which the trial is to take place
must be taken in the building in which the trial will be held, such
other location as is agreed on by the parties, or a location
designated by the court; or
(B) outside the county in which the trial is to take
place must be taken in a court reporter’s office in the county or
state in which the witness resides, such other location as is agreed
on by the parties, or a location designated by the court.
(4) Visual Recording and Photographs. 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 on
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.
(5) Depositions of Law Enforcement Officers. Subject to
the general provisions of subdivision (h)(1), law enforcement officers
must appear for deposition, without subpoena, on written notice of
taking deposition delivered at the physical address of the law
enforcement agency or department, or the e-mail or other address
designated by the law enforcement agency or department, 7 days
before the date of the deposition. For the purposes of this
subdivision, if a law enforcement agency agrees to accept written
notice by e-mail, each law enforcement agency must designate e-
mail addresses for agency liaisons that will accept electronic service
of deposition notices on behalf of the agency’s employees. Any
physical address or e-mail address designated by a law enforcement
agency or department for service of notice of deposition must be
provided by the prosecuting attorney with discovery. Law
enforcement officers who fail to appear for deposition after being
served notice as required by the rule may be adjudged in contempt
of court.
(6) Witness Coordinating Office/Notice of Taking
Deposition. If a witness coordinating office has been established in
the jurisdiction under applicable Florida Statutes, the deposition of
any witness should be coordinated through that office. The witness
coordinating office should attempt to schedule the depositions of a
witness at a time and location convenient for the witness and
acceptable to the parties.
(7) Defendant’s Physical Presence. A defendant may not
be physically present at a deposition except on stipulation of the
parties or as provided by this rule. The court may order the physical
presence of the defendant on a showing of good cause. The court
may consider:
(A) the need for the physical presence of the
defendant to obtain effective discovery;
(B) the intimidating effect of the defendant’s
presence on the witness, if any;
(C) any cost or inconvenience which may result;
and
(D) any alternative communication technology
available.
(8) Telephonic Statements. On stipulation of the parties
and the consent of the witness, the statement of any witness may
be taken by telephone in lieu of the deposition of the witness. In
such case, the witness need not be under oath. The statement,
however, must be recorded and may be used for impeachment at
trial as a prior inconsistent statement under the Florida Evidence
Code.
(9) On motion of any party, parent, guardian, attorney,
guardian ad litem, or other advocate for a victim or witness under
the age of 18, a person who has an intellectual disability, or a
sexual offense victim or witness, or on the court’s own motion, the
court can limit interviewing or the conducting of depositions in the
presence of the defendant. The court must consider any fact the
court deems relevant, not limited to age, nature of the offense,
relationship to the defendant, and degree of emotional trauma that
could result as a consequence of the defendant’s presence.
(10) Deposition of a victim of a sexual offense who is
under the age of 16. A party seeking to take a deposition under this
subdivision must file a written motion with the court. Within 30
days of the filing of the written motion unless agreed upon by the
parties or for good cause shown, the court must conduct a hearing
to determine whether to order the deposition to be conducted. In
determining whether to order the deposition to be conducted, the
court must consider:
(A) the mental and physical age and maturity of
the victim;
(B) the nature and duration of the offense;
(C) the relationship of the victim to the defendant;
(D) the complexity of the issues involved;
(E) whether the evidence sought is reasonably
available by other means, including whether the victim was the
subject of a forensic interview related to the sexual offense; and
(F) any other factors the court deems relevant to
ensure the protection of the victim and the integrity of the judicial
process.
(11) Deposition of a victim of a sexual offense who is
under the age of 12. There is a presumption that the taking of a
deposition of a victim of a sexual offense who is under the age of 12
is inappropriate if the state has not filed a notice of intent to seek
the death penalty and a forensic interview of the sexual offense
victim is available to the defendant. In making that determination,
the court may consider the factors set forth in subdivision (h)(9) of
this rule. A party seeking to take a deposition under this
subdivision must file a written motion with the court. Within 30
days of the filing of the written motion unless agreed upon by the
parties or for good cause shown, the court must conduct a hearing
to determine whether to order the deposition to be conducted.
(12) Limitations or conditions on manner and scope of
deposition. If the court orders the deposition to be conducted
pursuant to subdivision (h)(10) or (11), the court may order
limitations or specific conditions such as:
(A) requiring the defendant to submit proposed
deposition questions to the court for approval prior to commencing
the deposition;
(B) setting the time and place of the deposition;
(C) permitting or prohibiting any person from
attending the victim’s deposition;
(D) limiting the duration of the deposition; or
(E) any other conditions the court finds just and
appropriate.
(13) Court order. The court must enter a written order
finding whether the taking of a deposition under subdivision (h)(10)
or (11) is authorized, and the written order must specify any
limitations to the manner or scope of the taking of the victim’s
deposition.
(i) Investigations Not to Be Impeded. Except as is
otherwise provided as to matters not subject to disclosure or
restricted by protective orders, neither the counsel for the parties
nor other prosecution or defense personnel may advise persons
having relevant material or information, except the defendant, to
refrain from discussing the case with opposing counsel or showing
opposing counsel any relevant material, nor may they otherwise
impede opposing counsel’s investigation of the case.
(j) Continuing Duty to Disclose. If, subsequent to
compliance with the rules, a party discovers additional witnesses or
material that the party would have been under a duty to disclose or
produce at the time of the previous compliance, the party must
promptly disclose or produce the witnesses or material in the same
manner as required under these rules for initial discovery. This
duty includes any additional recorded or unrecorded statements of
any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this
rule that materially alter a written or recorded statement previously
provided under these rules.
(k) Court May Alter Times. The court may alter the times
for compliance with any discovery under these rules on good cause
shown.
(l) Protective Orders.
(1) Motion to Restrict Disclosure of Matters. On a
showing of good cause, the court must at any time order that
specified disclosures be restricted, deferred, or exempted from
discovery, that certain matters not be inquired into, that the scope
of the deposition be limited to certain matters, that a deposition be
sealed and after being sealed be opened only by order of the court,
or make such other order as is appropriate to protect a witness
from harassment, unnecessary inconvenience, or invasion of
privacy, including prohibiting the taking of a deposition. All
material and information to which a party is entitled, however,
must be disclosed in time to permit the party to make beneficial use
of it.
(2) Motion to Terminate or Limit Examination. At any
time during the taking of a deposition, on motion of a party or of the
deponent, and on a showing that the examination is being
conducted in bad faith or in such manner as to unreasonably
annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the circuit court where the
deposition is being taken may:
(A) terminate the deposition;
(B) limit the scope and manner of the taking of the
deposition;
(C) limit the time of the deposition;
(D) continue the deposition to a later time;
(E) order the deposition to be taken in open court;
and
(F) impose any sanction authorized by this rule.
If the order terminates the deposition, it may be resumed
thereafter only on the order of the court in which the action is
pending. On demand of any party or deponent, the taking of the
deposition must be suspended for the time necessary to make a
motion for an order.
(m) In Camera and Ex Parte Proceedings.
(1) Any person may move for an order denying or
regulating disclosure of sensitive matters. The court may consider
the matters contained in the motion in camera.
(2) On request, the court must allow the defendant to
make an ex parte showing of good cause for taking the deposition of
a Category B witness.
(3) A record must be made of proceedings authorized
under this subdivision. If the court enters an order granting relief
after an in camera inspection or ex parte showing, the entire record
of the proceeding must be sealed and preserved and be made
available to the appellate court in the event of an appeal.
(n) Sanctions.
(1) If, at any time during the course of the proceedings,
it is brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or with an order issued
under an applicable discovery rule, the court may order the party to
comply with the discovery or inspection of materials not previously
disclosed or produced, grant a continuance, grant a mistrial,
prohibit the party from calling a witness not disclosed or
introducing in evidence the material not disclosed, or enter such
other order as it deems just under the circumstances.
(2) Willful violation by counsel or a party not
represented by counsel of an applicable discovery rule, or an order
issued under an applicable discovery rules, subjects counsel or the
unrepresented party to appropriate sanctions by the court. The
sanctions may include, but are not limited to, contempt proceedings
against the attorney or unrepresented party, as well as the
assessment of costs incurred by the opposing party, when
appropriate.
(3) Every request for discovery or response or objection,
including a notice of deposition made by a party represented by an
attorney, must be signed by at least 1 attorney of record, as defined
by Florida Rule of General Practice and Judicial Administration
2.505, in the attorney’s individual name, whose address must be
stated. A party who is not represented by an attorney must sign the
request, response, or objection and list his or her address. The
signature of the attorney constitutes a certification that the
document complies with Florida Rule of General Practice and
Judicial Administration 2.515. The signature of the attorney or
party constitutes a certification that the signer has read the
request, response, or objection and that to the best of the signer’s
knowledge, information, or belief formed after a reasonable inquiry
it is:
(A) consistent with these rules and warranted by
existing law or a good faith argument for the extension,
modification, or reversal of existing law;
(B) not interposed for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in
the cost of litigation; and
(C) not unreasonable or unduly burdensome or
expensive, given the needs of the case and the importance of the
issues at stake in the litigation.
If a request, response, or objection is not signed, it must be
stricken unless it is signed promptly after the omission is called to
the attention of the party making the request, response, or
objection, and a party may not be obligated to take any action with
respect to it until it is signed.
If a certification is made in violation of this rule, the court, on
motion or on its own initiative, must impose on the person who
made the certification, the firm or agency with which the person is
affiliated, the party on whose behalf the request, response, or
objection is made, or any or all of the above an appropriate
sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a
reasonable attorney’s fee.
(o) Pretrial Conference.
(1) The trial court may hold 1 or more pretrial
conferences to consider such matters as will promote a fair and
expeditious trial. The defendant must be present at any pretrial
conference, unless the defendant’s presence is waived in writing or
on the record by the defendant or by the defendant’s counsel with
the defendant’s consent.
(2) The court may set, and on the request of any party
must set, a discovery schedule, including a discovery cut-off date,
at the pretrial conference.
Committee Notes
1968 Adoption.
(a)(1) This is substantially the same as section 925.05, Florida
Statutes.
(a)(2) This is new and allows a defendant rights which he did
not have, but must be considered in light of subdivision (c).
(a)(3) This is a slight enlargement upon the present practice;
however, from a practical standpoint, it is not an enlargement, but
merely a codification of section 925.05, Florida Statutes, with
respect to the defendant’s testimony before a grand jury.
(b) This is a restatement of section 925.04, Florida Statutes,
except for the change of the word “may” to “shall.”
(c) This is new and affords discovery to the state within the
trial judge’s discretion by allowing the trial judge to make discovery
under (a)(2) and (b) conditioned upon the defendant giving the state
some information if the defendant has it. This affords the state
some area of discovery which it did not previously have with respect
to (b). A question was raised concerning the effect of (a)(2) on FBI
reports and other reports which are submitted to a prosecutor as
“confidential” but it was agreed that the interests of justice would
be better served by allowing this rule and that, after the appropriate
governmental authorities are made aware of the fact that their
reports may be subject to compulsory disclosure, no harm to the
state will be done.
(d) and (e) This gives the defendant optional procedures. (d) is
simply a codification of section 906.29, Florida Statutes, except for
the addition of “addresses.” The defendant is allowed this procedure
in any event. (e) affords the defendant the additional practice of
obtaining all of the state’s witnesses, as distinguished from merely
those on whose evidence the information, or indictment, is based,
but only if the defendant is willing to give the state a list of all
defense witnesses, which must be done to take advantage of this
rule. The confidential informant who is to be used as a witness
must be disclosed; but it was expressly viewed that this should not
otherwise overrule present case law on the subject of disclosure of
confidential informants, either where disclosure is required or not
required.
(f) This is new and is a compromise between the philosophy
that the defendant should be allowed unlimited discovery
depositions and the philosophy that the defendant should not be
allowed any discovery depositions at all. The purpose of the rule is
to afford the defendant relief from situations when witnesses refuse
to “cooperate” by making pretrial disclosures to the defense. It was
determined to be necessary that the written signed statement be a
criterion because this is the only way witnesses can be impeached
by prior contradictory statements. The word “cooperate” was
intentionally left in the rule, although the word is a loose one, so
that it can be given a liberal interpretation, i.e., a witness may claim
to be available and yet never actually submit to an interview. Some
express the view that the defendant is not being afforded adequate
protection because the cooperating witness will not have been
under oath, but the subcommittee felt that the only alternative
would be to make unlimited discovery depositions available to the
defendant which was a view not approved by a majority of the
subcommittee. Each minority is expressed by the following
alternative proposals:
Alternative Proposal (1): When a person is charged with an
offense, at any time after the filing of the indictment, information, or
affidavit upon which the defendant is to be tried, such person may
take the deposition of any person by deposition upon oral
examination for the purpose of discovery. The attendance of
witnesses may be compelled by the use of subpoenas as provided by
law. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes. The
scope of examination and the manner and method of taking such
deposition shall be as provided in the Florida Rules of Civil
Procedure and the deposition may be used for the purpose of
contradicting or impeaching the testimony of a deponent as a
witness.
Alternative Proposal (2): If a defendant signs and files a written
waiver of his or her privilege against self-incrimination and submits
to interrogation under oath by the prosecuting attorney, then the
defendant shall be entitled to compulsory process for any or all
witnesses to enable the defendant to interrogate them under oath,
before trial, for discovery purposes.
A view was expressed that some limitation should be placed on
the state’s rights under sections 27.04 and 32.20, Florida Statutes,
which allow the prosecutor to take all depositions unilaterally at
any time. It was agreed by all members of the subcommittee that
this right should not be curtailed until some specific time after the
filing of an indictment, information, or affidavit, because
circumstances sometimes require the filing of the charge and a
studied marshalling of evidence thereafter. Criticism of the present
practice lies in the fact that any time up to and during the course of
the trial the prosecutor can subpoena any person to the privacy of
the prosecutor’s office without notice to the defense and there take
a statement of such person under oath. The subcommittee was
divided, however, on the method of altering this situation and the
end result was that this subcommittee itself should not undertake
to change the existing practice, but should make the Supreme
Court aware of this apparent imbalance.
(g) This is new and is required in order to make effective the
preceding rules.
(h) This is new and, although it encompasses relief for both
the state and the defense, its primary purpose is to afford relief in
situations when witnesses may be intimidated and a prosecuting
attorney’s heavy docket might not allow compliance with discovery
within the time limitations set forth in the rules. The words,
“sufficient showing” were intentionally included in order to permit
the trial judge to have discretion in granting the protective relief. It
would be impossible to specify all possible grounds which can be
the basis of a protective order. This verbiage also permits a possible
abuse by a prosecution-minded trial judge, but the subcommittee
felt that the appellate court would remedy any such abuse in the
course of making appellate decisions.
(i) This is new and, although it will entail additional expense
to counties, it was determined that it was necessary in order to
comply with the recent trend of federal decisions which hold that
due process is violated when a person who has the money with
which to resist criminal prosecution gains an advantage over the
person who is not so endowed. Actually, there is serious doubt that
the intent of this subdivision can be accomplished by a rule of
procedure; a statute is needed. It is recognized that such a statute
may be unpopular with the legislature and not enacted. But, if this
subdivision has not given effect there is a likelihood that a
constitutional infirmity (equal protection of the law) will be found
and either the entire rule with all subdivisions will be held void or
confusion in application will result.
(j) This provision is necessary since the prosecutor is
required to assume many responsibilities under the various
subdivisions under the rule. There are no prosecuting attorneys,
either elected or regularly assigned, in justice of the peace courts.
County judge’s courts, as distinguished from county courts, do not
have elected prosecutors. Prosecuting attorneys in such courts are
employed by county commissions and may be handicapped in
meeting the requirements of the rule due to the irregularity and
uncertainty of such employment. This subdivision is inserted as a
method of achieving as much uniformity as possible in all of the
courts of Florida having jurisdictions to try criminal cases.
1972 Amendment. The committee studied the ABA Standards
for Criminal Justice relating to discovery and procedure before trial.
Some of the standards are incorporated in the committee’s
proposal, others are not. Generally, the standards are divided into 5
parts:
Part I deals with policy and philosophy and, while the
committee approves the substance of Part I, it was determined that
specific rules setting out this policy and philosophy should not be
proposed.
Part II provides for automatic disclosures (avoiding judicial
labor) by the prosecutor to the defense of almost everything within
the prosecutor’s knowledge, except for work product and the
identity of confidential informants. The committee adopted much of
Part II, but felt that the disclosure should not be automatic in every
case; the disclosure should be made only after request or demand
and within certain time limitations. The ABA Standards do not
recommend reciprocity of discovery, but the committee deemed that
a large degree of reciprocity is in order and made appropriate
recommendations.
Part III of the ABA Standards recommends some disclosure by
the defense (not reciprocal) to which the state was not previously
entitled. The committee adopted Part III and enlarged upon it.
Part IV of the Standards sets forth methods of regulation of
discovery by the court. Under the Standards the discovery
mentioned in Parts II and III would have been automatic and
without the necessity of court orders or court intervention. Part III
provides for procedures of protection of the parties and was
generally incorporated in the recommendations of the committee.
Part V of the ABA Standards deals with omnibus hearings and
pretrial conferences. The committee rejected part of the Standards
dealing with omnibus hearings because it felt that it was
superfluous under Florida procedure. The Florida committee
determined that a trial court may, at its discretion, schedule a
hearing for the purposes enumerated in the ABA Omnibus Hearing
and that a rule authorizing it is not necessary. Some of the
provisions of the ABA Omnibus Hearing were rejected by the Florida
committee, i.e., stipulations as to issues, waivers by defendant, etc.
A modified form of pretrial conference was provided in the proposals
by the Florida committee.
(a)(1)(i) Same as ABA Standard 2.1(a)(i) and substance of
Standard 2.1(e). Formerly Florida Rule of Criminal Procedure
3.220(e) authorized exchange of witness lists. When considered with
proposal 3.220(a)(3), it is seen that the proposal represents no
significant change.
(ii) This rule is a modification of Standard 2.1(a)(ii) and is
new in Florida, although some such statements might have been
discoverable under rule 3.220(f). Definition of “statement” is derived
from 18 U.S.C. § 3500.
Requiring law enforcement officers to include irrelevant or
sensitive material in their disclosures to the defense would not
serve justice. Many investigations overlap and information
developed as a byproduct of one investigation may form the basis
and starting point for a new and entirely separate one. Also, the
disclosure of any information obtained from computerized records
of the Florida Crime Information Center and the National Crime
Information Center should be subject to the regulations prescribing
the confidentiality of such information so as to safeguard the right
of the innocent to privacy.
(iii) Same as Standard 2.1(a)(ii) relating to statements of
accused; words “known to the prosecutor, together with the name
and address of each witness to the statement” added and is new in
Florida.
(iv) From Standard 2.1(a)(ii). New in Florida.
(v) From Standard 2.1(a)(iii) except for addition of words,
“that have been recorded” which were inserted to avoid any
inference that the proposed rule makes recording of grand jury
testimony mandatory. This discovery was formerly available under
rule 3.220(a)(3).
(vi) From Standard 2.1(a)(v). Words, “books, papers,
documents, photographs” were condensed to “papers or objects”
without intending to change their meaning. This was previously
available under rule 3.220(b).
(vii) From Standard 2.1(b)(i) except word “confidential” was
added to clarify meaning. This is new in this form.
(viii) From Standard 2.1(b)(iii) and is new in Florida in this
form. Previously this was disclosed upon motion and order.
(ix) From Standard 2.3(a), but also requiring production of
“documents relating thereto” such as search warrants and
affidavits. Previously this was disclosed upon motion and order.
(x) From Standard 2.1(a)(iv). Previously available under rule
3.220(a)(2). Defendant must reciprocate under proposed rule
3.220(b)(4).
(xi) Same committee note as (b) under this subdivision.
(2) From Standard 2.1(c) except omission of words “or would
tend to reduce his punishment therefore” which should be included
in sentencing.
(3) Based upon Standard 2.2(a) and (b) except Standards
required prosecutor to furnish voluntarily and without demand
while this proposal requires defendant to make demand and
permits prosecutor 15 days in which to respond.
(4) From Standards 2.5(b) and 4.4. Substance of this
proposal previously available under rule 3.220(h).
(5) From Standard 2.5. New in Florida.
(b)(1) From Standard 3.1(a). New in Florida.
(2) From Standard 3.1(b). New in Florida.
(3) Standards did not recommend that defendant furnish
prosecution with reciprocal witness list; however, formerly, rule
3.220(e) did make such provision. The committee recommended
continuation of reciprocity.
(4) Standards did not recommend reciprocity of discovery.
Previously, Florida rules required some reciprocity. The committee
recommended continuation of former reciprocity and addition of
exchanging witness’ statement other than defendants’.
(c) From Standard 2.6. New in Florida, but generally
recognized in decisions.
(d) Not recommended by Standards. Previously permitted
under rule 3.220(f) except for change limiting the place of taking the
deposition and eliminating requirement that witness refuse to give
voluntary signed statement.
(e) From Standard 4.1. New in Florida.
(f) Same as rule 3.220(g).
(g) From Standard 4.4 and rule 3.220(h).
(h) From Standard 4.4 and rule 3.220(h).
(i) From Standard 4.6. Not previously covered by rule in
Florida, but permitted by decisions.
(j)(1) From Standard 4.7(a). New in Florida except court
discretion permitted by rule 3.220(g).
(2) From Standard 4.7(b). New in Florida.
(k) Same as prior rule.
(l) Modified Standard 5.4. New in Florida.
1977 Amendment. The proposed change only removes the
comma which currently appears after (a)(1).
1980 Amendment. The intent of the rule change is to
guarantee that the accused will receive those portions of police
reports or report summaries which contain any written, recorded,
or oral statements made by the accused.
1986 Amendment. The showing of good cause under (d)(2) of
this rule may be presented ex parte or in camera to the court.
1989 Amendment. 3.220(a). The purpose of this change is to
ensure reciprocity of discovery. Under the previous rule, the
defendant could tailor discovery, demanding only certain items of
discovery with no requirement to reciprocate items other than those
demanded. A defendant could avoid reciprocal discovery by taking
depositions, thereby learning of witnesses through the deposition
process, and then deposing those witnesses without filing a demand
for discovery. With this change, once a defendant opts to use any
discovery device, the defendant is required to produce all items
designated under the discovery rule, whether or not the defendant
has specifically requested production of those items.
Former subdivision (c) is relettered (b). Under (b)(1) the
prosecutor’s obligation to furnish a witness list is conditioned upon
the defendant filing a “Notice of Discovery.”
Former subdivision (a)(1)(i) is renumbered (b)(1)(i) and, as
amended, limits the ability of the defense to take depositions of
those persons designated by the prosecutor as witnesses who
should not be deposed because of their tangential relationship to
the case. This does not preclude the defense attorney or a defense
investigator from interviewing any witness, including a police
witness, about the witness’s knowledge of the case.
This change is intended to meet a primary complaint of law
enforcement agencies that depositions are frequently taken of
persons who have no knowledge of the events leading to the charge,
but whose names are disclosed on the witness list. Examples of
these persons are transport officers, evidence technicians, etc.
In order to permit the defense to evaluate the potential
testimony of those individuals designated by the prosecutor, their
testimony must be fully set forth in some document, generally a
police report.
(a)(1)(ii) is renumbered (b)(1)(ii). This subdivision is amended to
require full production of all police incident and investigative
reports, of any kind, that are discoverable, provided there is no
independent reason for restricting their disclosure. The term
“statement” is intended to include summaries of statements of
witnesses made by investigating officers as well as statements
adopted by the witnesses themselves.
The protection against disclosure of sensitive information, or
information that otherwise should not be disclosed, formerly set
forth in (a)(1)(i), is retained, but transferred to subdivision (b)(1)(xii).
The prohibition sanction is not eliminated, but is transferred
to subdivision (b)(1)(xiii). “Shall” has been changed to “may” in order
to reflect the procedure for imposition of sanctions specified in
Richardson v. State, 246 So. 2d 771 (Fla. 1971).
The last phrase of renumbered subdivision (b)(2) is added to
emphasize that constitutionally required Brady material must be
produced regardless of the defendant’s election to participate in the
discovery process.
Former subdivision (b) is relettered (c).
Former subdivisions (b)(3) and (4) are now included in new
subdivision (d). An introductory phrase has been added to
subdivision (d). Subdivision (d) reflects the change in nomenclature
from a “Demand for Discovery” to the filing of a “Notice of
Discovery.”
As used in subdivision (d), the word “defendant” is intended to
refer to the party rather than to the person. Any obligations
incurred by the “defendant” are incurred by the defendant’s
attorney if the defendant is represented by counsel and by the
defendant personally if the defendant is not represented.
The right of the defendant to be present and to examine
witnesses, set forth in renumbered subdivision (d)(1), refers to the
right of the defense, as party to the action. The term refers to the
attorney for the defendant if the defendant is represented by
counsel. The right of the defendant to be physically present at the
deposition is controlled by new subdivision (h)(6).
Renumbered subdivision (d)(2), as amended, reflects the new
notice of discovery procedure. If the defendant elects to participate
in discovery, the defendant is obligated to furnish full reciprocal
disclosure.
Subdivision (e) was previously numbered (a)(4). This
subdivision has been modified to permit the remedy to be sought by
either prosecution or defense.
Subdivision (f) was previously numbered (a)(5) and has been
modified to permit the prosecutor, as well as the defense attorney,
to seek additional discovery.
Former subdivision (c) is relettered (g).
Former subdivision (d) is relettered (h). Renumbered
subdivision (h)(1) has been amended to reflect the restrictions on
deposing a witness designated by the prosecution under (b)(1)(i)
(designation of a witness performing ministerial duties only or one
who will not be called at trial).
(h)(1)(i) is added to provide that a deposition of a witness
designated by the prosecutor under (b)(1)(i) may be taken only upon
good cause shown by the defendant to the court.
(h)(1)(ii) is added to provide that abuses by attorneys of the
provisions of (b)(1)(i) are subject to stringent sanctions.
New subdivision (h)(1)(iii) abolishes depositions in
misdemeanor cases except when good cause is shown.
A portion of former subdivision (d)(1) is renumbered (h)(3).
This subdivision now permits the administrative judge or chief
judge, in addition to the trial judge, to designate the place for taking
the deposition.
New subdivision (h)(4) recognizes that children and some
adults are especially vulnerable to intimidation tactics. Although it
has been shown that such tactics are infrequent, they should not
be tolerated because of the traumatic effect on the witness. The
videotaping of the deposition will enable the trial judge to control
such tactics. Provision is also made to protect witnesses of fragile
emotional strength because of their vulnerability to intimidation
tactics.
New subdivision (h)(5) emphasizes the necessity for the
establishment, in each jurisdiction, of an effective witness
coordinating office. The Florida Legislature has authorized the
establishment of such office through section 43.35, Florida
Statutes. This subdivision is intended to make depositions of
witnesses and law enforcement officers as convenient as possible
for the witnesses and with minimal disruption of law enforcement
officers’ official duties.
New subdivision (h)(6) recognizes that one of the most frequent
complaints from child protection workers and from rape victim
counselors is that the presence of the defendant intimidates the
witnesses. The trauma to the victim surpasses the benefit to the
defense of having the defendant present at the deposition. Since
there is no right, other than that given by the rules of procedure, for
a defendant to attend a deposition, the Florida Supreme Court
Commission on Criminal Discovery believes that no such right
should exist in those cases. The “defense,” of course, as a party to
the action, has a right to be present through counsel at the
deposition. In this subdivision, the word “defendant” is meant to
refer to the person of the defendant, not to the defense as a party.
See comments to rules 3.220(d) and 3.220(d)(1).
Although defendants have no right to be present at depositions
and generally there is no legitimate reason for their presence, their
presence is appropriate in certain cases. An example is a complex
white collar fraud prosecution in which the defendant must explain
the meaning of technical documents or terms. Cases requiring the
defendant’s presence are the exception rather than the rule.
Accordingly, (h)(6)(i)–(ii) preclude the presence of defendants at
depositions unless agreed to by the parties or ordered by the court.
These subdivisions set forth factors that a court should take into
account in considering motions to allow a defendant’s presence.
New subdivision (h)(7) permits the defense to obtain needed
factual information from law enforcement officers by informal
telephone deposition. Recognizing that the formal deposition of a
law enforcement officer is often unnecessary, this procedure will
permit such discovery at a significant reduction of costs.
Former subdivisions (e), (f), and (g) are relettered (i), (j), and
(k), respectively.
Former subdivision (h) is relettered (l) and is modified to
emphasize the use of protective orders to protect witnesses from
harassment or intimidation and to provide for limiting the scope of
the deposition as to certain matters.
Former subdivision (i) is relettered (m).
Former subdivision (j) is relettered (n).
Renumbered (n)(2) is amended to provide that sanctions are
mandatory if the court finds willful abuse of discovery. Although the
amount of sanction is discretionary, some sanction must be
imposed.
(n)(3) is new and tracks the certification provisions of federal
procedure. The very fact of signing such a certification will make
counsel cognizant of the effect of that action.
Subdivision (k) is relettered (o).
Subdivision (l) is relettered (p).
1992 Amendment. The proposed amendments change the
references to “indictment or information” in subdivisions (b)(1),
(b)(2), (c)(1), and (h)(1) to “charging document.” This amendment is
proposed in conjunction with amendments to rule 3.125 to provide
that all individuals charged with a criminal violation would be
entitled to the same discovery regardless of the nature of the
charging document (i.e., indictment, information, or notice to
appear).
1996 Amendment. This is a substantial rewording of the rule
as it pertains to depositions and pretrial case management. The
amendment was in response to allegations of discovery abuse and a
call for a more cost conscious approach to discovery by the Florida
Supreme Court. In felony cases, the rule requires prosecutors to list
witnesses in categories A, B, and C. Category A witnesses are
subject to deposition as under the former rule. Category B
witnesses are subject to deposition only upon leave of court.
Category B witnesses include, but are not limited to, witnesses
whose only connection to the case is the fact that they are the
owners of property; transporting officers; booking officers; records
and evidence custodians; and experts who have filed a report and
curriculum vitae and who will not offer opinions subject to the Frye
test. Category C witnesses may not be deposed. The trial courts are
given more responsibility to regulate discovery by pretrial
conference and by determining which category B witnesses should
be deposed in a given case.
The rule was not amended for the purpose of prohibiting
discovery. Instead, the rule recognized that many circuits now have
“early resolution” or “rocket dockets” in which “open file discovery”
is used to resolve a substantial percentage of cases at or before
arraignment. The committee encourages that procedure. If a case
cannot be resolved early, the committee believes that resolution of
typical cases will occur after the depositions of the most essential
witnesses (category A) are taken. Cases which do not resolve after
the depositions of category A, may resolve if one or more category B
witnesses are deposed. If the case is still unresolved, it is probably
going to be a case that needs to be tried. In that event, judges may
determine which additional depositions, if any, are necessary for
pretrial preparation. A method for making that determination is
provided in the rule.
Additionally, trial judges may regulate the taking of
depositions in a number of ways to both facilitate resolution of a
case and protect a witness from unnecessary inconvenience or
harassment. There is a provision for setting a discovery schedule,
including a discovery cut-off date as is common in civil practice.
Also, a specific method is provided for application for protective
orders.
One feature of the new rule relates to the deposition of law
enforcement officers. Subpoenas are no longer required.
The rule has standardized the time for serving papers relating
to discovery at fifteen days.
Discovery in misdemeanor cases has not been changed.
(b)(1)(A)(i) An investigating officer is an officer who has
directed the collection of evidence, interviewed material witnesses,
or who was assigned as the case investigator.
(h)(1) The prosecutor and defense counsel are encouraged to be
present for the depositions of essential witnesses, and judges are
encouraged to provide calendar time for the taking of depositions so
that counsel for all parties can attend. This will 1) diminish the
potential for the abuse of witnesses, 2) place the parties in a
position to timely and effectively avail themselves of the remedies
and sanctions established in this rule, 3) promote an expeditious
and timely resolution of the cause, and 4) diminish the need to
order transcripts of the deposition, thereby reducing costs.
1998 Amendment. This rule governs only the location of
depositions. The procedure for procuring out-of-state witnesses for
depositions is governed by statute.
2018 Amendment. The amendments to subdivision (j) are a
clarification of the rule based on Scipio v. State, 928 So. 2d 1138
(Fla. 2006), and Washington v. State, 151 So. 3d 544 (Fla. 1st DCA
2014).
Court Commentary
1996 Amendment. The designation of a witness who will
present similar fact evidence will be dependent upon the witness’s
relationship to the similar crime, wrong, or act about which
testimony will be given rather than the witness’s relationship to the
crime with which the defendant is currently charged.
1999/2000 Amendment. This rule does not affect requests
for nonexempt law enforcement records as provided in chapter 119,
Florida Statutes, other than those that are nonexempt as a result of
a codefendant’s participation in discovery. See Henderson v. State,
745 So. 2d 319 (Fla. Feb. 18, 1999).
2014 Amendment. The amendment to subdivision
(b)(1)(A)(i)(8) is not intended to limit in any manner whatsoever the
discovery obligations under the other provisions of the rule. With
respect to subdivision (b)(l)(M)(iv), the Florida Innocence
Commission recognized the impossibility of listing in the body of the
rule every possible permutation expressing a benefit by the state to
the informant witness. Although the term “anything” is not defined
in the rule, the following are examples of benefits that may be
considered by the trial court in determining whether the state has
complied with its discovery obligations. The term “anything”
includes, but is not limited to, any deal, promise, inducement, pay,
leniency, immunity, personal advantage, vindication, or other
benefit that the prosecution, or any person acting on behalf of the
prosecution, has knowingly made or may make in the future.
VII. SUBSTITUTION OF JUDGE
RULE 3.231 cases. SUBSTITUTION OF JUDGE
If by reason of death or disability the judge before whom a trial
has commenced is unable to proceed with the trial, or posttrial
proceedings, another judge, certifying that he or she has become
familiar with the case, may proceed with the disposition of the case,
except in death penalty sentencing proceedings. In death penalty
sentencing proceedings, a successor judge who did not hear the
evidence during the penalty phase of the trial shall conduct a new
sentencing proceeding before a new jury.
Committee Notes
1972 Adoption. New. Follows ABA Standard 4.3, Trial by
Jury. Inserted to provide for substitution of trial judge in specified
instances.
VIII. CHANGE OF VENUE
RULE 3.240 cases. CHANGE OF VENUE
(a) Grounds for Motion. The state or the defendant may
move for a change of venue on the ground that a fair and impartial
trial cannot be had in the county where the case is pending for any
reason other than the interest and prejudice of the trial judge.
(b) Contents of Motion. Every motion for change of venue
shall be in writing and be accompanied by:
(1) affidavits of the movant and 2 or more other
persons setting forth facts on which the motion is based; and
(2) a certificate by the movant’s counsel that the
motion is made in good faith.
(c) Time for Filing. A motion for change of venue shall be
filed no less than 10 days before the time the case is called for trial
unless good cause is shown for failure to file within such time.
(d) Action on Motion. The court shall consider the affidavits
filed by all parties and receive evidence on every issue of fact
necessary to its decision. If the court grants the motion it shall
make an order removing the cause to the court having jurisdiction
to try such offense in some other convenient county where a fair
and impartial trial can be had.
(e) Defendant in Custody. If the defendant is in custody,
the order shall direct that the defendant be forthwith delivered to
the custody of the sheriff of the county to which the cause is
removed.
(f) Transmittal of Documents. The clerk shall docket the
order of removal and transmit to the court to which the cause is
removed a certified copy of the order of removal and of the record
and proceedings and of the undertakings of the witnesses and the
accused.
(g) Attendance by Witnesses. When the cause is removed
to another court, witnesses who have been lawfully subpoenaed or
ordered to appear at the trial shall, on notice of such removal,
attend the court to which the cause is removed at the time specified
in the order of removal. A witness who refuses to obey a duly served
subpoena may be adjudged in contempt of court.
(h) Multiple Defendants. If there are several defendants and
an order is made removing the cause on the application of 1 or
more but not all of them, the other defendants shall be tried and all
proceedings had against them in the county in which the cause is
pending in all respects as if no order of removal had been made as
to any defendant.
(i) Action of Receiving Court. The court to which the
cause is removed shall proceed to trial and judgment therein as if
the cause had originated in that court. If it is necessary to have any
of the original pleadings or other documents before that court, the
court from which the cause is removed shall at any time on
application of the prosecuting attorney or the defendant order such
documents or pleadings to be transmitted by the clerk, a certified
copy thereof being retained.
(j) Prosecuting Attorney’s Obligation. The prosecuting
attorney of the court to which the cause is removed may amend the
information, or file a new information. Any such new information
shall be entitled in the county to which the cause is removed, but
the allegations as to the place of commission of the crime shall refer
to the county in which the crime was actually committed.
Committee Notes
1968 Adoption. (a) through (d) substantially same as sections
911.02 through 911.05, Florida Statutes. Language is simplified
and requirement pertaining to cases in criminal courts of record
that removal be to adjoining county is omitted. Modern
communications and distribution of television and press makes old
requirements impractical. Designation of county left to discretion of
the trial judge.
(e) through (i) same as corresponding sections 911.06 through
911.10, Florida Statutes.
1972 Amendment. Same as prior rule.
IX. THE TRIAL
RULE 3.250 cases. ACCUSED AS WITNESS
In all criminal prosecutions the accused may choose to be
sworn as a witness in the accused’s own behalf and shall in that
case be subject to examination as other witnesses, but no accused
person shall be compelled to give testimony against himself or
herself, nor shall any prosecuting attorney be permitted before the
jury or court to comment on the failure of the accused to testify in
his or her own behalf.
Committee Notes
1968 Adoption. Same as section 918.09, Florida Statutes.
1972 Amendment. Same as prior rule. The committee
considered The Florida Bar proposed amendment to this rule, but
makes no recommendation with respect thereto.
RULE 3.251 cases. RIGHT TO TRIAL BY JURY
In all criminal prosecutions the accused shall have the right to
a speedy and public trial by an impartial jury in the county where
the crime was committed.
Committee Notes
1972 Adoption. Substance of Art. I, §16, Florida Constitution.
RULE 3.260 cases. WAIVER OF JURY TRIAL
A defendant may in writing waive a jury trial with the consent
of the state.
Committee Notes
1968 Adoption. This is the same as Federal Rule of Criminal
Procedure 23(a). This changes existing law by providing for consent
of state.
1972 Amendment. Changes former rule by deleting “the
approval of the Court,” thus making trial by judge mandatory where
both parties agree. The committee felt that the matter of withdrawal
of a waiver was a matter within the inherent discretion of the trial
judge and that no rule is required.
RULE 3.270 cases. NUMBER OF JURORS
Twelve persons shall constitute a jury to try all capital cases,
and 6 persons shall constitute a jury to try all other criminal cases.
Committee Notes
1968 Adoption. Except for substituting the word “persons” for
“men,” the suggested rule is a transcription of section 913.10,
Florida Statutes. The standing committee on Florida court rules
raised the question as to whether this rule is procedural or
substantive and directed the subcommittee to call this fact to the
attention of the Supreme Court.
1972 Amendment. Same as prior rule.
RULE 3.280 cases. ALTERNATE JURORS
(a) Selection. The court may direct that jurors, in addition
to the regular panel, be called and impanelled to sit as alternate
jurors. Alternate jurors, in the order in which they are impanelled,
shall replace jurors who, prior to the time the jury retires to
consider its verdict, become unable or disqualified to perform their
duties. 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 the principal jurors. Except as hereinafter provided
regarding capital cases, an alternate juror who does not replace a
principal juror shall be discharged at the same time the jury retires
to consider its verdict.
(b) Responsibilities. At the conclusion of the guilt or
innocence phase of the trial, each alternate juror will be excused
with instructions to remain in the courtroom. The jury will then
retire to consider its verdict, and each alternate will be excused with
appropriate instructions that the alternate juror may have to return
for an additional hearing should the defendant be convicted of a
capital offense.
Committee Notes
1968 Adoption. Save for certain rewording, the suggested rule
is a transcription of section 913.10(2), Florida Statutes, except that
the provisions for the challenging of the alternate jurors has been
included more appropriately in the rule relating to challenges.
1972 Amendment. Same as prior rule.
1977 Amendment. This rule clarifies any ambiguities as to
what should be done with alternate jurors at the conclusion of a
capital case and whether they should be available for the penalty
phase of the trial. The change specifies that they will not be
instructed as to any further participation until the other jurors who
are deliberating on guilt or innocence are out of the courtroom, in
order not to influence the deliberating jurors or in any way convey
that the trial judge feels that a capital conviction is imminent.
RULE 3.281 cases. LIST OF PROSPECTIVE JURORS
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.
Committee Note
1972 Adoption. ABA Standard 2.2. The furnishing of such a
list should result in considerable time being saved at voir dire. Also
includes those questionnaires authorized by section 40.101, Florida
Statutes, although the statute itself provides for such disclosure.
RULE 3.290 cases. CHALLENGE TO 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.
Committee Notes
1968 Adoption. This is a transcription of section 913.01,
Florida Statutes.
1972 Amendment. Same as prior rule 3.300; order of rule
changed to improve chronology.
RULE 3.300 cases. VOIR DIRE EXAMINATION, OATH, AND
EXCUSING OF MEMBER
(a) Oath. The prospective jurors shall be sworn collectively
or individually, as the court may decide. The form of oath shall be
as follows:
“Do you 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.
(b) 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.
(c) 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.
Committee Notes
1968 Adoption.
(a) Save for the inclusion of the form of oath, the suggested
rule is a transcription of a part of section 913.02(1), Florida
Statutes. The form of oath paraphrases in pertinent part the oath
set out in section 913.11, Florida Statutes.
(b) The suggested rule is a transcription of the remainder of
section 913.02(1), Florida Statutes.
(c) Substantially same as section 913.02(2), Florida
Statutes.
1972 Amendment. (a) The language relating to competence to
serve as jurors deleted as superfluous, (c) amended for clarification
by inserting the clause “that such juror is not qualified to serve as a
trial juror” for the clause “that such juror is incompetent.”
1980 Amendment. As to examination by parties, this brings
rule 3.300(b) into conformity with Florida Rule of Civil Procedure
1.431(b). This rule also allows the court to examine each
prospective juror individually or collectively.
RULE 3.310 cases. 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.
Committee Notes
1968 Adoption. Save for the heading and for the inclusion of
the phrase, “for cause or peremptorily,” the suggested rule is a
transcription of the provisions of section 913.04, Florida Statutes.
1972 Amendment. Prior rule amended only by deleting some
language felt by the committee to be superfluous.
RULE 3.315 cases. EXERCISE OF CHALLENGES
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.
Committee Notes
1980 Adoption. With the exception of “Upon the motion of
any party,” the language is taken directly from Florida Rule of Civil
Procedure 1.431(c)(3). This rule had no counterpart in the criminal
rules.
RULE 3.320 cases. 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.
Committee Notes
1968 Adoption. Save for the heading and the insertion of the
word “the,” the suggested rule is a transcription of the pro\visions
of section 913.05, Florida Statutes. The phrase “for cause or
peremptorily” has been added.
1972 Amendment. Same as prior rule [but some terminology
has been changed].
RULE 3.330 cases. 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 under oath by either party. The court
may consider also any other evidence material to such challenge.
Committee Notes
1968 Adoption. The suggested rule is essentially a
transcription of sections 913.06 and 913.07, Florida Statutes,
except for the first and last sentences.
1972 Amendment. Same as prior rule [but some terminology
has been changed].
RULE 3.340 cases. EFFECT OF SUSTAINING CHALLENGE
If a challenge for cause of an individual juror is sustained, the
juror shall be discharged from the trial of the cause. If a peremptory
challenge to an individual juror is made, the juror shall be
discharged likewise from the trial of the cause.
Committee Notes
1968 Adoption. The first sentence of the suggested rule
except for the inclusion of the words “for cause” is a transcription of
section 913.09, Florida Statutes. The last sentence has been added.
1972 Amendment. Same as prior rule.
RULE 3.350 cases. PEREMPTORY CHALLENGES
(a) Number. Each party shall be allowed the following
number of peremptory challenges:
(1) Felonies Punishable by Death or Imprisonment for
Life. Ten, if the offense charged is punishable by death or
imprisonment for life.
(2) All Other Felonies. Six, if the offense charged is a
felony not punishable by death or imprisonment for life.
(3) Misdemeanors. Three, if the offense charged is a
misdemeanor.
(b) Codefendants. If 2 or more defendants are jointly tried,
each defendant shall be allowed the number of peremptory
challenges specified above, and in such case the state shall be
allowed as many challenges as are allowed to all of the defendants.
(c) Multiple Counts and Multiple Charging Documents. If
an indictment or information contains 2 or more counts or if 2 or
more indictments or informations are consolidated for trial, the
defendant shall be allowed the number of peremptory challenges
that would be permissible in a single case, but in the interest of
justice the judge may use judicial discretion in extenuating
circumstances to grant additional challenges to the accumulated
maximum based on the number of charges or cases included when
it appears that there is a possibility that the state or the defendant
may be prejudiced. The state and the defendant shall be allowed an
equal number of challenges.
(d) 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.
(e) Additional Challenges. The trial judge may exercise
discretion to allow additional peremptory challenges when
appropriate.
Committee Notes
1968 Adoption. The suggested rule is a transcription of
section 913.08, Florida Statutes, excluding subdivision (5), which is
lifted from section 913.10(2), Florida Statutes, and included since
the several provisions relate to peremptory challenges. The question
was raised regarding multiple counts or consolidation in their
relation to the number of challenges. It was decided not to imply
approval of multiple counts or consolidation. The standing
committee on Florida court rules raised the question as to whether
or not this rule is procedural or substantive and directed the
subcommittee to call this fact to the attention of the supreme court.
1972 Amendment. Substantially same as prior rule;
introductory language modernized.
1977 Amendment. This proposed rule amends rule 3.350(e)
to allow the defendant and the state an equal number of
peremptory challenges and to permit the court to grant additional
challenges to both parties where it appears that the state would
otherwise be prejudiced.
1992 Amendment. The amendment adds (e) that specifically
sets out the trial court’s discretion to allow peremptory challenges
in addition to those provided for in the rule. This amendment was
one of several proposed by the jury management committee that
provided for a reduction in the number of peremptory challenges
allowed by the rule. The majority of the criminal procedure rules
committee, while recommending against adoption of the remaining
proposals of the jury management committee, nevertheless felt it
would be appropriate to add (e) to clarify that the trial court’s
discretion is not limited to those situations set out in (c) of the rule
(i.e., multiple counts or informations or indictments consolidated
for trial).
RULE 3.360 cases. 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 defendant 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.
Committee Notes
1968 Adoption. The suggested rule is a transcription of
section 913.11, Florida Statutes.
1972 Adoption. Language of prior rule amended slightly to
modernize.
RULE 3.361 cases. WITNESS ATTENDANCE AND SUBPOENAS
(a) Subpoenas generally. Subpoenas for testimony before
the court and subpoenas for production of tangible evidence before
the court may be issued by the clerk of the court or by any attorney
of record in an action.
(b) Subpoena for testimony or production of tangible
evidence.
(1) A subpoena for testimony or production of tangible
evidence before the court 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 or produce the evidence at a
time and place specified in the subpoena.
(2) On oral request of an attorney, the clerk shall issue
a subpoena for testimony before the court or a subpoena for the
production of tangible evidence before the court, signed and sealed
but otherwise in blank, and the subpoena shall be filled in by the
attorney before service.
(c) For production of tangible evidence.
(1) If a subpoena commands a person or entity to
produce books, papers, documents, or tangible things, the person
or entity may move the court to quash or modify the subpoena
before the time specified in the subpoena for compliance.
(2) The court may (A) quash or modify the subpoena if
it is unreasonable and oppressive, or (B) require the person in
whose behalf the subpoena is issued to advance the reasonable cost
of producing the books, papers, documents, or tangible things.
(d) Attendance and enforcement. A witness subpoenaed
for testimony before the court or for production of tangible evidence
before the court shall appear and remain in attendance until
excused by the court or by all parties. A witness who refuses to
obey a subpoena or who departs without being excused properly
may be held in contempt.
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS
RULE 3.370 cases. REGULATION AND SEPARATION OF JURORS
(a) During Trial. After the jurors have been sworn they shall
hear the case as a body and, within the discretion of the trial judge,
may be sequestered. In capital cases, absent a showing of prejudice,
the trial court may order that between the guilt and penalty phases
of the trial the jurors may separate for a definite time to be fixed by
the court and then reconvene before the beginning of the penalty
phase.
(b) After Submission of Cause. Unless the jurors have been
kept together during the trial the court may, after the final
submission of the cause, order that the jurors may separate for a
definite time to be fixed by the court and then reconvene in the
courtroom before retiring for consideration of their verdict.
(c) During Deliberations. Absent exceptional circumstances
of emergency, accident, or other special necessity or unless
sequestration is waived by the state and the defendant, in all
capital cases in which the death penalty is sought by the state, once
the jurors have retired for consideration of their verdict, they must
be sequestered until such time as they have reached a verdict or
have otherwise been discharged by the court. In all other cases, the
court, in its discretion, either on the motion of counsel or on the
court’s initiative, may order that the jurors be permitted to
separate. If jurors are allowed to separate, the trial judge shall give
appropriate cautionary instructions.
Committee Notes
1968 Adoption. (a) Taken from section 919.01, Florida
Statutes.
(b) Taken from section 919.02, Florida Statutes.
1972 Amendment. (a) and (b) substantially the same as
former rule 3.380, except that some language has been modernized.
New provision permits nonsequestered jury to separate after
receiving case for consideration.
Former rule 3.370 has been deleted as its substance is now
contained in new Rules 3.150 through 3.153 on Joinder and
Severance.
RULE 3.371 cases. JUROR QUESTIONS OF WITNESSES
(a) Judicial Discretion. At the discretion of the presiding
trial judge, jurors may be allowed to submit questions of witnesses
during the trial.
(b) Procedure. The trial judge shall utilize the following
procedure if a juror indicates that the juror wishes to ask a
question:
(1) the questions must be submitted in writing;
(2) the trial judge shall review the question outside the
presence of the jury;
(3) counsel shall have an opportunity to object to the
question outside the presence of the jury;
(4) counsel shall be allowed to ask follow up questions;
and
(5) the jury must be advised that if a question
submitted by a juror is not allowed for any reason, the juror must
not discuss it with the other jurors and must not hold it against
either party.
RULE 3.372 cases. JUROR NOTEBOOKS
In its discretion, the court may authorize documents and
exhibits to be included in notebooks for use by the jurors during
trial to aid them in performing their duties.
RULE 3.380 cases. MOTION FOR JUDGMENT OF ACQUITTAL
(a) Timing. If, at the close of the evidence for the state or at
the close of all the evidence in the cause, the court is of the opinion
that the evidence is insufficient to warrant a conviction, it may, and
on the motion of the prosecuting attorney or the defendant shall,
enter a judgment of acquittal.
(b) Waiver. A motion for judgment of acquittal is not waived
by subsequent introduction of evidence on behalf of the defendant.
The motion must fully set forth the grounds on which it is based.
(c) Renewal. If the jury returns a verdict of guilty or is
discharged without having returned a verdict, the defendant’s
motion may be made or renewed within 10 days after the reception
of a verdict and the jury is discharged or such further time as the
court may allow.
Committee Notes
1968 Adoption. Substantially same as section 918.08, Florida
Statutes, except as follows:
(a) The existing statutory practice of granting directed
verdicts is abolished in favor of the federal practice of having the
judge enter a judgment of acquittal.
(b) The wording was changed to comply with the judgment of
acquittal theory. A majority of the committee felt that the substance
of the existing statute was all right, but a minority felt that the
language should be changed so that a defendant would waive an
erroneous denial of his motion for judgment of acquittal by
introducing evidence. This point was raised in Wiggins v. State, 101
So. 2d 833 (Fla. 1st DCA 1958), wherein the court said that this
statute is “ineptly worded.”
1972 Amendment. (a) and (b) same as prior rule 3.660,
transferred to better follow trial chronology. (c) provides time period
for renewal of motion and is new.
1980 Amendment. This brings rule 3.380(c) into conformity
with Florida Rule of Civil Procedure 1.480(b) as it relates to the
number of days (10) within which a party, either in a civil or
criminal case, may make or renew a motion for judgment of
acquittal. There appears to be no sound reason for the distinction
between the criminal rule (4 days or such greater time as the court
may allow, not to exceed 15 days) and the civil rule (10 days).
RULE 3.381 cases. FINAL ARGUMENTS
In all criminal trials, excluding the sentencing phase of a
capital case, at the close of all the evidence, the prosecuting
attorney shall be entitled to an initial closing argument and a
rebuttal closing argument before the jury or the court sitting
without a jury. Failure of the prosecuting attorney to make a closing
argument shall not deprive the defense of its right to make a closing
argument or the prosecuting attorney’s right to then make a
rebuttal argument. If the defendant does not present a closing
argument, the prosecuting attorney will not be permitted a rebuttal
argument.
RULE 3.390 cases. JURY INSTRUCTIONS
(a) Subject of Instructions. The Florida Standard Jury
Instructions in Criminal Cases appearing on The Florida Bar’s
website be used, as provided in Florida Rule of General Practice and
Judicial Administration 2.570, by the presiding judge in instructing
the jury in a criminal case. The presiding judge shall instruct the
jury only on the law of the case before or after the argument of
counsel and may provide appropriate instructions during the trial.
If the instructions are given prior to final argument, the presiding
judge shall give the jury final procedural instructions after final
arguments are concluded and prior to deliberations. Except in
capital cases, the judge shall not instruct the jury on the sentence
that may be imposed for the offense for which the accused is on
trial.
(b) Form of Instructions. The instruction to a jury shall be
orally delivered and shall also be in writing. All written instructions
shall also be filed in the cause.
(c) Written Request. At the close of the evidence, or at such
earlier time during the trial as the court reasonably directs, any
party may file written requests that the court instruct the jury on
the law as set forth in the requests. The court shall inform counsel
of its proposed action on the request and of the instructions that
will be given prior to their argument to the jury.
(d) Objections. No party may raise on appeal the giving or
failure to give an instruction unless the party objects thereto before
the jury retires to consider its verdict, stating distinctly the matter
to which the party objects and the grounds of the objection.
Opportunity shall be given to make the objection out of the
presence of the jury.
(e) Transcript and Review. When an objection is made to
the giving of or failure to give an instruction, no exception need be
made to the court’s ruling thereon in order to have the ruling
reviewed, and the grounds of objection and ruling thereon shall be
taken by the court reporter and, if the jury returns a verdict of
guilty, transcribed by the court reporter and filed in the cause.
Committee Notes
1972 Adoption. The committee adopted section 918.10,
Florida Statutes, with only minor modification as to terminology.
1988 Amendment. To assist the jury in understanding the
jury instructions.
1992 Amendment. Suggested change in wording to make (d)
clearer and easier to understand and also so it more closely follows
its federal counterpart, Federal Rule of Criminal Procedure 30.
RULE 3.391 cases. SELECTION OF FOREPERSON OF JURY
The court shall instruct the jurors to select one of their
number foreperson.
Committee Notes
1968 Adoption. This rule was inserted in order to clarify the
system of selecting jury foreman.
1972 Amendment. Same as former rule 3.390.
RULE 3.400 cases. MATERIALS TO THE JURY ROOM
(a) Discretionary Materials. The court may permit the jury,
upon retiring for deliberation, to take to the jury room:
(1) a copy of the charges against the defendant;
(2) forms of verdict approved by the court, after being
first submitted to counsel;
(3) all things received in evidence other than
depositions. If the thing received in evidence is a public record or a
private document which, in the opinion of the court, ought not to be
taken from the person having it in custody, a copy shall be taken or
sent instead of the original.
(b) Mandatory Materials. The court must provide the jury,
upon retiring for deliberation, with a written copy of the
instructions given to take to the jury room.
Committee Notes
1968 Adoption. (1) and (2) same as section 919.04(1) and (2),
Florida Statutes.
Section (3) was changed from the existing section 919.04(3) by
adding to the things which should not be taken with or sent to the
jury, written or recorded statements or confessions. It was felt by
the committee that the present practice of allowing such things to
be taken with the jury is unfair and emphasizes such statements or
confessions to the jury. Since they are always read to the jury they
should receive no additional emphasis than the testimony of any
witness from the stand. [Court did not approve this change; the
proposal was not adopted; and F.S.A. § 919.04(3) was transferred
unchanged to Rule 1.400(c).]
1972 Amendment. (a) permits a copy of the indictment or
information to be taken to the jury room. The committee deliberated
at length about this provision but finally approved same. (b), (c),
and (d) are same as former rule 3.400(a), (b), and (c) [but some
terminology has been changed].
RULE 3.410 cases. JURY REQUEST TO REVIEW EVIDENCE OR FOR
ADDITIONAL INSTRUCTIONS
(a) If, after they have retired to consider their verdict, jurors
request additional instructions or to have any testimony read or
played back to them they may be conducted into the courtroom by
the officer who has them in charge and the court may give them the
additional instructions or may order the testimony read or played
back to them. The instructions shall be given and the testimony
presented only after notice to the prosecuting attorney and to
counsel for the defendant. All testimony read or played back must
be done in open court in the presence of all parties. In its
discretion, the court may respond in writing to the inquiry without
having the jury brought before the court, provided the parties have
received the opportunity to place objections on the record and both
the inquiry and response are made part of the record.
(b) In a case in which the jury requests to have the
transcripts of trial testimony, the following procedures must be
followed:
(1) The trial judge must deny the requests for
transcripts.
(2) The trial judge must instruct jurors that they can,
however, request to have any testimony read or played back, which
may or may not be granted at the court’s discretion.
(3) In cases in which jurors make only a general
request for transcripts, as opposed to identifying any particular
witness’ testimony that they wish to review, the trial judge must
instruct jurors that, if they request a read or play back, they must
specify the particular trial testimony they wish to have read or
played back.
(c) If, after being properly instructed in accordance with
subdivision (b), the jurors request a read or play back of any trial
testimony, the trial judge must follow the procedures set forth in
subdivision (a).
Committee Notes
1968 Adoption. Same as section 919.05, Florida Statutes.
1972 Amendment. This is the same as former rule 3.410,
except that the former rule made it mandatory for the trial judge to
give additional instructions upon request. The committee feels that
this should be discretionary.
RULE 3.420 cases. RECALL OF JURY FOR ADDITIONAL
INSTRUCTIONS
The court may recall the jurors after they have retired to
consider their verdict to give them additional instructions or to
correct any erroneous instructions given them. The additional or
corrective instructions may be given only after notice to the
prosecuting attorney and to counsel for the defendant.
Committee Notes
1968 Adoption. Same as section 919.06, Florida Statutes.
1972 Amendment. Same as former rule.
RULE 3.430 cases. JURY NOT RECALLABLE TO HEAR ADDITIONAL
EVIDENCE
After the jurors have retired to consider their verdict the court
shall not recall the jurors to hear additional evidence.
Committee Notes
1968 Adoption. Same as section 919.07, Florida Statutes.
1972 Amendment. Same as prior rule.
XI. THE VERDICT
RULE 3.440 cases. RENDITION OF VERDICT; RECEPTION AND
RECORDING
When the jurors have agreed upon a verdict they shall be
conducted into the courtroom by the officer having them in charge.
The court shall ask the foreperson if an agreement has been
reached on a verdict. If the foreperson answers in the affirmative,
the judge shall call on the foreperson to deliver the verdict in
writing to the clerk. The court may then examine the verdict and
correct it as to matters of form with the unanimous consent of the
jurors. The clerk shall then read the verdict to the jurors and,
unless disagreement is expressed by one or more of them or the
jury is polled, the verdict shall be entered of record, and the jurors
discharged from the cause. No verdict may be rendered unless all of
the trial jurors concur in it.
Committee Notes
1968 Adoption. Same as section 919.09, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.450 cases. POLLING THE JURY
On the motion of either the state or the defendant or on its
own motion, the court shall cause the jurors to be asked severally if
the verdict rendered is their verdict. If a juror dissents, the court
must direct that the jury be sent back for further consideration. If
there is no dissent the verdict shall be entered of record and the
jurors discharged. However, no motion to poll the jury shall be
entertained after the jury is discharged or the verdict recorded.
Committee Notes
1968 Adoption. Same as section 919.10, Florida Statutes,
except elimination of polling jury after directed verdict in view of
innovation of “judgment of acquittal.”
1972 Amendment. Same as prior rule.
RULE 3.451 cases. JUDICIAL COMMENT ON VERDICT
While it is appropriate for the court to thank jurors at the
conclusion of a trial for their public service, the court shall not
praise or criticize their verdict.
Committee Notes
1972 Adoption. From ABA Standard 5.6, Trial by Jury.
RULE 3.470 cases. PROCEEDINGS ON SEALED VERDICT
The court may, with the consent of the prosecuting attorney
and the defendant, direct the jurors that if they should agree upon
a verdict during a temporary adjournment of the court, the
foreperson and each juror shall sign the same, and the verdict shall
be sealed in an envelope and delivered to the officer having charge
of the jury, after which the jury may separate until the court
recovenes. When the court authorizes the rendition of a sealed
verdict, it shall admonish the jurors not to make any disclosure, of
any kind, concerning it or to speak with other persons concerning
the case, until their verdict shall have been rendered in open court.
The officer shall deliver the sealed verdict to the clerk. When the
jurors have reassembled in open court, the envelope shall be
opened by the court or clerk, and must be received in the same
manner as unsealed verdicts.
Committee Notes
1968 Adoption of Rule 3.470. Same as section 919.12,
Florida Statutes.
1968 Adoption of Rule 3.480. Same as section 919.13,
Florida Statutes.
1972 Amendment. Former rule 3.480 has been deleted, its
substance now contained in rule 3.470. Substantially same as
former rules 3.470 and 3.480.
RULE 3.490 cases. DETERMINATION OF DEGREE OF OFFENSE
If the indictment or information charges an offense divided
into degrees, the jury may find the defendant guilty of the offense
charged or any lesser degree supported by the evidence. The judge
shall not instruct on any degree as to which there is no evidence.
Committee Notes
1968 Adoption. Same as 919.14.
1972 Amendment. Same as prior rule except references to
affidavit have been deleted.
RULE 3.500 cases. VERDICT OF GUILTY WHERE MORE THAN ONE
COUNT
If different offenses are charged in the indictment or
information on which the defendant is tried, the jurors shall, if they
convict the defendant, make it appear by their verdict on which
counts or of which offenses they find the defendant guilty.
Committee Notes
1968 Adoption. Same as section 919.15, Florida Statutes.
1972 Amendment. Amended to modernize the language of the
rule. Substantially the same as prior rule.
RULE 3.505 cases. INCONSISTENT VERDICTS
The state need not elect between inconsistent counts, but the
trial court shall submit to the jury verdict forms as to each count
with instructions applicable to returning its verdicts from the
inconsistent counts.
Committee Notes
1977 Adoption. Although there appears to be no rule or
statute relating to “election,” many Florida cases refer to the fact
that the trial court is required to make the state elect, before or
during trial, between inconsistent counts. Many times the
circumstances show conclusively that the accused is guilty of one
or the other of inconsistent offenses. Since the evidence is then
inconsistent with any reasonable hypothesis of innocence, the
circumstantial rule is satisfied and the evidence should support a
verdict of guilty as to either offense. In such a case the state should
not be required to elect. This new rule is intended to lead to
uniformity throughout the state on this issue and is more
consonant with rule 3.140(k)(5).
RULE 3.510 cases. DETERMINATION OF ATTEMPTS AND LESSER
INCLUDED OFFENSES
On an indictment or information on which the defendant is to
be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an
offense and is supported by the evidence. The judge shall not
instruct the jury if there is no evidence to support the attempt and
the only evidence proves a completed offense; or
(b) any offense that as a matter of law is a necessarily
included offense or a lesser included offense of the offense charged
in the indictment or information and is supported by the evidence.
The judge shall not instruct on any lesser included offense as to
which there is no evidence.
Committee Notes
1968 Adoption. Same as section 919.16, Florida Statutes.
The standing committee on Florida court rules raised the question
as to whether this rule is procedural or substantive and directed
the subcommittee to call this fact to the attention of the supreme
court.
1972 Amendment. Same as prior rule except that references
to affidavit have been deleted.
RULE 3.520 cases. VERDICT IN CASE OF JOINT DEFENDANTS
On the trial of 2 or more defendants jointly the jurors may
render a verdict as to any defendant in regard to whom the jurors
agree.
Committee Notes
1968 Adoption. Same as section 919.17, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.530 cases. RECONSIDERATION OF AMBIGUOUS OR
DEFECTIVE VERDICT
If a verdict is so defective that the court cannot determine from
it whether the jurors intended to acquit the defendant or to convict
the defendant of an offense for which judgment could be entered
under the indictment or information on which the defendant is
tried, or cannot determine from it on what count or counts the
jurors intended to acquit or convict the defendant, the court shall,
with proper instructions, direct the jurors to reconsider the verdict,
and the verdict shall not be received until it shall clearly appear
therefrom whether the jurors intended to convict or acquit the
defendant and on what count or counts they intended to acquit or
convict the defendant. If the jury persists in rendering a defective
verdict, the court shall declare a mistrial.
Committee Notes
1968 Adoption. Same as section 919.18, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.540 cases. WHEN VERDICT MAY BE RENDERED
A verdict may be rendered and additional or corrective
instructions given on any day, including Sunday or any legal
holiday.
Committee Notes
1968 Adoption. Same as section 919.19, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.550 cases. DISPOSITION OF DEFENDANT
If a verdict of guilty is rendered the defendant shall, if in
custody, be remanded. If the defendant is at large on bail, the
defendant may be taken into custody and committed to the proper
official or remain at liberty on the same or additional bail as the
court may direct.
Committee Notes
1968 Adoption. Same as section 919.20, Florida Statutes.
RULE 3.560 cases. DISCHARGE OF JURORS
After the jurors have retired to consider their verdict, the court
shall discharge them from the cause when:
(a) their verdict has been received;
(b) on the expiration of such time as the court deems proper,
if the court finds there is no reasonable probability that the jurors
can agree on a verdict; or
(c) a necessity exists for their discharge.
The court may in any event discharge the jurors from the cause if
the prosecuting attorney and the defendant consent to the
discharge.
Committee Notes
1968 Adoption. Same as section 919.21, Florida Statutes,
except (4) omitted.
1972 Amendment. Same as prior rule.
RULE 3.570 cases. IRREGULARITY IN RENDITION, RECEPTION,
AND RECORDING OF VERDICT
No irregularity in the rendition or reception of a verdict may be
raised unless it is raised before the jury is discharged. No
irregularity in the recording of a verdict shall affect its validity
unless the defendant was in fact prejudiced by the irregularity.
Committee Notes
1968 Adoption. Rule 3.570 is same as section 919.22, Florida
Statutes.
Section 919.23, Florida Statutes, was not included in the
rules. This deals with the recommendation of mercy and it was felt
that this was not procedural but substantive and not within the
scope of the rulemaking power of the supreme court.
1972 Amendment. Same as prior rule.
RULE 3.575 cases. MOTION TO INTERVIEW JUROR
A party who has reason to believe that the verdict may be
subject to legal challenge may move the court for an order
permitting an interview of a juror or jurors to so determine. The
motion shall be filed within 10 days after the 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 of any
juror to be interviewed and the reasons that the party has to believe
that the verdict may be subject to challenge. After notice and
hearing, the trial judge, upon a finding that the verdict may be
subject to challenge, shall enter an order permitting the interview,
and setting therein a time and a place for the interview of the juror
or jurors, which shall be conducted in the presence of the court and
the parties. If no reason is found to believe that the verdict may be
subject to challenge, the court shall enter its order denying
permission to interview.
Court Commentary
2004 Amendment. This rule does not abrogate Rule
Regulating The Florida Bar 4-3.5(d)(4), which allows an attorney to
interview a juror to determine whether the verdict may be subject to
legal challenge after filing a notice of intention to interview.
XII. POST-TRIAL MOTIONS
RULE 3.580 cases. COURT MAY GRANT NEW TRIAL
When a verdict has been rendered against the defendant or
the defendant has been found guilty by the court, the court on
motion of the defendant, or on its own motion, may grant a new
trial or arrest judgment.
Committee Notes
1968 Adoption. Same as section 920.01, Florida Statutes,
except arrest of judgment is added.
1972 Amendment. Same as prior rule.
RULE 3.590 cases. TIME FOR AND METHOD OF MAKING MOTIONS;
PROCEDURE; CUSTODY PENDING HEARING
(a) Time for Filing in Noncapital Cases. In cases in which
the state does not seek the death penalty, a motion for new trial or
a motion in arrest of judgment, or both, may be made, either orally
in open court or in writing and filed with the clerk’s office, within 10
days after the rendition of the verdict or the finding of the court. A
timely motion may be amended to state new grounds without leave
of court prior to expiration of the 10-day period and in the
discretion of the court at any other time before the motion is
determined.
(b) Time for Filing in Capital Cases Where the Death
Penalty Is an Issue. A motion for new trial or a motion in arrest of
judgment, or both, or for a new penalty phase hearing may be made
within 10 days after written final judgment of conviction and
sentence of life imprisonment or death is filed. The motion may
address grounds which arose in the guilt phase and the penalty
phase of the trial. Separate motions for the guilt phase and the
penalty phase may be filed. The motion or motions may be amended
without leave of court prior to the expiration of the 10-day period,
and in the discretion of the court, at any other time before the
motion is determined.
(c) Oral Motions. When the defendant has been found guilty
by a jury or by the court, the motion may be dictated into the
record, if a court reporter is present, and may be argued
immediately after the return of the verdict or the finding of the
court. The court may immediately rule on the motion.
(d) Written Motions. The motion may be in writing, filed
with the clerk; it shall state the grounds on which it is based. A
copy of a written motion shall be served on the prosecuting
attorney. When the court sets a time for the hearing thereon, the
clerk may notify counsel for the respective parties or the attorney
for the defendant may serve notice of hearing on the prosecuting
attorney.
(e) Custody Pending Motion. A defendant who is not
already at liberty on bail shall remain in custody and not be allowed
liberty on bail unless the court, on good cause shown if the offense
for which the defendant is convicted is bailable, permits the
defendant to be released on bail until the court disposes of the
motion. If the defendant is already at liberty on bail that is deemed
by the court to be good and sufficient, the court may permit the
defendant to continue at large on such bail until the motion for new
trial is heard and the court disposes of the motion.
Committee Notes
1968 Adoption. (a) The same as the first part of section
920.02(3), Florida Statutes, except that the statutory word “further”
is changed to “greater” in the rule and provision for motion in arrest
of judgment is added.
(b) Substantially the same as first part of section 920.02(2),
Florida Statutes. The rule omits the requirement that the defendant
be sentenced immediately on the denial of a motion for new trial
(the court might wish to place the defendant on probation or might
desire to call for a presentence investigation). The rule also omits
the statute’s requirement that an order of denial be dictated to the
court reporter, because the clerk is supposed to be taking minutes
at this stage.
NOTE: The provisions of the last part of section 920.02(2),
Florida Statutes, as to supersedeas and appeal are not incorporated
into this rule; such provisions are not germane to motions for new
trial or arrest of judgment.
(c) Substantially same as section 920.03, Florida Statutes.
(d) Substantially same as last part of section 920.02(3),
Florida Statutes, except that the last sentence of the rule is new.
NOTE: The provisions of section 920.02(4), Florida Statutes,
relating to supersedeas on appeal and the steps that are necessary
to obtain one, are not incorporated into a rule. The provisions of
section 920.02(4) do not belong in a group of rules dealing with
motions for new trial.
1972 Amendment. Substantially the same as prior rule.
1980 Amendment. This brings rule 3.590(a) into conformity
with Florida Rule of Civil Procedure 1.530(b) as it relates to the time
within which a motion for new trial or in arrest of judgment may be
filed. It also allows the defendant in a criminal case the opportunity
to amend the motion. The opportunity to amend already exists in a
civil case. No sound reason exists to justify the disparities in the
rules.
2006 Amendment. This amendment provides the time
limitations and procedures for moving for new trial, arrest of
judgment or a new penalty phase in capital cases in which the
death penalty is an issue. The motion may be made within ten days
after written final judgment of conviction and sentence of life
imprisonment or death is filed.
RULE 3.600 cases. GROUNDS FOR NEW TRIAL
(a) Grounds for Granting. The court shall grant a new trial
only if:
(1) the jurors decided the verdict by lot;
(2) the verdict is contrary to law or the weight of the
evidence; or
(3) new and material evidence, which, if introduced at
the trial would probably have changed the verdict or finding of the
court, and which the defendant could not with reasonable diligence
have discovered and produced at the trial, has been discovered.
(b) Grounds for Granting if Prejudice is Established. The
court shall grant a new trial if substantial rights of the defendant
were prejudiced because:
(1) the defendant was not present at any proceeding at
which the defendant’s presence is required by these rules;
(2) the jury received any evidence out of court, other
than that resulting from an authorized view of the premises;
(3) the jurors, after retiring to deliberate upon the
verdict, separated without leave of court;
(4) any juror was guilty of misconduct;
(5) the prosecuting attorney was guilty of misconduct;
(6) the court erred in the decision of any matter of law
arising during the course of the trial;
(7) the court erroneously instructed the jury on a
matter of law or refused to give a proper instruction requested by
the defendant; or
(8) for any other cause not due to the defendant’s own
fault, the defendant did not receive a fair and impartial trial.
(c) Evidence. When a motion for new trial calls for a
decision on any question of fact, the court may consider evidence
on the motion by affidavit or otherwise.
Committee Notes
1968 Adoption. Same as sections 920.04 and 920.05, Florida
Statutes, except that the last paragraph of section 920.05 is omitted
from the rule. The provision of the omitted paragraph that a new
trial shall be granted to a defendant who has not received a fair and
impartial trial through no personal fault is inserted in the rule as
subdivision (b)(8). The provision of the omitted paragraph of the
statute which requires a new trial when the sentence exceeds the
penalty provided by law is omitted from the rule because no
defendant is entitled to a new trial merely because an excessive
sentence has been pronounced. The standing committee on Florida
court rules questioned whether this rule is procedural or
substantive and directed the subcommittee to call this fact to the
attention of the supreme court.
(c) Same as second paragraph of section 920.07, Florida
Statutes.
1972 Amendment. Same as prior rule.
RULE 3.610 cases. MOTION FOR ARREST OF JUDGMENT;
GROUNDS
The court shall grant a motion in arrest of judgment only if:
(a) the indictment or information on which the defendant
was tried is so defective that it will not support a judgment of
conviction;
(b) the court is without jurisdiction of the cause;
(c) the verdict is so uncertain that it does not appear
therefrom that the jurors intended to convict the defendant of an
offense for which the defendant could be convicted under the
indictment or information under which the defendant was tried; or
(d) the defendant was convicted of an offense for which the
defendant could not be convicted under the indictment or
information.
Committee Notes
1968 Adoption. Note that (a)(1) of the rule revamps section
920.05(2)(a) through (d), Florida Statutes, in an effort to better take
into account the fact that an accusatorial writ that would not
withstand a motion to quash (dismiss) might well support a
judgment of conviction if no such motion is filed. See Sinclair v.
State, 46 So. 2d 453 (1950).
Note also that, where appropriate, the rule mentions “affidavit”
in addition to “indictment” and “information.” The standing
committee on Florida court rules questioned whether this rule is
procedural or substantive and directed the subcommittee to call
this fact to the attention of the supreme court.
1972 Amendment. Same as prior rule. References to trial
affidavit deleted.
RULE 3.620 cases. WHEN EVIDENCE SUSTAINS ONLY CONVICTION
OF LESSER OFFENSE
When the offense is divided into degrees or necessarily
includes lesser offenses and the court, on a motion for new trial, is
of the opinion that the evidence does not sustain the verdict but is
sufficient to sustain a finding of guilt of a lesser degree or of a lesser
offense necessarily included in the one charged, the court shall not
grant a new trial but shall find or adjudge the defendant guilty of
the lesser degree or lesser offense necessarily included in the
charge, unless a new trial is granted by reason of some other
prejudicial error.
Committee Notes
1968 Adoption. Substantially the same as section 920.06,
Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.630 cases. SENTENCE BEFORE OR AFTER MOTION FILED
The court in its discretion may sentence the defendant either
before or after the filing of a motion for new trial or arrest of
judgment.
Committee Notes
1968 Adoption. Same as first paragraph of section 920.07,
Florida Statutes. Provision for arrest of judgment is added.
1972 Amendment. Same as prior rule.
RULE 3.640 cases. EFFECT OF GRANTING NEW TRIAL
When a new trial is granted, the new trial shall proceed in all
respects as if no former trial had occurred except that when an
offense is divided into degrees or the charge includes a lesser
offense, and the defendant has been found guilty of a lesser degree
or lesser included offense, the defendant cannot thereafter be
prosecuted for a higher degree of the same offense or for a higher
offense than that of which the defendant was convicted.
Committee Notes
1968 Adoption. Based on section 920.09, Florida Statutes.
The second paragraph of the existing statute allows the testimony of
an absent witness, given at a former trial, to be used only if the
witness is absent from the state or dead. This has been enlarged to
include absent witnesses who are physically incapacitated to attend
court or who have become mentally incapacitated to testify since
the former trial.
1972 Committee Note. Same as prior rule.
XIII. JUDGMENT
RULE 3.650 cases. JUDGMENT DEFINED
The term “judgment” means the adjudication by the court that
the defendant is guilty or not guilty.
Committee Notes
1968 Adoption. Substantially the same as section 921.01,
Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.670 cases. RENDITION OF JUDGMENT
(a) If the defendant is found not guilty, a judgment of not
guilty must be rendered in open court and in writing, signed by a
judge, filed, and recorded.
(b) If the defendant is found guilty, a judgment of guilty
must be rendered in open court and in writing, signed by the judge,
filed, and recorded. However, where allowed by law, the judge may
withhold an adjudication of guilt. In the case of a felony, the judge
may withhold an adjudication of guilty only if the judge places the
defendant on probation.
(c) When a judge renders a final judgment of conviction,
withholds adjudication of guilt after a verdict of guilty, imposes a
sentence, grants probation, or revokes probation, the judge must
forthwith inform the defendant concerning the rights of appeal
therefrom, including the time allowed by law for taking an appeal.
(d) Within 15 days after the signed written judgment and
sentence is filed with the clerk of court, the clerk of the court must
serve on counsel for the defendant and counsel for the state a copy
of the judgment of conviction and sentence entered, noting thereon
the date of service by a certificate of service. If it is the practice of
the trial court or the clerk of court to hand deliver copies of the
judgment and sentence at the time of sentencing and copies are in
fact hand delivered at that time, hand delivery must be noted in the
court file, but no further service is required and the certificate of
service need not be included on the hand-delivered copy.
Committee Notes
1968 Adoption. To the same effect as section 921.02, Florida
Statutes, except the portion reading “in writing, signed by the
judge” which was added. Last sentence was added to permit the
judge to operate under section 948.01(3), Florida Statutes.
The Florida law forming the basis of this proposal is found in
article V, sections 4 and 5, Constitution of Florida, concerning the
right of appeal from a judgment of conviction; section 924.06,
Florida Statutes, specifying when a defendant may take an appeal;
section 924.09, Florida Statutes, and Florida Criminal Appellate
Rule 6.2 concerning the time for taking appeals by a defendant in
criminal cases; and section 948.011, Florida Statutes, providing for
a sentence of a fine and probation as to imprisonment.
The purpose of the proposed rule is to provide assurance that
a defendant, represented or unrepresented by counsel, will have
authoritative and timely notice of the right to appeal.
1972 Amendment. Same as prior rule [but some terminology
has been changed].
2005 Amendment. Amended to conform with section
775.08435, Florida Statutes (2004), effective July 1, 2004 (ch.
2004-60, Laws of Fla.).
RULE 3.680 cases. JUDGMENT ON INFORMAL VERDICT
If a verdict is rendered from which it can be clearly understood
that the jurors intended to acquit the defendant, a judgment of not
guilty shall be rendered thereon even though the verdict is
defective. No judgment of guilty shall be rendered on a verdict
unless the jurors clearly express in it a finding of guilt of the
defendant.
Committee Notes
1968 Adoption. Same as section 921.02, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.690 cases. JUDGMENT OF NOT GUILTY; DEFENDANT
DISCHARGED AND SURETIES EXONERATED
When a judgment of not guilty is entered, the defendant, if in
custody, shall be immediately discharged unless the defendant is in
custody on some other charge. If the defendant is at large on bail,
the defendant’s sureties shall be exonerated and, if money or bonds
have been deposited as bail, the money or bonds shall be refunded.
Committee Notes
1968 Adoption. Same as section 921.04, Florida Statutes.
1972 Amendment. Same as prior rule.
RULE 3.691 cases. POST-TRIAL RELEASE
(a) When Authorized. A defendant who has been sentenced
for the commission of any non-capital offense for which bail is not
prohibited under section 903.133, Florida Statutes, may be
released, pending review of the conviction, at the discretion of either
the trial or appellate court, applying the principles enunciated in
Younghans v. State, 90 So. 2d 308 (Fla. 1956). No defendant may be
admitted to bail on appeal from a conviction of a felony unless the
defendant establishes that the appeal is taken in good faith, on
grounds fairly debatable, and not frivolous. However, in no case
shall bail be granted if the defendant has previously been convicted
of a felony, the commission of which occurred prior to the
commission of the subsequent felony, and the defendant’s civil
rights have not been restored or if other felony charges are pending
against the defendant and probable cause has been found that the
defendant has committed the felony or felonies at the time the
request for bail is made.
(b) Written Findings. In any case in which the court has the
discretion to release the defendant pending review of the conviction
and, after the defendant’s conviction, denies release, it shall state in
writing its reasons for the denial.
(c) Review of Denial. An order by a trial court denying bail
to a defendant pursuant to the provisions of subdivision (a) may be
reviewed by motion to the appellate court and the motion shall be
advanced on the calendar of the appellate court for expeditious
review.
(d) Conditions of Release. If the defendant is released after
conviction and pending appeal, the conditions shall be:
(1) the defendant will duly prosecute the appeal; and
(2) the defendant will surrender himself or herself in
execution of the judgment or sentence on its being affirmed or
modified or on the appeal being dismissed; or in case the judgment
is reversed and the cause remanded for a new trial, the defendant
will appear in the court to which the cause may be remanded for a
new trial, that the defendant will appear in the court to which the
cause may be remanded and submit to the orders and process
thereof and will not depart the jurisdiction of the court without
leave.
(e) Approval of Bond. The court shall approve the
sufficiency and adequacy of the bond, its security, and sureties,
prior to the release of the defendant. However, in no case may an
original appearance bond be continued for an appeal.
Committee Notes
1977 Amendment. Chapter 76-138, section 2, Laws of
Florida, by appropriate vote, repealed the provisions of rule 3.691,
insofar as they were inconsistent with the legislative act. This rule
has been amended to include the provisions of Chapter 76-138,
Laws of Florida.
RULE 3.692 cases. PETITION TO SEAL OR EXPUNGE
(a) Requirements of Petition.
(1) All relief sought by reason of sections 943.0585,
Florida Statutes, shall be by written petition, filed with the clerk.
The petition must be accompanied by:
(A) a valid certificate of eligibility issued by the
Florida Department of Law Enforcement; and
(B) a sworn statement by the petitioner attesting
that the petitioner:
(i) satisfies the eligibility requirement in
section 943.0585(1), Florida Statutes;
(ii) is eligible for an expunction to the best of
the petitioner’s knowledge; and
(iii) does not have any other petition to seal
or expunge a criminal history record pending before any court.
The completed petition, sworn statement, and certificate of
eligibility shall be served on the prosecuting attorney and the
arresting authority; however, it is not necessary to make any agency
other than the state a party.
(2) All relief sought pursuant to section 943.059,
Florida Statutes, shall be by written petition, filed with the clerk.
The petition must be accompanied by:
(A) a valid certificate of eligibility issued by the
Florida Department of Law Enforcement; and
(B) a sworn statement by the petitioner attesting
that the petitioner:
(i) satisfies the eligibility requirement in
section 943.059(1), Florida Statutes;
(ii) is eligible for a sealing to best of the
petitioner’s knowledge; and
(iii) does not have any other petition to seal
or expunge a criminal history record pending before the court.
The completed petition, sworn statement, and certificate of
eligibility shall be served on the prosecuting attorney and the
arresting authority; however, it is not necessary to make any agency
other than the state a party.
(b) State’s Response; Evidence. The prosecuting attorney
and arresting agency may respond to the petition and sworn
statement. The court may receive evidence on any issue of fact
necessary to rule on the petition.
(c) Written Order. If the petition is granted, the court shall
enter its written order so stating and further setting forth the
records and agencies or departments to which it is directed. Any
request for expunging or sealing of a criminal history record may be
denied at the sole discretion of the court. The court may not order a
criminal justice agency to expunge or seal a criminal history record
until the petitioner has applied for and received a certificate of
eligibility.
(d) Clerk’s Duties.
(1) On receipt of an order sealing or expunging non
judicial criminal history records, the clerk shall:
(A) furnish a certified copy thereof to each agency
or department named therein except the court;
(B) certify copies of the order to the appropriate
state attorney, or statewide prosecutor, and the arresting agency;
and
(C) certify a copy of the order to any other agency
that the records of the court reflect has received the criminal
history record from the court.
(2) In regard to the official records of the court,
including the court file of the cause, the clerk shall:
(A) remove from the official records of the court,
excepting the court file, all entries and records subject to the order,
provided that, if it is not practical to remove the entries and
records, the clerk shall make certified copies thereof and then
expunge by appropriate means the original entries and records;
(B) seal the entries and records, or certified copies
thereof, together with the court file and retain the same in a
nonpublic index, subject to further order of the court (see Johnson
v. State, 336 So. 2d 93 (Fla. 1976)); and
(C) in multi-defendant cases, make a certified copy
of the contents of the court file that shall be sealed under
subdivision (d)(2)(B). Thereafter, all references to the petitioner shall
be expunged from the original court file.
(e) Costs. Petitioner shall bear all costs of certified copies
unless petitioner is indigent.
Committee Notes
1984 Amendment. Substantially the same as the former rule.
The statutory reference in (1) was changed to cite the current
statute and terminology was changed accordingly. Subdivision (f) of
the former rule was deleted because it dealt with substantive
matters covered by section 943.058, Florida Statutes (1981).
2000 Amendment. Substantially the same as the former rule,
but references to certificate of eligibility for obtaining nonjudicial
criminal history records were added pursuant to State v. D.H.W.,
686 So. 2d 1331 (Fla. 1996).
2019 Amendment. Subdivisions addressing human
trafficking were moved to rule 3.693.
RULE 3.693 cases. PETITION TO SEAL OR EXPUNGE; HUMAN
TRAFFICKING
(a) Requirements of Petition.
(1) A person who is a victim of human trafficking may
petition for the expunction of a criminal history record pursuant to
section 943.0583, Florida Statutes. The petition shall be in writing
and filed with the clerk of court in any count in the circuit in which
the petitioner was arrested. The petition need not be filed in the
court where the petitioner’s criminal proceeding originally occurred.
The petition must be initiated by the petitioner with due diligence
after the victim has ceased to be a victim of human trafficking or
has sought services for victims of human trafficking. The petition to
expunge is complete only when accompanied by:
(A) the petitioner’s sworn statement attesting that
the petitioner is eligible for such an expunction to the best of his or
her knowledge or belief; and
(B) official documentation of the petitioner’s status
as a victim of human trafficking, if any exists.
The petition to expunge need not be accompanied by a certificate of
eligibility from the Florida Department of Law Enforcement. The
completed petition, sworn statement, and any other official
documentation of the petitioner’s status as a victim of human
trafficking, shall be served on the prosecuting attorney and the
arresting authority; however, it is not necessary to make any agency
other than the state a party.
(b) State’s Response; Evidence. The prosecuting attorney
and arresting agency may respond to the petition. Official
documentation of the victim’s status creates a presumption that his
or her participation in the offense was a result of having been a
victim of human trafficking but is not required for granting a
petition under section 943.0583, Florida Statutes. A determination
made without such official documentation must be made by a
showing of clear and convincing evidence. Determination of the
petition under section 943.0583, Florida Statutes, should be by a
preponderance of the evidence.
(c) Written Order. If the petition is granted, the court shall
enter its written order so stating and further setting forth the
records and agencies or departments to which it is directed.
(d) Clerk’s Duties.
(1) On the receipt of an order sealing or expunging
nonjudicial criminal history records, the clerk shall:
(A) furnish a certified copy thereof to each agency
or department named therein except the court;
(B) certify copies of the order to the appropriate
prosecuting attorney and the arresting agency; and
(C) certify a copy of the order to any other agency
which the records of the court reflect has received the criminal
history record from the court.
(2) In regard to the official records of the court,
including the court file of the cause, the clerk shall:
(A) remove from the official records of the court,
excepting the court file, all entries and records subject to the order,
provided that, if it is not practical to remove the entries and
records, the clerk shall make certified copies thereof and then
expunge by appropriate means the original entries and records;
(B) seal the entries and records, or certified copies
thereof, together with the court file and retain the same in a
nonpublic index, subject to further order of the court (see Johnson
v. State, 336 So. 2d 93 (Fla. 1976)); and
(C) in multi-defendant cases, make a certified copy
of the contents of the court file that shall be sealed under
subdivision (d)(2)(B). Thereafter, all references to the petitioner shall
be expunged from the original court file.
Committee Notes
2019 Amendment. Rule 3.693 was previously a part of rule
3.692.
RULE 3.694 cases. PETITION TO SEAL OR EXPUNGE; LAWFUL
SELF-DEFENSE EXPUNCTION
(a) Requirements of Petition. All relief sought by reason of
section 943.0578, Florida Statutes, shall be by written petition, filed
with the clerk. The petition must be accompanied by:
(1) a valid certificate of eligibility for expunction issued
by the Florida Department of Law Enforcement pursuant to this
section; and
(2) the petitioner’s sworn statement attesting that the
petitioner is eligible for such an expunction to the best of his or her
knowledge or belief.
In judicial proceedings under this section, the completed petition to
expunge shall be served upon the appropriate state attorney or the
statewide prosecutor and upon the arresting agency; however, it is
not necessary to make any agency other than the state a party.
(b) State’s Response. The appropriate state attorney or the
statewide prosecutor and the arresting agency may respond to the
court regarding the completed petition to expunge.
(c) Written Order. If the petition is granted, the court shall
enter its written order so stating and further setting forth the
records and agencies or departments to which it is directed. Any
request for expunging or sealing of a criminal history record may be
denied at the sole discretion of the court. The court may not order a
criminal justice agency to expunge or seal a criminal history record
until the petitioner has applied for and received a certificate of
eligibility.
(d) Clerk’s Duties.
(1) On the receipt of an order sealing or expunging
nonjudicial criminal history records, the clerk shall:
(A) furnish a certified copy thereof to each agency
or department named therein except the court;
(B) certify copies of the order to the appropriate
prosecuting attorney and the arresting agency; and
(C) certify a copy of the order to any other agency
which the records of the court reflect has received the criminal
history record from the court.
(2) In regard to the official records of the court,
including the court file of the cause, the clerk shall:
(A) remove from the official records of the court,
excepting the court file, all entries and records subject to the order,
provided that, if it is not practical to remove the entries and
records, the clerk shall make certified copies thereof and then
expunge by appropriate means the original entries and records;
(B) seal the entries and records, or certified copies
thereof, together with the court file and retain the same in a
nonpublic index, subject to further order of the court (see Johnson
v. State, 336 So. 2d 93 (Fla. 1976)); and
(C) in multi-defendant cases, make a certified copy
of the contents of the court file that shall be sealed under
subdivision (d)(2)(B). Thereafter, all references to the petitioner shall
be expunged from the original court file.
(e) Costs. Petitioner shall bear all costs of certified copies
unless petitioner is indigent.
Committee Notes
2019 Amendment. New rule to address section 943.0578,
Florida Statutes.
XIV. SENTENCE
RULE 3.700 cases. SENTENCE DEFINED; PRONOUNCEMENT AND
ENTRY; SENTENCING JUDGE
(a) Sentence Defined. The term sentence means the
pronouncement by the court of the penalty imposed on a defendant
for the offense of which the defendant has been adjudged guilty.
(b) Pronouncement and Entry. Every sentence or other
final disposition of the case shall be pronounced in open court,
including, if available at the time of sentencing, the amount of jail
time credit the defendant is to receive. The final disposition of every
case shall be entered in the minutes in courts in which minutes are
kept and shall be docketed in courts that do not maintain minutes.
(c) Sentencing Judge.
(1) Noncapital Cases. In any case, other than a capital
case, in which it is necessary that sentence be pronounced by a
judge other than the judge who presided at trial or accepted the
plea, the sentencing judge shall not pass sentence until the judge
becomes acquainted with what transpired at the trial, or the facts,
including any plea discussions, concerning the plea and the offense.
(2) Capital Cases. In any capital case in which it is
necessary that sentence be pronounced by a judge other than the
judge who presided at the capital trial, the sentencing judge shall
conduct a new sentencing proceeding before a jury prior to passing
sentence.
Committee Notes
1968 Adoption. This rule is a revamped version of section
921.05, Florida Statutes.
1972 Amendment. Subdivisions (a) and (b) are substantially
the same as in former rule. Subdivision (c) was added to emphasize
that the sentencing procedure should be conducted by the trial
judge or the judge taking the plea. The rule makes provision for
emergency situations when such judge is unavailable.
RULE 3.701 cases. SENTENCING GUIDELINES
(a) Use with Forms. This rule is to be used in conjunction
with forms 3.988(a)–(i).
(b) Statement of Purpose. The purpose of sentencing
guidelines is to establish a uniform set of standards to guide the
sentencing judge in the sentence decision-making process. The
guidelines represent a synthesis of current sentencing theory and
historic sentencing practices throughout the state. Sentencing
guidelines are intended to eliminate unwarranted variation in the
sentencing process by reducing the subjectivity in interpreting
specific offense-related and offender-related criteria and in defining
their relative importance in the sentencing decision. The sentencing
guidelines embody the following principles:
(1) Sentencing should be neutral with respect to race,
gender, and social and economic status.
(2) The primary purpose of sentencing is to punish the
offender. Rehabilitation and other traditional considerations
continue to be desired goals of the criminal justice system but must
assume a subordinate role.
(3) The penalty imposed should be commensurate with
the severity of the convicted offense and the circumstances
surrounding the offense.
(4) The severity of the sanction should increase with
the length and nature of the offender’s criminal history.
(5) The sentence imposed by the sentencing judge
should reflect the length of time to be served, shortened only by the
application of gain time.
(6) While the sentencing guidelines are designed to aid
the judge in the sentencing decision and are not intended to usurp
judicial discretion, departures from the presumptive sentences
established in the guidelines shall be articulated in writing and
made when circumstances or factors reasonably justify the
aggravation or mitigation of the sentence. The level of proof
necessary to establish facts supporting a departure from a sentence
under the guidelines is a preponderance of the evidence.
(7) Because the capacities of state and local
correctional facilities are finite, use of incarcerative sanctions
should be limited to those persons convicted of more serious
offenses or those who have longer criminal histories. To ensure
such usage of finite resources, sanctions used in sentencing
convicted felons should be the least restrictive necessary to achieve
the purposes of the sentence.
(c) Offense Categories. Offenses have been grouped into 9
offense categories encompassing the following statutes:
Category 1: Murder, manslaughter: Chapter 782 (except
subsection 782.04(1)(a)), subsection 316.193(3)(c)3, and subsection
327.351(2).
Category 2: Sexual offenses: Section 775.22, chapters 794 and
800, section 826.04, and section 491.0112.
Category 3: Robbery: Section 812.13, and sections 812.133
and 812.135.
Category 4: Violent personal crimes: Section 231.06, chapters
784 and 836, section 843.01, and subsection 381.411(4).
Category 5: Burglary: Chapter 810, section 817.025, and
subsection 806.13(3).
Category 6: Thefts, forgery, fraud: Sections 192.037 and
206.56, chapters 322 and 409, section 370.142, section 415.111,
chapter 443, section 493.3175, sections 494.0018, 496.413, and
496.417, chapter 509, subsection 517.301(1)(a), subsections
585.145(3) and 585.85(2), section 687.146, and chapters 812
(except section 812.13), 815, 817, 831, and 832.
Category 7: Drugs: Section 499.005 and chapter 893.
Category 8: Weapons: Chapter 790 and section 944.40.
Category 9: All other felony offenses.
(d) General Rules and Definitions.
(1) One guideline scoresheet shall be utilized for each
defendant covering all offenses pending before the court for
sentencing. The state attorney’s office will prepare the scoresheets
and present them to defense counsel for review as to accuracy in all
cases unless the judge directs otherwise. The sentencing judge shall
approve all scoresheets.
(2) “Conviction” means a determination of guilt
resulting from plea or trial, regardless of whether adjudication was
withheld or whether imposition of sentence was suspended.
(3) “Primary offense” is defined as the offense at
conviction that, when scored on the guidelines scoresheet,
recommends the most severe sanction. In the case of multiple
offenses, the primary offense is determined in the following manner:
(A) A separate guidelines scoresheet shall be
prepared scoring each offense at conviction as the “primary offense
at conviction” with the other offenses at conviction scored as
“additional offenses at conviction.”
(B) The guidelines scoresheet that recommends
the most severe sentence range shall be the scoresheet to be
utilized by the sentencing judge pursuant to these guidelines.
(4) All other offenses for which the offender is convicted
and that are pending before the court for sentencing at the same
time shall be scored as additional offenses based on their degree
and the number of counts of each.
(5) “Prior record” refers to any past criminal conduct on
the part of the offender, resulting in conviction, prior to the
commission of the primary offense. Prior record includes all prior
Florida, federal, out-of-state, military, and foreign convictions, as
well as convictions for violation of municipal or county ordinances
that bring within the municipal or county code the violation of a
state statute or statutes. Provided, however, that:
(A) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or other
nonconviction disposition shall not be scored.
(B) When scoring federal, foreign, military, or out-
of-state convictions, assign the score for the analogous or parallel
Florida statute.
(C) When unable to determine whether an offense
at conviction is a felony or a misdemeanor, the offense should be
scored as a misdemeanor. When the degree of the felony is
ambiguous or impossible to determine, score the offense as a third-
degree felony.
(D) Prior record shall include criminal traffic
offenses, which shall be scored as misdemeanors.
(E) Convictions that do not constitute violations of
a parallel or analogous state criminal statute shall not be scored.
(F) An offender’s prior record shall not be scored if
the offender has maintained a conviction-free record for a period of
10 consecutive years from the most recent date of release from
confinement, supervision, or sanction, whichever is later, to the
date of the primary offense.
(G) All prior juvenile dispositions that are the
equivalent of convictions as defined in subdivision (d)(2), occurring
within 3 years of the commission of the primary offense and that
would have been criminal if committed by an adult, shall be
included in prior record.
(6) “Legal status at time of offense” is defined as
follows: Offenders on parole, probation, or community control;
offenders in custody serving a sentence; escapees; fugitives who
have fled to avoid prosecution or who have failed to appear for a
criminal judicial proceeding or who have violated conditions of a
supersedeas bond; and offenders in pretrial intervention or
diversion programs. Legal status points are to be assessed where
these forms of legal constraint existed at the time of the commission
of offenses scored as primary or additional offenses at conviction.
Legal status points are to be assessed only once whether there are
one or more offenses at conviction.
(7) Victim injury shall be scored for each victim
physically injured during a criminal episode or transaction, and for
each count resulting in such injury whether there are one or more
victims.
(8) The recommended sentences provided in the
guideline grids are assumed to be appropriate for the composite
score of the offender. A range is provided to permit some discretion.
The permitted ranges allow the sentencing judge additional
discretion when the particular circumstances of a crime or
defendant make it appropriate to increase or decrease the
recommended sentence without the requirement of finding
reasonable justification to do so and without the requirement of a
written explanation.
(9) For those offenses having a mandatory penalty, a
scoresheet should be completed and the guideline sentence
calculated. If the recommended sentence is less than the mandatory
penalty, the mandatory sentence takes precedence. If the guideline
sentence exceeds the mandatory sentence, the guideline sentence
should be imposed.
(10) If the composite score for a defendant charged with
a single offense indicates a guideline sentence that exceeds the
maximum sentence provided by statute for that offense, the
statutory maximum sentence should be imposed.
(11) Departures from the recommended or permitted
guideline sentence should be avoided unless there are
circumstances or factors that reasonably justify aggravating or
mitigating the sentence. Any sentence outside the permitted
guideline range must be accompanied by a written statement
delineating the reasons for the departure. Reasons for deviating
from the guidelines shall not include factors relating to prior arrests
without conviction or the instant offenses for which convictions
have not been obtained.
(12) A sentence must be imposed for each offense.
However, the total sentence cannot exceed the total guideline
sentence unless a written reason is given. Where the offender is
being sentenced for a capital felony and other noncapital felonies
that arose out of the same criminal episode or transaction, the
sentencing court may impose any sentence authorized by law for
the noncapital felonies.
(13) Community control is a form of intensive supervised
custody in the community involving restriction of the freedom of the
offender. When community control is imposed, it shall not exceed
the term provided by general law.
(14) Sentences imposed after revocation of probation or
community control must be in accordance with the guidelines. The
sentence imposed after revocation of probation or community
control may be included within the original cell (guidelines range) or
may be increased to the next higher cell (guidelines range) without
requiring a reason for departure.
(15) Categories 3, 5, and 6 contain an additional factor
to be scored under the heading of Prior Record: Prior convictions for
similar offenses. Prior convictions scored under this factor should
be calculated in addition to the general prior record score. Scoring
is limited to prior felony convictions included within the category.
Sentencing Guidelines Commission Notes
1988 Amendments.
(a) The operation of this rule is not intended to change the
law or requirements of proof as regards sentencing.
(b) These principles are binding on the sentencing court.
(c) Only 1 category is proper in any particular case. Category
9, “All Other Felony Offenses,” should be used only when the
primary offense at conviction is not included in another, more
specific category. The guidelines do not apply to capital felonies.
Inchoate offenses are included within the category of the
offense attempted, solicited, or conspired to, as modified by chapter
777.
The form appearing at Florida Rule of Criminal Procedure
3.988(a) has been revised to incorporate a point value for inclusion
in the prior record factor utilized in the determination of
recommended sentence by scoring each prior conviction under
section 316.193, Florida Statutes (Supp. 1984), or section
316.1931, Florida Statutes (Supp. 1984), or section 327.351,
Florida Statutes (Supp. 1984), at a value of 32 points. This point
value will be applied only if the offender is convicted for a violation
of section 316.193(3)(c)3, Florida Statutes (Supp. 1986), or section
327.351, Florida Statutes (Supp. 1984), if the operation of a motor
vehicle or vessel by the offender while intoxicated as defined in
section 316.193(1), Florida Statutes (Supp. 1986), or section
327.351(1), Florida Statutes (Supp. 1984), results in the death of
any human being and the scoresheet utilized in sentencing is the
form appearing at Florida Rule of Criminal Procedure 3.988(a). For
purposes of determining a prior conviction for a violation of the
above enumerated statute, a prior conviction for violation of section
316.1931 or section 316.193 or former section 860.01 or former
section 316.028, or a previous conviction for any substantially
similar alcohol-related or drug-related traffic offense outside this
state shall also be considered a prior conviction.
(d)(1) Ultimate responsibility for ensuring that scoresheets are
accurately prepared rests with the sentencing court. Due to ethical
considerations, defense counsel may not be compelled to submit a
scoresheet. Probation and parole officers may be directed to compile
guidelines scoresheets only when a presentence investigation has
been ordered. The forms for calculating the guidelines are forms
3.988(a)–(i).
(d)(2) This definition applies to both instant offense and prior
record scoring.
(d)(3) The proper offense category is identified on determination
of the primary offense. When the defendant is convicted of
violations of more than 1 unique statute, the offenses are to be
sorted by statutory degree.
(d)(4) No points shall be scored for lesser and included
offenses. In the event of multiple counts of the same distinct offense
and degree of felony being scored as primary offense, it shall be
scored as additional counts of the primary offense. All other
offenses for which the defendant is convicted that are pending
before the court for sentencing shall be scored as additional
offenses.
(d)(5) Each separate prior felony and misdemeanor conviction
in an offender’s prior record that amounts to a violation of Florida
law shall be scored, unless discharged by the passage of time. Any
uncertainty in the scoring of the defendant’s prior record shall be
resolved in favor of the defendant, and disagreement as to the
propriety of scoring specific entries in the prior record should be
resolved by the trial judge.
Prior record includes all offenses for which the defendant has
been found guilty, regardless of whether adjudication was withheld
or the record has been expunged.
Juvenile dispositions, with the exclusion of status offenses,
are included and considered along with adult convictions by
operation of this provision. However, each separate adjudication is
discharged from consideration if 3 years have passed between the
date of disposition and the commission of the instant offense.
For any offense where sentence was previously suspended
pursuant to the imposition of probation and such offense is now
before the court for sentencing, upon a revocation of that probation
based upon a subsequent criminal offense (which subsequent
offense is also before the court for sentencing at the same time), the
earlier offense shall be scored as “prior record” and not as
“additional offense.”
(d)(7) This provision implements the intention of the
commission that points for victim injury be added for each victim
injured during a criminal transaction or episode. The injury need
not be an element of the crime for which the defendant is convicted,
but is limited to physical trauma. However, if the victim injury is
the result of a crime for which the defendant has been acquitted, it
shall not be scored.
(d)(8) The first guideline cell in each category (any nonstate
prison sanction) allows the court the flexibility to impose any lawful
term of probation with or without a period of incarceration as a
condition of probation, a county jail term alone, or any
nonincarcerative disposition. Any sentence may include the
requirement that a fine be paid. The sentences are found in forms
3.988(a)–(i).
(d)(10) If an offender is convicted under an enhancement
statute, the reclassified degree should be used as the basis for
scoring the primary offense in the appropriate category. If the
offender is sentenced under section 775.084 (habitual offender), the
maximum allowable sentence is increased as provided by the
operation of that statute. If the sentence imposed departs from the
recommended sentence, the provisions of (d)(11) shall apply.
(d)(11) A sentencing judge may depart from the
recommended sentence and impose a sentence within the permitted
range without giving reasons therefor. If a sentencing judge departs
from the permitted range, reasons for departure shall be articulated
at the time sentence is imposed. The written statement shall be
made a part of the record, with sufficient specificity to inform all
parties, as well as the public, of the reasons for departure. The
court is prohibited from considering offenses for which the
defendant has not been convicted. Other factors, consistent and not
in conflict with the statement of purpose, may be considered and
utilized by the sentencing judge.
(d)(12) The sentencing court shall impose or suspend
sentence for each separate count, as convicted. The total sentence
shall not exceed the guideline sentence, unless the provisions of
subdivision (d)(11) are complied with.
If a split sentence is imposed (i.e., a combination of state
prison and probation supervision), the incarcerative portion
imposed shall not be less than the minimum of the guideline range
nor exceed the maximum of the range. The total sanction
(incarceration and probation) shall not exceed the term provided by
general law.
(d)(13) Community control is a viable alternative for any
state prison sentence less than 24 months without requiring a
reason for departure. It is appropriate to impose a sentence of
community control to be followed by a term of probation. The total
sanction (community control and probation) shall not exceed the
term provided by general law.
Community control is not an alternative sanction from the
recommended range of any nonstate prison sanction unless the
provisions of rule 3.701(d)(11) are applied.
1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(6) is to clarify the original intent that legal constraint is a
status consideration and is not to be considered a function of the
number of offenses at conviction.
1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(7) is to provide consistency in the scoring of victim injury
by scoring each offense at conviction for which victim injury can
appropriately be scored, whether committed against a single or
multiple victims.
1993 Amendments. Inchoate offenses are included within the
category of the offense attempted, solicited, or conspired to, as
modified by chapter 777. An attempt, solicitation, or conspiracy to
commit first-degree murder as defined in subsection 782.04(1)(a)
shall be scored in category 1. An attempt, solicitation, or conspiracy
to commit capital sexual battery as defined in subsection
794.011(2) shall be scored in category 2.
RULE 3.702 cases. SENTENCING GUIDELINES (1994)
(a) Use. This rule is to be used in conjunction with the forms
located at rule 3.990. This rule is intended to implement the 1994
revised sentencing guidelines in strict accordance with chapter 921,
Florida Statutes, as revised by chapter 93-406, Laws of Florida.
(b) Purpose and Construction. The purpose of the 1994
revised sentencing guidelines and the principles they embody are
set out in subsection 921.001(4). Existing caselaw construing the
application of sentencing guidelines that is in conflict with the
provisions of this rule or the statement of purpose or the principles
embodied by the 1994 sentencing guidelines set out in subsection
921.001(4) is superseded by the operation of this rule.
(c) Offense Severity Ranking. Felony offenses subject to
the 1994 revised sentencing guidelines are listed in a single offense
severity ranking chart located at section 921.0012. The offense
severity ranking chart employs 10 offense levels, ranked from least
severe to most severe. Each felony offense is assigned to a level
according to the severity of the offense, commensurate with the
harm or potential for harm to the community that is caused by the
offense. Felony offenses not listed in section 921.0012 are to be
assigned a severity level as described in section 921.0013.
(d) General Rules and Definitions.
(1) A comprehensive guidelines scoresheet shall be
prepared for each defendant covering all offenses pending before the
court for sentencing, including offenses for which the defendant has
been adjudicated an habitual felony offender or an habitual violent
felony offender. The office of the state attorney or the probation
services office, or both where appropriate, will prepare the
scoresheets and present them to defense counsel for review as to
accuracy. Where the defendant is alleged to have violated probation
or community control and probation services will recommend
revocation, probation services shall prepare a comprehensive
guidelines scoresheet for use at sentencing after revocation of
probation or community control. The sentencing judge shall review
the scoresheet for accuracy.
(2) “Conviction” means a determination of guilt
resulting from plea or trial, regardless of whether adjudication was
withheld or whether imposition of sentence was suspended.
(3) “Primary offense” is the offense pending for
sentencing that results in the highest number of total sentence
points. Only one offense may be scored as the primary offense.
(4) “Additional offense” is any offense, other than the
primary offense, pending before the court for sentencing. Sentence
points for additional offenses are determined by the severity level
and the number of offenses at a particular severity level.
Misdemeanors are scored at level “M” regardless of degree.
(5) “Victim injury” is scored for physical injury or death
suffered by a person as a direct result of any offense pending before
the court for sentencing. If an offense pending before the court for
sentencing involves sexual penetration, victim injury is to be
scored. If an offense pending before the court for sentencing
involves sexual contact, but no penetration, victim injury shall be
scored. If the victim of an offense involving sexual penetration or
sexual contact without penetration suffers any physical injury as a
direct result of an offense pending before the court for sentencing,
that physical injury is to be scored separately and in addition to
any points scored for the sexual contact or sexual penetration.
Victim injury shall be scored for each victim physically injured
and for each offense resulting in physical injury whether there are
one or more victims. However, if the victim injury is the result of a
crime of which the defendant has been acquitted, it shall not be
scored.
(6) Attempts, conspiracies, and solicitations charged
under chapter 777 are scored at severity levels below the level at
which the completed offense is located. Attempts and solicitations
are scored 2 severity levels below the completed offense. Criminal
conspiracies are scored 1 severity level below the completed offense.
(7) “Total offense score” results from adding the
sentence points for primary offense, additional offense, and victim
injury.
(8) “Prior record” refers to any conviction for an offense
committed by the defendant prior to the commission of the primary
offense. Prior record shall include convictions for offenses
committed by the defendant as an adult or as a juvenile,
convictions by federal, out-of-state, military, or foreign courts, and
convictions for violations of county or municipal ordinances that
incorporate by reference a penalty under state law. Federal, out-of-
state, military, or foreign convictions are scored at the severity level
at which the analogous or parallel Florida crime is located.
(A) Convictions for offenses committed more than
10 years prior to the date of the commission of the primary offense
are not scored as prior record if the defendant has not been
convicted of any other crime for a period of 10 consecutive years
from the most recent date of release from confinement, supervision,
or other sanction, which-ever is later, to the date of the commission
of the primary offense.
(B) Juvenile dispositions of offenses committed by
the defendant within 3 years prior to the date of the commission of
the primary offense are scored as prior record if the offense would
have been a crime if committed by an adult. Juvenile dispositions of
sexual offenses committed by the defendant more than 3 years prior
to the date of the primary offense are to be scored as prior record if
the defendant has not maintained a conviction-free record, either as
an adult or as a juvenile, for a period of 3 consecutive years from
the most recent date of release from confinement, supervision, or
sanction, whichever is later, to the date of commission of the
primary offense.
(C) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or a disposition other
than conviction shall not be scored. Criminal history records
expunged or sealed under section 943.058 or other provisions of
law, including former sections 893.14 and 901.33, shall be scored
as prior record where the defendant whose record has been
expunged or sealed is before the court for sentencing.
(D) Any uncertainty in the scoring of the
defendant’s prior record shall be resolved in favor of the defendant,
and disagreement as to the propriety of scoring specific entries in
the prior record shall be resolved by the sentencing judge.
(E) When unable to determine whether the
conviction to be scored as prior record is a felony or a
misdemeanor, the conviction should be scored as a misdemeanor.
When the degree of felony is ambiguous or the severity level cannot
be deter-mined, the conviction should be scored at severity level 1.
(9) “Legal status violations” occur when a defendant,
while under any of the forms of legal status listed in subsection
921.0011(3), commits an offense that results in conviction. Legal
status violations receive a score of 4 sentence points and are scored
when the offense committed while under legal status is before the
court for sentencing. Points for a legal status violation are to be
assessed only once regardless of the existence of more than one
form of legal status at the time an offense is committed or the
number of offenses committed while under any form of legal status.
(10) “Release program violations” occur when the
defendant is found to have violated a condition of a release program
designated in subsection 921.0011(6). Six points shall be assessed
for each violation up to a maximum of 18 points in the case of
multiple violations. Where there are multiple violations, points in
excess of 6 may be assessed only for each successive violation that
follows the reinstatement or modification of the release program
and are not to be assessed for violation of several conditions of a
single release program order.
(11) “Total prior record score” results from adding
sentence points for prior record, legal status violations, and release
program violations.
(12) Possession of a firearm, destructive device,
semiautomatic weapon, or a machine gun during the commission or
attempt to commit a crime will result in additional sentence points.
Eighteen sentence points shall be assessed where the defendant is
convicted of committing or attempting to commit any felony other
than those enumerated in subsection 775.087(2) while having in his
or her possession a firearm as defined in subsection 790.001(6) or a
destructive device as defined in subsection 790.001(4). Twenty-five
sentence points shall be assessed where the offender is convicted of
committing or attempting to commit any felony other than those
enumerated in subsection 775.087(2) while having in his or her
possession a semiautomatic weapon as defined in subsection
775.087(2) or a machine gun as defined in subsection 790.001(9).
(13) “Subtotal sentence points” result from adding the
total offense score, the total prior record score, and any additional
points for possession of a firearm, destructive device,
semiautomatic weapon, or machine gun.
(14) If the primary offense is drug trafficking under
section 893.135, the subtotal sentence points may be multiplied, at
the discretion of the sentencing court, by a factor of 1.5. If the
primary offense is a violation of the Law Enforcement Protection Act
under subsections 775.0823(2), (3), (4), or (5), the subtotal sentence
points shall be multiplied by a factor of 2. If the primary offense is a
violation of subsection 775.087(2)(a)(2) or subsections 775.0823(6)
or (7), the subtotal sentence points shall be multiplied by a factor of
1.5. If both enhancements are applicable, only the enhancement
with the higher multiplier is to be used.
(15) “Total sentence points” result from the
enhancement, if applicable, of the subtotal sentence points. If no
enhancement is applicable, the subtotal sentence points are the
total sentence points.
(16) “Presumptive sentence” is determined by the total
sentence points. If the total sentence points are less than or equal
to 40, the recommended sentence, absent a departure, shall not be
state prison. However, the sentencing court may increase sentence
points less than or equal to 40 by up to and including 15 percent to
arrive at total sentence points in excess of 40. If the total sentence
points are greater than 40 but less than or equal to 52, the decision
to sentence the defendant to state prison or a nonstate prison
sanction is left to the discretion of the sentencing court. If the total
sentence points are greater than 52, the sentence, absent a
departure, must be to state prison.
A state prison sentence is calculated by deducting 28 points
from the total sentence points where total sentence points exceed
40. The resulting number represents state prison months. State
prison months may be increased or decreased by up to and
including 25 percent at the discretion of the sentencing court. State
prison months may not be increased where the sentencing court
has exercised discretion to increase total sentence points under 40
points to achieve a state prison sentence. The sentence imposed
must be entered on the score-sheet.
(17) For those offenses having a mandatory penalty, a
scoresheet should be completed and the guidelines presumptive
sentence calculated. If the presumptive sentence is less than the
mandatory penalty, the mandatory sentence takes precedence. If
the presumptive sentence exceeds the mandatory sentence, the
presumptive sentence should be imposed.
(18) Departure from the recommended guidelines
sentence provided by the total sentence points should be avoided
unless there are circumstances or factors that reasonably justify
aggravating or mitigating the sentence. A state prison sentence that
deviates from the recommended prison sentence by more than 25
percent, a state prison sentence where the total sentence points are
equal to or less than 40, or a sentence other than state prison
where the total sentence points are greater than 52 must be
accompanied by a written statement delineating the reasons for
departure. Circumstances or factors that can be considered include,
but are not limited to, those listed in subsections 921.0016(3) and
(4). Reasons for departing from the recommended guidelines
sentence shall not include circumstances or factors relating to prior
arrests without conviction or charged offenses for which convictions
have not been obtained.
(A) If a sentencing judge imposes a sentence that
departs from the recommended guidelines sentence, the reasons for
departure shall be orally articulated at the time sentence is
imposed. Any departure sentence must be accompanied by a
written statement, signed by the sentencing judge, delineating the
reasons for departure. The written statement shall be filed in the
court file within 15 days of the date of sentencing. A written
transcription of orally stated reasons for departure articulated at
the time sentence was imposed is sufficient if it is signed by the
sentencing judge and filed in the court file within 15 days of the
date of sentencing. The sentencing judge may also list the written
reasons for departure in the space provided on the guidelines
scoresheet and shall sign the scoresheet.
(B) The written statement delineating the reasons
for departure shall be made a part of the record. The written
statement, if it is a separate document, must accompany the
guidelines scoresheet required to be provided to the Department of
Corrections pursuant to subsection 921.0014(5).
(19) The sentencing court shall impose or suspend
sentence for each separate count, as convicted. The total sentence
shall be within the guidelines sentence unless a departure is
ordered.
If a split sentence is imposed, the incarcerative portion of the
sentence must not deviate more than 25 percent from the
recommended guidelines prison sentence. The total sanction
(incarceration and community control or probation) shall not exceed
the term provided by general law or the guidelines recommended
sentence where the provisions of subsection 921.001(5) apply.
(20) Sentences imposed after revocation of probation or
community control must be in accordance with the guidelines.
Cumulative incarceration imposed after revocation of probation or
community control is subject to limitations imposed by the
guidelines. A violation of probation or community control may not
be the basis for a departure sentence.
Committee Notes
1993 Adoption. (d)(1) If sentences are imposed under
section 775.084 and the sentencing guidelines, a scoresheet listing
only those offenses sentenced under the sentencing guidelines must
be prepared and utilized in lieu of the comprehensive scoresheet.
Due to ethical considerations, defense counsel may not be
compelled to submit or sign a scoresheet.
(d)(3) The primary offense need not be the highest ranked
offense pending for sentencing where scoring the less severe offense
as the primary offense will result in higher total sentence points.
This can occur where the multipliers for drug trafficking or
violations of the Law Enforcement Protection Act are applied or
where past convictions can be included as prior record that could
not be scored if the offense ranked at a higher severity level was the
primary offense.
(d)(16) The presumptive sentence is assumed to be
appropriate for the composite score of the defendant. Where the
total sentence points do not exceed 40, the court has the flexibility
to impose any lawful term of probation with or without a period of
incarceration as a condition of probation, a county jail term alone,
or any nonincarcerative disposition. Any sentence may include a
requirement that a fine be paid.
RULE 3.703 cases. SENTENCING GUIDELINES (1994 AS AMENDED)
(a) Use. This rule is to be used in conjunction with the forms
located at rule 3.991. This rule implements the 1994 sentencing
guidelines, as amended, in strict accordance with chapter 921,
Florida Statutes. This rule applies to offenses committed on or after
October 1, 1995, or as otherwise indicated.
(b) Purpose and Construction. The purpose of the 1994
sentencing guidelines and the principles they embody are set out in
subsection 921.001(4). Existing caselaw construing the application
of sentencing guidelines that is in conflict with the provisions of this
rule or the statement of purpose or the principles embodied by the
1994 sentencing guidelines set out in subsection 921.001(4) is
superseded by the operation of this rule.
(c) Offense Severity Ranking.
(1) Felony offenses subject to the 1994 sentencing
guidelines, as amended, are listed in a single offense severity
ranking chart located at section 921.0012. The offense severity
ranking chart employs 10 offense levels, ranked from least severe to
most severe. Each felony offense is assigned to a level according to
the severity of the offense, commensurate with the harm or
potential for harm to the community that is caused by the offense.
The numerical statutory reference in the left column of the chart
and the felony degree designations in the middle column of the
chart determine whether felony offenses are specifically listed in the
offense severity ranking chart and the appropriate severity level.
The language in the right column is merely descriptive.
(2) Felony offenses not listed in section 921.0012 are to
be assigned a severity level in accordance with section 921.0013, as
follows:
(A) A felony of the third degree within offense level
1.
(B) A felony of the second degree within offense
level 4.
(C) A felony of the first degree within offense level
7.
(D) A felony of the first degree punishable by life
within offense level 9.
(E) A life felony within offense level 10.
An offense does not become unlisted and subject to the
provisions of section 921.0013, because of a reclassification of the
degree of felony pursuant to section 775.0845, section 775.087,
section 775.0875 or section 794.023.
(d) General Rules and Definitions.
(1) One or more sentencing guidelines scoresheets shall
be prepared for each offender covering all offenses pending before
the court for sentencing, including offenses for which the offender
has been adjudicated an habitual felony offender, an habitual
violent felony offender or violent career criminal. The office of the
state attorney or the Department of Corrections, or both where
appropriate, will prepare the scoresheets and present them to
defense counsel for review as to accuracy. The Department of
Corrections shall prepare sentencing guidelines scoresheets if the
offender is alleged to have violated probation or community control
and revocation is recommended.
(2) One scoresheet shall be prepared for all offenses
committed under any single version or revision of the guidelines,
pending before the court for sentencing.
(3) If an offender is before the court for sentencing for
more than one felony and the felonies were committed under more
than one version or revision of the guidelines, separate scoresheets
must be prepared and used at sentencing. The sentencing court
may impose such sentence concurrently or consecutively.
(4) The sentencing judge shall review the scoresheet for
accuracy and sign it.
(5) Felonies, except capital felonies, with continuing
dates of enterprise are to be sentenced under the guidelines in
effect on the beginning date of the criminal activity.
(6) “Conviction” means a determination of guilt
resulting from plea or trial, regardless of whether adjudication was
withheld or whether imposition of sentence was suspended.
(7) “Primary offense” is the offense pending for
sentencing that results in the highest number of total sentence
points. Only one offense may be scored as the primary offense.
(8) “Additional offense” is any offense, other than the
primary offense, pending before the court for sentencing. Sentence
points for additional offenses are determined by the severity level
and the number of offenses at a particular severity level.
Misdemeanors are scored at level “M” regardless of degree.
(9) “Victim injury” is scored for physical injury or death
suffered by a person as a direct result of any offense pending before
the court for sentencing. Except as otherwise provided by law, the
sexual penetration and sexual contact points will be scored as
follows. Sexual penetration points are scored if an offense pending
before the court for sentencing involves sexual penetration. Sexual
contact points are scored if an offense pending before the court for
sentencing involves sexual contact, but no penetration. If the victim
of an offense involving sexual penetration or sexual contact without
penetration suffers any physical injury as a direct result of an
offense pending before the court for sentencing, that physical injury
is to be scored in addition to any points scored for the sexual
contact or sexual penetration.
Victim injury shall be scored for each victim physically injured
and for each offense resulting in physical injury whether there are
one or more victims. However, victim injury shall not be scored for
an offense for which the offender has not been convicted.
Victim injury resultant from one or more capital felonies before
the court for sentencing is not to be included upon any scoresheet
prepared for non-capital felonies also pending before the court for
sentencing. This in no way prohibits the scoring of victim injury as
a result from the non-capital felonies before the court for
sentencing.
(10) Unless specifically provided otherwise by statute,
attempts, conspiracies, and solicitations are indicated in the space
provided on the guidelines scoresheet and are scored at one severity
level below the completed offense.
Attempts, solicitations, and conspiracies of third-degree
felonies located in offense severity levels 1 and 2 are to be scored as
misdemeanors. Attempts, solicitations, and conspiracies of third-
degree felonies located in offense severity levels 3, 4, 5, 6, 7, 8, 9,
and 10 are to be scored as felonies one offense level beneath the
incomplete or inchoate offense.
(11) An increase in offense severity level may result from
a reclassification of felony degrees pursuant to sections 775.0845,
775.087, 775.0875, or 794.023. Any such increase should be
indicated in the space provided on the sentencing guidelines
scoresheet.
(12) A single assessment of thirty prior serious felony
points is added if the offender has a primary offense or any
additional offense ranked in level 8, 9, or 10 and one or more prior
serious felonies. A “prior serious felony” is an offense in the
offender’s prior record ranked in level 8, 9, or 10 and for which the
offender is serving a sentence of confinement, supervision or other
sanction or for which the offender’s date of release from
confinement, supervision or other sanction, whichever is later is
within 3 years before the date the primary offense or any additional
offenses were committed. Out of state convictions wherein the
analogous or parallel Florida offenses are located in offense severity
level 8, 9, or 10 are to be considered prior serious felonies.
(13) If the offender has one or more prior capital felonies,
points shall be added to the subtotal sentence points of the offender
equal to twice the number of points the offender receives for the
primary offense and any additional offense. Out-of-state convictions
wherein the analogous or parallel Florida offenses are capital
offenses are to be considered capital offenses for purposes of
operation of this section.
(14) “Total offense score” is the sum of the sentence
points for primary offense, any additional offenses and victim
injury.
(15) “Prior record” refers to any conviction for an offense
committed by the offender prior to the commission of the primary
offense, excluding any additional offenses pending before the court
for sentencing. Prior record shall include convictions for offenses
committed by the offender as an adult or as a juvenile, convictions
by federal, out-of-state, military, or foreign courts and convictions
for violations of county or municipal ordinances that incorporate by
reference a penalty under state law. Federal, out-of-state, military,
or foreign convictions are scored at the severity level at which the
analogous or parallel Florida crime is located.
(A) Convictions for offenses committed more than
10 years prior to the date of the commission of the primary offense
are not scored as prior record if the offender has not been convicted
of any other crime for a period of 10 consecutive years from the
most recent date of release from confinement, supervision, or other
sanction, whichever is later, to the date of the commission of the
primary offense.
(B) Juvenile dispositions of offenses committed by
the offender within 3 years prior to the date of the commission of
the primary offense are scored as prior record if the offense would
have been a crime if committed by an adult. Juvenile dispositions of
sexual offenses committed by the offender more than 3 years prior
to the date of the primary offense are to be scored as prior record if
the offender has not maintained a conviction-free record, either as
an adult or as a juvenile, for a period of 3 consecutive years from
the most recent date of release from confinement, supervision, or
sanction, whichever is later, to the date of commission of the
primary offense.
(C) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or a disposition other
than conviction are not scored. Criminal history records expunged
or sealed under section 943.058 or other provisions of law,
including former sections 893.14 and 901.33, are scored as prior
record where the offender whose record has been expunged or
sealed is before the court for sentencing.
(D) Any uncertainty in the scoring of the offender’s
prior record shall be resolved in favor of the offender and
disagreement as to the propriety of scoring specific entries in the
prior record shall be resolved by the sentencing judge.
(E) When unable to determine whether the
conviction to be scored as prior record is a felony or a
misdemeanor, the conviction should be scored as a misdemeanor.
When the degree of felony is ambiguous or the severity level cannot
be deter-mined, the conviction should be scored at severity level 1.
(16) “Legal status points” are assessed when an offender:
(A) Escapes from incarceration;
(B) Flees to avoid prosecution;
(C) Fails to appear for a criminal proceeding;
(D) Violates any condition of a supersedeas bond;
(E) Is incarcerated;
(F) Is under any form of a pretrial intervention or
diversion program; or
(G) Is under any form of court-imposed or post-
prison release community supervision and commits an offense that
results in conviction. Legal status violations receive a score of 4
sentence points and are scored when the offense committed while
under legal status is before the court for sentencing. Points for a
legal status violation are to be assessed only once regardless of the
existence of more than one form of legal status at the time an
offense is committed or the number of offenses committed while
under any form of legal status.
(17) Community sanction violation points occur when
the offender is found to have violated a condition of:
(A) Probation;
(B) Community Control; or
(C) Pretrial Intervention or diversion.
Community sanction violation points are assessed when a
community sanction violation is before the court for sentencing. Six
community sanction violation points shall be assessed for each
violation or if the violation results from a new felony conviction, 12
community sanction violation points shall be assessed. Where there
are multiple violations, points may be assessed only for each
successive violation that follows a continuation of supervision, or
modification or revocation of the community sanction before the
court for sentencing and are not to be assessed for violation of
several conditions of a single community sanction. Multiple counts
of community sanction violations before the sentencing court shall
not be the basis for multiplying the assessment of community
sanction violation points.
(18) “Total prior record score” is the sum of all sentence
points for prior record.
(19) Possession of a firearm, semiautomatic firearm, or a
machine gun during the commission or attempt to commit a crime
will result in additional sentence points. Eighteen sentence points
are assessed if the offender is convicted of committing or attempting
to commit any felony other than those enumerated in subsection
775.087(2) while having in his or her possession a firearm as
defined in subsection 790.001(6). Twenty-five sentence points are
assessed if the offender is convicted of committing or attempting to
commit any felony other than those enumerated in subsection
775.087(3) while having in his or her possession a semiautomatic
firearm as defined in subsection 775.087(3) or a machine gun as
defined in subsection 790.001(9). Only one assessment of either 18
or 25 points shall apply.
(20) “Subtotal sentence points” are the sum of the total
offense score, the total prior record score, any legal status points,
community sanction points, prior serious felony points, prior capital
felony points or points for possession of a firearm or semi-automatic
weapon.
(21) If the primary offense is drug trafficking under
section 893.135 ranked in offense severity level 7 or 8, the subtotal
sentence points may be multiplied, at the discretion of the
sentencing court, by a factor of 1.5.
(22) If the primary offense is a violation of the Law
Enforcement Protection Act under subsection 775.0823(2), the
subtotal sentence points are multiplied by a factor of 2.5. If the
primary offense is a violation of subsection 775.0823(3), (4), (5), (6),
(7), or (8) the subtotal sentence points are multiplied by a factor of
2.0. If the primary offense is a violation of the Law Enforcement
Protection Act under subsection 775.0823(9) or (10) or section
784.07(3) or section 775.0875(1), the subtotal sentence points are
multiplied by a factor of 1.5.
(23) If the primary offense is grand theft of the third
degree of a motor vehicle and the offender’s prior record includes
three or more grand thefts of the third degree of a motor vehicle, the
subtotal sentence points are multiplied by 1.5.
(24) If the offender is found to be a member of a criminal
street gang pursuant to section 874.04, at the time of the
commission of the primary offense, the subtotal sentence points are
multiplied by 1.5.
(25) If the primary offense is determined to be a crime of
domestic violence as defined in section 741.28 and to have been
committed in the presence of a child who is related by blood or
marriage to the victim or perpetrator and who is under the age of
16, the subtotal sentence points are multiplied, at the discretion of
the court, by 1.5.
(26) “Total sentence points” are the subtotal sentence
points or the enhanced subtotal sentence points.
(27) “Presumptive sentence” is determined by the total
sentence points. A person sentenced for a felony committed on or
after July 1, 1997, who has at least one prior felony conviction and
whose recommended sentence is any nonstate prison sanction may
be sentenced to community control or a term of incarceration not to
exceed 22 months. A person sentenced for a felony committed on or
after July 1, 1997, who has at least one prior felony conviction and
whose minimum recommended sentence is less than 22 months in
state prison may be sentenced to a term of incarceration not to
exceed 22 months.
In all other cases, if the total sentence points are less than or
equal to 40, the recommended sentence, absent a departure, shall
not be state prison. The court may impose any nonstate prison
sanction authorized by law, including community control. However,
the sentencing court may increase sentence points less than or
equal to 40 by up to and including 15% to arrive at total sentence
points in excess of 40. If the total sentence points are greater than
40 but less than or equal to 52, the decision to sentence the
defendant to state prison or a nonstate prison sanction is left to the
discretion of the sentencing court. If the total sentence points are
greater than 52, the sentence, absent a departure, must be to state
prison.
A state prison sentence is calculated by deducting 28 points
from the total sentence points where total sentence points exceed
40. The resulting number represents state prison months. State
prison months may be increased or decreased by up to and
including 25% at the discretion of the sentencing court. State
prison months may not be increased where the sentencing court
has exercised discretion to increase total sentence points under 40
points to achieve a state prison sentence. The sentence imposed
must be entered on the scoresheet.
If the total sentence points are equal to or greater than
363, the court may sentence the offender to life imprisonment.
(28) If the recommended sentence under the sentencing
guidelines exceeds the maximum sentence authorized for the
pending felony offenses, the guidelines sentence must be imposed,
absent a departure. Such downward departure must be equal to or
less than the maximum sentence authorized by section 775.082.
(29) For those offenses having a mandatory penalty, a
scoresheet should be completed and the guidelines presumptive
sentence calculated. If the presumptive sentence is less than the
mandatory penalty, the mandatory sentence takes precedence. If
the presumptive sentence exceeds the mandatory sentence, the
presumptive sentence should be imposed.
(30) Departure from the recommended guidelines
sentence provided by the total sentence points should be avoided
unless there are circumstances or factors that reasonably justify
aggravating or mitigating the sentence. A state prison sentence that
deviates from the recommended prison sentence by more than 25%,
a state prison sentence where the total sentence points are equal to
or less than 40, or a sentence other than state prison where the
total sentence points are greater than 52 must be accompanied by a
written statement delineating the reasons for departure.
Circumstances or factors that can be considered include, but are
not limited to, those listed in subsections 921.0016(3) and (4).
Reasons for departing from the recommended guidelines sentence
shall not include circumstances or factors relating to prior arrests
without conviction or charged offenses for which convictions have
not been obtained.
(A) If a sentencing judge imposes a sentence that
departs from the recommended guidelines sentence, the reasons for
departure shall be orally articulated at the time sentence is
imposed. Any departure sentence must be accompanied by a
written statement, signed by the sentencing judge, delineating the
reasons for departure. The written statement shall be filed in the
court file within 7 days after the date of sentencing. A written
transcription of orally stated reasons for departure articulated at
the time sentence was imposed is sufficient if it is signed by the
sentencing judge and filed in the court file within 7 days after the
date of sentencing. The sentencing judge may also list the written
reasons for departure in the space provided on the guidelines
scoresheet and shall sign the scoresheet.
(B) The written statement delineating the reasons
for departure shall be made a part of the record. The written
statement, if it is a separate document, must accompany the
guidelines scoresheet required to be provided to the Department of
Corrections pursuant to subsection 921.0014(5).
(31) The sentencing court shall impose or suspend
sentence for each separate count, as convicted. The total sentence
shall be within the guidelines sentence unless a departure is
ordered.
If a split sentence is imposed, the incarcerative portion of
the sentence must not deviate more than 25 percent from the
recommended guidelines prison sentence. The total sanction
(incarceration and community control or probation) shall not exceed
the term provided by general law or the guidelines recommended
sentence where the provisions of subsection 921.001(5) apply.
(32) Sentences imposed after revocation of probation or
community control must be in accordance with the guidelines.
Cumulative incarceration imposed after revocation of probation or
community control is subject to limitations imposed by the
guidelines. A violation of probation or community control may not
be the basis for a departure sentence.
Committee Notes
1996 Amendments.
(a) This portion was amended to show that the earliest
offense date to which this rule applies is October 1, 1995 and that
all subsequent changes are incorporated. It is intended that
Committee Notes will be used to indicate effective dates of changes.
(c) This amendment applies to offenses committed on or
after October 1, 1996.
(d)(9) The 1996 Legislature created two crimes for which sexual
penetration or sexual contact points are not scored. That exception
applies to offenses committed on or after October 1, 1996 pursuant
to section 872.06, Florida Statutes or section 944.35(3)(b)2, Florida
Statutes.
(d)(12) The amendment applies to offenses committed on or
after October 1, 1996.
(d)(13) The amendment applies on or after October 1, 1996.
(d)(17) This amendment, which applies on or after October
1, 1996, clarifies when points may be assessed for multiple
violations. It also incorporates legislative changes that indicate that
multiple assessments may not be made for multiple counts of
community sanction violations.
(d)(24) The amendment applies to crimes committed on or
after October 1, 1996.
1997 Amendments.
(d)(25) The amendment applies to crimes committed on or
after October 1, 1997.
RULE 3.704 cases. THE CRIMINAL PUNISHMENT CODE
(a) Use. This rule is to be used in conjunction with the forms
located at rule 3.992. This rule implements the 1998 Criminal
Punishment Code, in compliance with chapter 921, Florida
Statutes. This rule applies to offenses committed on or after
October 1, 1998, or as otherwise required by law.
(b) Purpose and Construction. The purpose of the 1998
Criminal Punishment Code, and the principles it embodies, are set
out in subsection 921.002(1), Florida Statutes. Existing case law
construing the application of sentencing guidelines will continue as
precedent unless in conflict with the provisions of this rule or the
1998 Criminal Punishment Code.
(c) Offense Severity Ranking.
(1) Felony offenses subject to the 1998 Criminal
Punishment Code are listed in a single offense severity ranking
chart located at section 921.0022, Florida Statutes. The offense
severity ranking chart employs 10 offense levels, ranked from least
severe to most severe. Each felony offense is assigned to a level
according to the severity of the offense, commensurate with the
harm or potential for harm to the community that is caused by the
offense, as determined by statute. The numerical statutory
reference in the left column of the chart and the felony degree
designations in the middle column of the chart determine whether
felony offenses are specifically listed in the offense severity ranking
chart and the appropriate severity level. The language in the right
column is merely descriptive.
(2) Felony offenses not listed in section 921.0022 are
assigned a severity level in accordance with section 921.0023,
Florida Statutes, as follows:
(A) a felony of the third degree within offense level
1;
(B) a felony of the second degree within offense
level 4;
(C) a felony of the first degree within offense level
7;
(D) a felony of the first degree punishable by life
within offense level 9; or
(E) a life felony within offense level 10.
An offense does not become unlisted and subject to the
provisions of section 921.0023 because of a reclassification of the
degree of felony under section 775.0845, section 775.087, section
775.0875, or section 794.023, Florida Statutes, or any other law
that provides an enhanced penalty for a felony offense.
(d) General Rules and Definitions.
(1) One or more Criminal Punishment Code scoresheets
must be prepared for each offender covering all offenses pending
before the court for sentencing, including offenses for which the
offender may qualify as an habitual felony offender, an habitual
violent felony offender, a violent career criminal, or a prison releasee
reoffender. The office of the prosecuting attorney must prepare the
scoresheets and present them to defense counsel for review as to
accuracy. If sentences are imposed under section 775.084, or
section 775.082(9), Florida Statutes, and the Criminal Punishment
Code, a scoresheet listing only those offenses sentenced under the
Criminal Punishment Code must be filed in addition to any
sentencing documents filed under section 775.084 or section
775.082(9).
(2) One scoresheet must be prepared for all offenses
committed under any single version or revision of the guidelines or
Criminal Punishment Code pending before the court for sentencing.
(3) If an offender is before the court for sentencing for
more than 1 felony and the felonies were committed under more
than 1 version or revision of the guidelines or Criminal Punishment
Code, separate scoresheets must be prepared and used at
sentencing. The sentencing court may impose such sentence
concurrently or consecutively.
(4) The sentencing judge must review the scoresheet for
accuracy and sign it.
(5) Felonies, except capital felonies, with continuing
dates of enterprise are to be sentenced under the guidelines or
Criminal Punishment Code in effect on the beginning date of the
criminal activity.
(6) “Conviction” means a determination of guilt that is
the result of a plea or trial, regardless of whether adjudication is
withheld.
(7) “Primary offense” means the offense at conviction
pending before the court for sentencing for which the total sentence
points recommend a sanction that is as severe as, or more severe
than, the sanction recommended for any other offense committed
by the offender and pending before the court at sentencing. Only 1
count of 1 offense before the court for sentencing may be classified
as the primary offense.
(8) “Additional offense” means any offense other than
the primary offense for which an offender is convicted and which is
pending before the court for sentencing at the time of the primary
offense.
(9) “Victim injury” is scored for physical injury or death
suffered by a person as a direct result of any offense pending before
the court for sentencing. Except as otherwise provided by law, the
sexual penetration and sexual contact points will be scored as
follows. Sexual penetration points are scored if an offense pending
before the court for sentencing involves sexual penetration. Sexual
contact points are scored if an offense pending before the court for
sentencing involves sexual contact, but no penetration. If the victim
of an offense involving sexual penetration or sexual contact without
penetration suffers any physical injury as a direct result of an
offense pending before the court for sentencing, that physical injury
must be scored in addition to any points scored for the sexual
contact or sexual penetration.
Victim injury must be scored for each victim physically
injured and for each offense resulting in physical injury whether
there are 1 or more victims. However, victim injury must not be
scored for an offense for which the offender has not been convicted.
Victim injury resulting from 1 or more capital offenses
before the court for sentencing must not be included on any
scoresheet prepared for non-capital offenses also pending before the
court for sentencing. This does not prohibit the scoring of victim
injury as a result of the non-capital offense or offenses before the
court for sentencing.
(10) Unless specifically provided otherwise by statute,
attempts, conspiracies, and solicitations must be indicated in the
space provided on the Criminal Punishment Code scoresheet and
must be scored at 1 severity level below the completed offense.
Attempts, solicitations, and conspiracies of third-degree
felonies located in offense severity levels 1 and 2 must be scored as
misdemeanors. Attempts, solicitations, and conspiracies of third-
degree felonies located in offense severity levels 3, 4, 5, 6, 7, 8, 9,
and 10 must be scored as felonies 1 offense level beneath the
incomplete or inchoate offense.
(11) An increase in offense severity level may result from
a reclassification of felony degrees under sections 775.0845,
775.087, 775.0875, or 794.023, Florida Statutes. Any such
increase must be indicated in the space provided on the Criminal
Punishment Code scoresheet.
(12) A single assessment of 30 prior serious felony
points is added if the offender has a primary offense or any
additional offense ranked in level 8, 9, or 10 and 1 or more prior
serious felonies. A “prior serious felony” is an offense in the
offender’s prior record ranked in level 8, 9, or 10 and for which the
offender is serving a sentence of confinement, supervision, or other
sanction or for which the offender’s date of release from
confinement, supervision, or other sanction, whichever is later, is
within 3 years before the date the primary offense or any additional
offenses were committed. Out-of-state convictions wherein the
analogous or parallel Florida offenses are located in offense severity
level 8, 9, or 10 must be considered prior serious felonies.
(13) If the offender has 1 or more prior capital felonies,
points must be added to the subtotal sentence points of the
offender equal to twice the number of points the offender receives
for the primary offense and any additional offense. Out-of-state
convictions wherein the analogous or parallel Florida offenses are
capital offenses must be considered capital offenses for purposes of
operation of this section.
(14) “Prior record” refers to any conviction for an offense
committed by the offender prior to the commission of the primary
offense. Prior record includes convictions for offenses committed by
the offender as an adult or as a juvenile, convictions by federal, out-
of-state, military, or foreign courts and convictions for violations of
county or municipal ordinances that incorporate by reference a
penalty under state law. Federal, out-of-state, military or foreign
convictions are scored at the severity level at which the analogous
or parallel Florida crime is located.
(A) Convictions for offenses committed more than
10 years before the date of the commission of the primary offense
must not be scored as prior record if the offender has not been
convicted of any other crime for a period of 10 consecutive years
from the most recent date of release from confinement, supervision,
or other sanction, whichever is later, to the date of the commission
of the primary offense.
(B) Juvenile dispositions of offenses committed by
the offender within 5 years before the date of the commission of the
primary offense must be scored as prior record if the offense would
have been a crime if committed by an adult. Juvenile dispositions of
sexual offenses committed by the offender more than 5 years before
the date of the primary offense must be scored as prior record if the
offender has not maintained a conviction-free record, either as an
adult or as a juvenile, for a period of 5 consecutive years from the
most recent date of release from confinement, supervision, or
sanction, whichever is later, to the date of commission of the
primary offense.
(C) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or a disposition other
than conviction must not be scored. Criminal history records
expunged or sealed under section 943.058, Florida Statutes, or
other provisions of law, including former sections 893.14 and
901.33, Florida Statutes, must be scored as prior record where the
offender whose record has been expunged or sealed is before the
court for sentencing.
(D) Any uncertainty in the scoring of the offender’s
prior record must be resolved in favor of the offender and
disagreement as to the propriety of scoring specific entries in the
prior record must be resolved by the sentencing judge.
(E) When unable to determine whether the
conviction to be scored as prior record is a felony or a
misdemeanor, the conviction must be scored as a misdemeanor.
When the degree of felony is ambiguous or the severity level cannot
be determined, the conviction must be scored at severity level 1.
(15) “Legal status points” are assessed when an offender:
(A) escapes from incarceration;
(B) flees to avoid prosecution;
(C) fails to appear for a criminal proceeding;
(D) violates any condition of a supersedeas bond;
(E) is incarcerated;
(F) is under any form of a pretrial intervention or
diversion program; or
(G) is under any form of court-imposed or post-
prison release community supervision and commits an offense that
results in conviction. Legal status violations receive a score of 4
sentence points and are scored when the offense committed while
under legal status is before the court for sentencing. Points for a
legal status violation must only be assessed once regardless of the
existence of more than 1 form of legal status at the time an offense
is committed or the number of offenses committed while under any
form of legal status.
(16) Community sanction violation points occur when
the offender is found to have violated a condition of:
(A) probation;
(B) community control; or
(C) pretrial intervention or diversion.
Community sanction violation points are assessed when a
community sanction violation is before the court for sentencing. Six
community sanction violation points must be assessed for each
violation or if the violation results from a new felony conviction, 12
community sanction violation points must be assessed. For
violations occurring on or after March 12, 2007, if the community
sanction violation that is not based on a failure to pay fines, costs,
or restitution is committed by a violent felony offender of special
concern as defined in section 948.06, Florida Statutes, 12
community sanction violation points must be assessed or if the
violation results from a new felony conviction, 24 community
sanction points must be assessed. Where there are multiple
violations, points may be assessed only for each successive violation
that follows a continuation of supervision, or modification or
revocation of the community sanction before the court for
sentencing and are not to be assessed for violation of several
conditions of a single community sanction. Multiple counts of
community sanction violations before the sentencing court may not
be the basis for multiplying the assessment of community sanction
violation points.
(17) Possession of a firearm, semiautomatic firearm, or a
machine gun during the commission or attempt to commit a crime
will result in additional sentence points. Eighteen sentence points
are assessed if the offender is convicted of committing, or
attempting to commit, any felony other than those enumerated in
subsection 775.087(2), Florida Statutes, while having in the
offender’s possession a firearm as defined in subsection 790.001(6),
Florida Statutes. Twenty-five sentence points are assessed if the
offender is convicted of committing or attempting to commit any
felony other than those enumerated in subsection 775.087(3),
Florida Statutes, while having in the offender’s possession a
semiautomatic firearm as defined in subsection 775.087(3), Florida
Statutes, or a machine gun as defined in subsection 790.001(9),
Florida Statutes. Only 1 assessment of either 18 or 25 points can be
made.
(18) “Subtotal sentence points” are the sum of the
primary offense points, the total additional offense points, the total
victim injury points, the total prior record points, any legal status
points, community sanction points, prior serious felony points,
prior capital felony points, and points for possession of a firearm or
semiautomatic weapon.
(19) If the primary offense is drug trafficking under
section 893.135, Florida Statutes, ranked in offense severity level 7
or 8, the subtotal sentence points may be multiplied, at the
discretion of the sentencing court, by a factor of 1.5.
(20) If the primary offense is a violation of subsection
775.0823(2), (3), or (4), Florida Statutes, the subtotal sentence
points are multiplied by 2.5. If the primary offense is a violation of
subsection 775.0823(5), (6), (7), (8), or (9), Florida Statutes, the
subtotal sentence points are multiplied by 2.0. If the primary
offense is a violation of subsection 784.07(3) or 775.0875(1), Florida
Statutes, or subsection 775.0823(10) or (11), Florida Statutes, the
subtotal sentence points are multiplied by 1.5.
(21) If the primary offense is grand theft of the third
degree of a motor vehicle and the offender’s prior record includes 3
or more grand thefts of the third degree of a motor vehicle, the
subtotal sentence points are multiplied by 1.5.
(22) If the offender is found to have committed the
offense for the purpose of benefitting, promoting, or furthering the
interests of a criminal gang under section 874.04, Florida Statutes,
at the time of the commission of the primary offense, the subtotal
sentence points are multiplied by 1.5.
(23) If the primary offense is a crime of domestic violence
as defined in section 741.28, Florida Statutes, which was
committed in the presence of a child under 16 years of age who is a
family household member as defined in section 741.28(2), Florida
Statutes, with the victim or perpetrator, the subtotal sentence
points are multiplied by 1.5.
(24) (A) Adult on minor sex offense. The subtotal
sentence points are multiplied by 2.0 if:
(i) the offender was 18 years of age or older
and the victim was younger than 18 years of age at the time the
offender committed the primary offense; and
(ii) the primary offense was committed on or
after October 1, 2014, and is a violation of:
a. section 787.01(2) (kidnapping) or
787.02(2) (false imprisonment), Florida Statutes, if in the course of
committing the kidnapping or false imprisonment the defendant
committed a sexual battery under chapter 794, Florida Statutes, or
a lewd act under section 800.04 or 847.0135(5), Florida Statutes,
against the victim;
b. section 787.01(3)(a)2. or (3)(a)3.,
Florida Statutes, (kidnapping of a child under 13 with a sexual
battery or lewd act);
c. section 787.02(3)(a)2. or (3)(a)3.,
Florida Statutes, (false imprisonment of a child under 13 with a
sexual battery or lewd act);
d. section 794.011, Florida Statutes,
(sexual battery), excluding section 794.011(10);
e. section 800.04, Florida Statutes,
(lewd or lascivious offenses); or
f. section 847.0135(5), Florida
Statutes, (lewd or lascivious exhibition using a computer).
(B) Notwithstanding subdivision (d)(24)(A), the
court may not apply the multiplier and must sentence the
defendant to the statutory maximum sentence if applying the
multiplier results in the lowest permissible sentence exceeding the
statutory maximum sentence for the primary offense under chapter
775, Florida Statutes.
(25) If the primary offense is aggravated animal cruelty
under section 828.12(2), Florida Statutes, that included the
knowing and intentional torture or torment of an animal that
injured, mutilated, or killed the animal, the subtotal sentence
points are multiplied by 1.25. As used in this paragraph, the term
“animal” does not include an animal used for agricultural purposes
or permitted as captive wildlife as authorized under section
379.303, Florida Statutes.
(26) If the primary offense is fleeing or attempting to
elude a law enforcement officer or aggravated fleeing or eluding in
violation of section 316.1935, Florida Statutes, and in the offender’s
prior record, there is 1 or more violations of section 316.1935, the
subtotal sentence points are multiplied by 1.5.
(27) “Total sentence points” are the subtotal sentence
points or the enhanced subtotal sentence points.
(28) The lowest permissible sentence is the minimum
sentence that may be imposed by the trial court, absent a valid
reason for departure. The lowest permissible sentence is any
nonstate prison sanction in which the total sentence points equals
or is less than 44 points, unless the court determines within its
discretion that a prison sentence, which may be up to the statutory
maximums for the offenses committed, is appropriate. When the
total sentence points exceeds 44 points, the lowest permissible
sentence in prison months must be calculated by subtracting 28
points from the total sentence points and decreasing the remaining
total by 25 percent. The total sentence points must be calculated
only as a means of determining the lowest permissible sentence.
The maximum sentence for each individual felony offense is the
statutory maximum as provided in section 775.082, Florida
Statutes, unless the lowest permissible sentence exceeds the
statutory maximum for that offense. If the lowest permissible
sentence exceeds the statutory maxmum for an individual felony
offense, the lowest permissible sentence replaces the statutory
maximum and must be imposed for that offense. Sentences for
multiple felony offenses may be imposed concurrently or
consecutively, However, any sentence to state prison must exceed 1
year. If the total sentence points are greater than or equal to 363,
the court may sentence the offender to life imprisonment.
(29) The sentence imposed must be entered on the
scoresheet.
(30) For those offenses having a mandatory minimum
sentence, a scoresheet must be completed and the lowest
permissible sentence under the Code calculated. If the lowest
permissible sentence is less than the mandatory minimum
sentence, the mandatory minimum sentence takes precedence. If
the lowest permissible sentence exceeds the mandatory sentence,
the requirements of the Criminal Punishment Code and any
mandatory minimum penalties apply. Mandatory minimum
sentences must be recorded on the scoresheet.
(31) Any downward departure from the lowest
permissible sentence, as calculated according to the total sentence
points under section 921.0024, Florida Statutes, is prohibited
unless there are circumstances or factors that reasonably justify
the downward departure. Circumstances or factors that can be
considered include, but are not limited to, those listed in subsection
921.0026(2), Florida Statutes.
(A) If a sentencing judge imposes a sentence that
is below the lowest permissible sentence, it is a departure sentence
and must be accompanied by a written statement by the sentencing
court delineating the reasons for the departure, filed within 7 days
after the date of sentencing. A written transcription of orally stated
reasons for departure articulated at the time sentence was imposed
is sufficient if it is filed by the court within 7 days after the date of
sentencing. The sentencing judge may also list the written reasons
for departure in the space provided on the Criminal Punishment
Code scoresheet.
(B) The written statement delineating the reasons
for departure must be made a part of the record. The written
statement, if it is a separate document, must accompany the
scoresheet required to be provided to the Department of Corrections
under subsection 921.0024(6), Florida Statutes.
If a split sentence is imposed, the total sanction (incarceration
and community control or probation) must not exceed the term
provided by general law or the maximum sentence under the
Criminal Punishment Code.
(32) If the lowest permissible sentence under the
criminal punishment code is a state prison sanction but the total
sentencing points do not exceed 48 points (or 54 points if 6 of those
points are for a violation of probation, community control, or other
community supervision that does not involve a new crime), the
court may sentence the defendant to probation, community control,
or community supervision with mandatory participation in a prison
diversion program, as provided for in section 921.00241, Florida
Statutes, if the defendant meets the requirements for that program
as set forth in section 921.00241, Florida Statutes.
(33) If the total sentence points equal 22 or less, the
court must sentence the offender to a nonstate prison sanction
unless it makes written findings that a nonstate prison sanction
could present a danger to the public. Unless there is a stipulation,
there must be a finding by the jury that a nonstate prison sanction
could present a danger to the public before the court may sentence
a defendant to prison under section 775.082(10), Florida Statutes.
(34) Sentences imposed after revocation of probation or
community control must be imposed according to the sentencing
law applicable at the time of the commission of the original offense.
Committee Note
The terms must and shall, as used in this rule, are mandatory
and not permissive.
2001 Amendment. 3.704(d)(14)(B). The definition of “prior
record” was amended to include juvenile dispositions of offenses
committed within 5 years prior to the date of the commission of the
primary offense. “Prior record” was previously defined to include
juvenile disposition of offenses committed within 3 years prior to
the date of the commission of the primary offense. This amendment
reflects the legislative change to section 921.0021, Florida Statutes,
effective July 1, 2001. This new definition of prior record applies to
primary offenses committed on or after July 1, 2001.
2023 Amendment. The Committee proposed the amendments
to subdivision (d)(26) based on the Court’s opinion in State v.
Gabriel, 314 So. 3d 1243 (Fla. 2021).
RULE 3.710 cases. PRESENTENCE REPORT
(a) Cases In Which Court Has Discretion. In all cases in
which the court has discretion as to what sentence may be
imposed, the court may refer the case to the Department of
Corrections for investigation and recommendation. No sentence or
sentences other than probation or the statutorily required
mandatory minimum may be imposed on any defendant found
guilty of a first felony offense or found guilty of a felony while under
the age of 18 years, until after such investigation has first been
made and the recommendations of the Department of Corrections
received and considered by the sentencing judge. The requirements
of this subdivision are not applicable to a subsequent violation of
probation proceeding.
(b) Capital Defendant Who Refuses To Present Mitigation
Evidence. Should a defendant in a capital case choose not to
challenge the death penalty and refuse to present mitigation
evidence, the court shall refer the case to the Department of
Corrections for the preparation of a presentence report. The report
shall be comprehensive and should include information such as
previous mental health problems (including hospitalizations), school
records, and relevant family background.
Committee Notes
1972 Adoption. The rule provides for the utilization of a pre-
sentence report as part of the sentencing process. While use of the
report is discretionary in all cases, it is mandatory in two instances,
the sentencing of a first felony offender and of a defendant under 18
years of age. Of course, no report is necessary where the specific
sentence is mandatory, e.g., the sentence of death or life
imprisonment in a verdict of first degree murder.
1988 Amendment. This amendment changes wording to
conform with current responsibility of the Department of
Corrections to prepare the presentence investigation and report.
2004 Amendment. The amendment adds subdivision (b).
Section 948.015, Florida Statutes, is by its own terms inapplicable
to those cases described in this new subdivision. Nonetheless,
subdivision (b) requires a report that is “comprehensive.”
Accordingly, the report should include, if reasonably available, in
addition to those matters specifically listed in Muhammad v. State,
782 So. 2d 343, 363 (Fla. 2000), a description of the status of all of
the charges in the indictment as well as any other pending offenses;
the defendant’s medical history; and those matters listed in sections
948.015 (3)–(8) and (13), Florida Statutes. The Department of
Corrections should not recommend a sentence.
2018 Amendment. The amendment modifies subdivision (a).
The rule makes clear that a report is not required prior to
sentencing in violation of probation proceedings following the ruling
in Barber v. State, 293 So. 2d 710 (Fla. 1974).
RULE 3.711 cases. PRESENTENCE REPORT: WHEN PREPARED
(a) Except as provided in subdivision (b), the sentencing
court shall not authorize the commencement of the presentence
investigation until there has been a finding of guilt.
(b) The sentencing court may authorize the commencement
of the presentence investigation prior to finding of guilt if:
(1) the defendant has consented to such action; and
(2) nothing disclosed by the presentence investigation
comes to the attention of the prosecution, the court, or the jury
prior to an adjudication of guilt. Upon motion of the defense and
prosecution, the court may examine the presentence investigation
prior to the entry of a plea.
Committee Notes
1972 Adoption. The rule permits presentence investigations
to be initiated prior to finding of guilt. Its purpose is to reduce
unwarranted jail time by a defendant who expects to plead guilty
and who may well merit probation or commitment to facilities other
than prison.
RULE 3.712 cases. PRESENTENCE REPORT: DISCLOSURE
The presentence investigation shall not be a public record and
shall be available only to the following persons under the following
stated conditions:
(a) To the sentencing court to assist it in determining an
appropriate sentence.
(b) To persons or agencies having a legitimate professional
interest in the information that it would contain.
(c) To reviewing courts if relevant to an issue on which an
appeal has been taken.
(d) To the parties as rule 3.713 provides.
Committee Notes
1972 Amendment. Provides for disclosure of the report to the
trial court, appropriate agencies of the state, and appellate courts, if
needed.
RULE 3.713 cases. PRESENTENCE INVESTIGATION DISCLOSURE:
PARTIES
(a) The trial judge may disclose any of the contents of the
presentence investigation to the parties prior to sentencing. Any
information so disclosed to one party shall be disclosed to the
opposing party.
(b) The trial judge shall disclose all factual material,
including but not limited to the defendant’s education, prior
occupation, prior arrests, prior convictions, military service, and the
like, to the defendant and the state a reasonable time prior to
sentencing. If any physical or mental evaluations of the defendant
have been made and are to be considered for the purposes of
sentencing or release, such reports shall be disclosed to counsel for
both parties.
(c) On motion of the defendant or the prosecutor or on its
own motion, the sentencing court may order the defendant to
submit to a mental or physical examination that would be relevant
to the sentencing decision. Copies of the examination or any other
examination to be considered for the purpose of sentencing shall be
disclosed to counsel for the parties subject to the limitation of rule
3.713(b).
Committee Notes
1972 Adoption. This rule represents a compromise between
the philosophy that presentence investigations should be fully
disclosed to a defendant and the objection that such disclosure
would dry up sources of confidential information and render such
report virtually useless. (a) gives the trial judge discretion to
disclose any or all of the report to the parties. (b) makes mandatory
the disclosure of factual and physical and mental evaluation
material only. In this way, it is left to the discretion of the trial judge
to disclose to a defendant or defendant’s counsel any other
evaluative material. The judicial discretion should amply protect the
confidentiality of those sources who do not wish to be disclosed,
while the availability of all factual material will permit the defendant
to discover and make known to the sentencing court any errors that
may appear in the report.
RULE 3.720 cases. SENTENCING HEARING
As soon as practicable after the determination of guilt and
after the examination of any presentence reports, the sentencing
court shall order a sentencing hearing. At the hearing:
(a) The court shall inform the defendant of the finding of
guilt against the defendant and of the judgment and ask the
defendant whether there is any legal cause to show why sentence
should not be pronounced. The defendant may allege and show as
legal cause why sentence should not be pronounced only:
(1) that the defendant is insane;
(2) that the defendant has been pardoned of the offense
for which he or she is about to be sentenced;
(3) that the defendant is not the same person against
whom the verdict or finding of the court or judgment was rendered;
or
(4) if the defendant is a woman and sentence of death
is to be pronounced, that she is pregnant.
(b) The court shall entertain submissions and evidence by
the parties that are relevant to the sentence.
(c) In cases where guilt was determined by plea, the court
shall inform itself, if not previously informed, of the existence of
plea discussions or agreements and the extent to which they involve
recommendations as to the appropriate sentence.
(d) (1) The court must address imposition of fees and costs
pursuant to section 938.29, Florida Statutes. Judgment must be
entered against the defendant in the amount of such fees and costs
imposed. The court must give any notice of, and afford the
defendant an opportunity to contest, any amounts exceeding the
statutory minimum.
(2) If the defendant requests a hearing to contest the
amount of the fees and costs exceeding the statutory minimum, the
court must set a hearing date within 30 days of sentencing.
(e) At the sentencing hearing, the court must make a
determination if restitution is applicable. The amount and method
of restitution is to be determined as provided by law. Copies of the
restitution order shall be provided to the defendant, attorney for the
defendant, state attorney, and victim.
Committee Notes
1968 Adoption (of Rule 3.730). A revamped version of
section 921.08, Florida Statutes.
1972 Amendment. 3.720(a): Substantially the same as former
rule 3.730. 3.720(b): The defendant is to be permitted to challenge
factual bases for the sentence that the defendant believes to be
incorrect. When possible, submissions should be done informally,
but the rule does not preclude an evidentiary hearing if it should be
necessary. 3.720(c): Provides for plea discussions to be made a part
of the record.
1980 Amendment. Modification of the rule by the addition of
(d)(1) and (d)(2) requires a trial judge to adequately inform a
defendant of the imposition of a lien for public defender services. A
uniform procedure for scheduling hearings to contest liens would
reduce the number of postsentence petitions from incarcerated
defendants at times remote from sentencing. The procedure is
designed to complete all lien requirements established by section
27.56, Florida Statutes, before defendants are removed from the
jurisdiction of the trial court.
RULE 3.721 cases. RECORD OF THE PROCEEDINGS
The sentencing court shall ensure that a record of the entire
sentencing proceeding is made and preserved in such a manner
that it can be transcribed as needed.
Committee Notes
1972 Adoption. New, providing for a record of the sentencing
proceeding.
RULE 3.730 cases. ISSUANCE OF CAPIAS WHEN NECESSARY TO
BRING DEFENDANT BEFORE COURT
Whenever the court deems it necessary to do so in order to
procure the presence of the defendant before it for the adjudication
of guilt or the pronouncement of sentence, or both, when the
defendant is not in custody, it shall direct the clerk to issue
immediately or when directed by the prosecuting attorney a capias
for the arrest of the defendant. Subsequent capiases may be issued
from time to time by direction of the court or the prosecuting
attorney.
Committee Notes
1968 Adoption (of Rule 3.710). A revamped version of
section 921.06, Florida Statutes, adding provision that defendant
be required to be present at the adjudication of guilt.
1972 Amendment. Same as prior rule 3.710.
RULE 3.750 cases. PROCEDURE WHEN PARDON IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING SENTENCE
When the cause alleged for not pronouncing sentence is that
the defendant has been pardoned for the offense for which the
defendant is about to be sentenced, the court, if necessary, shall
postpone the pronouncement of sentence for the purpose of hearing
evidence on the allegation. If the court decides that the allegation is
true, it shall discharge the defendant from custody unless the
defendant is in custody on some other charge. If, however, it
decides that the allegation is not true, it shall proceed to pronounce
sentence.
Committee Notes
1968 Adoption. A revamped version of section 921.10, Florida
Statutes.
1972 Amendment. Same as prior rule.
RULE 3.760 cases. PROCEDURE WHEN NONIDENTITY IS ALLEGED
AS CAUSE FOR NOT PRONOUNCING SENTENCE
When the cause alleged for not pronouncing sentence is that
the person brought before the court to be sentenced is not the same
person against whom the verdict, finding of the court, or judgment
was rendered, the court, if necessary, shall postpone the
pronouncement of sentence for the purpose of hearing evidence on
the allegation. If the court decides that the allegation is true, it shall
discharge the person from custody unless the person is in custody
on some other charge. If, however, it decides that the allegation is
not true, it shall proceed to pronounce sentence.
Committee Notes
1968 Adoption. A revamped version of section 921.11, Florida
Statutes.
1972 Amendment. Same as prior rule.
RULE 3.770 cases. PROCEDURE WHEN PREGNANCY IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING DEATH
SENTENCE
When pregnancy of a defendant is alleged as the cause for not
pronouncing the death sentence, the court shall postpone the
pronouncement of sentence until after it has decided the truth of
that allegation. If necessary in order to arrive at such a decision, it
shall immediately fix a time for a hearing to determine whether the
defendant is pregnant and shall appoint not exceeding 3 competent
disinterested physicians to examine the defendant as to the
defendant’s alleged pregnancy and to testify at the hearing as to
whether the defendant is pregnant. Other evidence regarding
whether the defendant is pregnant may be introduced at the
hearing by either party. If the court decides that the defendant is
not pregnant, it shall proceed to pronounce sentence. If it decides
that the defendant is pregnant, it shall commit the defendant to
prison until it appears that the defendant is not pregnant and shall
then pronounce sentence.
Committee Notes
1968 Adoption. A revamped version of section 921.12, Florida
Statutes.
Note that the rule omits the statutory provisions for the
payment of fees to the examining physicians. The supreme court
probably does not have the power to make rules governing such
matters.
1972 Amendment. Same as prior rule.
RULE 3.780 cases. SENTENCING HEARING FOR CAPITAL CASES
(a) Evidence. In capital sentence proceedings the state and
defendant will be permitted to present evidence of an aggravating or
mitigating nature, consistent with the requirements of the statute
and the notice requirements of Florida Rule of Criminal Procedure
3.181. Each side will be permitted to cross-examine the witnesses
presented by the other side. The state will present evidence first.
(b) Rebuttal. The trial judge shall permit rebuttal testimony.
(c) Opening Statement and Closing Argument. Both the
state and the defendant will be given an equal opportunity for one
opening statement and one closing argument. The state will proceed
first.
Committee Notes
1977 Adoption. This is a new rule designed to create a
uniform procedure that will be consistent with both section
921.141, Florida Statutes, and State v. Dixon, 283 So. 2d 1 (Fla.
1973).
RULE 3.781 cases. SENTENCING HEARING TO CONSIDER THE
IMPOSITION OF A LIFE SENTENCE FOR
JUVENILE OFFENDERS
(a) Application. The courts shall use the following
procedures in sentencing a juvenile offender for an offense which
was committed after July 1, 2014, if the conviction may result in a
sentence of life imprisonment or a term of years equal to life
imprisonment, or for resentencing any juvenile offender whose
sentence is determined to be unconstitutional pursuant to the
United States Supreme Court’s decision in Miller v. Alabama, 132 S.
Ct. 2455, 2469 (2012) or Graham v. Florida, 560 U.S. 48 (2010).
(b) Procedure; Evidentiary Hearing. After a determination
of guilt for an offense punishable under sections 775.082(1)(b),
775.082(3)(a)5., 775.082(3)(b)2., or 775.082(3)(c), Florida Statutes,
and after the examination of any presentence reports, the
sentencing court shall order a sentencing hearing to be held
pursuant to rules 3.720 and 3.721. The sentencing court shall
allow the state and the juvenile offender to present evidence
relevant to the offense, the juvenile offender’s youth, and attendant
circumstances, including, but not limited to those enumerated in
section 921.1401(2), Florida Statutes. Additionally, the court shall
allow the state and the juvenile offender to present evidence
relevant to whether or not the juvenile offender killed, intended to
kill, or attempted to kill the victim.
(c) Findings.
(1) The court shall make specific findings on the record
that all relevant factors have been reviewed and considered by the
court prior to imposing a sentence of life imprisonment or a term of
years equal to life imprisonment. The court shall make written
findings as to whether the juvenile offender is eligible for a sentence
review hearing under sections 921.1402(2)(a), (2)(b), or (2)(c),
Florida Statutes, based on whether the juvenile offender killed,
attempted to kill, or intended to kill the victim. If the juvenile
offender is found eligible for a sentence review hearing, the court
shall issue a written order specifying:
(A) which subsection of section 921.1402(2),
Florida Statutes, applies;
(B) when the juvenile offender is eligible to apply
for a sentence review hearing; and
(C) that subsection 921.1402(3), Florida Statutes,
required the Department of Corrections to notify the juvenile
offender when he or she will be eligible to apply for a sentence
review hearing.
(2) A juvenile offender who is convicted of an offense
punishable under section 775.082(1)(b)1., Florida Statutes, shall
not be eligible for a sentence review hearing if the trial court finds
that the juvenile offender has previously been convicted of one of
the enumerated offenses, or conspiracy to commit one of the
enumerated offenses, found in section 921.1402(2)(a), Florida
Statutes.
(3) A copy of the written findings shall be made a part
of the commitment packet for the Department of Corrections.
RULE 3.790 cases. PROBATION AND COMMUNITY CONTROL
(a) Suspension of the Pronouncement and Imposition of
Sentence; Probation or Community Control. Pronouncement and
imposition of sentence of imprisonment shall not be made on a
defendant who is to be placed on probation, regardless of whether
the defendant has been adjudicated guilty. An order of the court
placing a person on probation or community control shall place the
probationer to be supervised under the authority of the Department
of Corrections or such other entity as provided by law. The court
shall specify the length of time during which the defendant is to be
supervised.
(b) Revocation of Probation or Community Control;
Judgment; Sentence.
(1) Generally. Except as otherwise provided in
subdivisions (b)(2) and (b)(3) below, when a probationer or a
community controllee is brought before a court of competent
jurisdiction charged with a violation of probation or community
control, the court shall advise the person of the charge and, if the
charge is admitted to be true, may immediately enter an order
revoking, modifying, or continuing the probation or community
control. If the violation of probation or community control is not
admitted by the probationer or community controllee, the court may
commit the person or release the person with or without bail to
await further hearing or it may dismiss the charge of violation of
probation or community control. If the charge is not admitted by
the probationer or community controllee and if it is not dismissed,
the court, as soon as practicable, shall give the probationer or
community controllee an opportunity to be fully heard in person, by
counsel, or both. After the hearing, the court may enter an order
revoking, modifying, or continuing the probation or community
control. Following a revocation of probation or community control,
the trial court shall adjudicate the defendant guilty of the crime
forming the basis of the probation or community control if no such
adjudication has been made previously. Pronouncement and
imposition of sentence then shall be made on the defendant.
(2) Lunsford Act Proceedings. When a probationer or
community controllee is arrested for violating his or her probation
or community control in a material respect and is under
supervision for any criminal offense proscribed in chapter 794,
Florida Statutes, section 800.04(4), Florida Statutes, section
800.04(5), Florida Statutes, section 800.04(6), Florida Statutes,
section 827.071, Florida Statutes, or section 847.0145, Florida
Statutes, or is a registered sexual predator or a registered sexual
offender, or is under supervision for a criminal offense for which,
but for the effective date, he or she would meet the registration
criteria of section 775.21, Florida Statutes, section 943.0435,
Florida Statutes, or section 944.607, Florida Statutes, the court
must make a finding that the probationer or community controllee
is not a danger to the public prior to release with or without bail.
(A) The hearing to determine whether the
defendant is a danger to the public shall be conducted by a court of
competent jurisdiction no sooner than 24 hours after arrest. The
time for conducting the hearing may be extended at the request of
the accused, or at the request of the state upon a showing of good
cause.
(B) At the hearing, the defendant shall have the
right to be heard in person or through counsel, to present witnesses
and evidence, and to cross-examine witnesses.
(C) In determining the danger posed by the
defendant’s release, the court may consider:
(i) the nature and circumstances of the
violation and any new offenses charged;
(ii) the defendant’s past and present
conduct, including convictions of crimes;
(iii) any record of arrests without conviction
for crimes involving violence or sexual crimes;
(iv) any other evidence of allegations of
unlawful sexual conduct or the use of violence by the defendant;
(v) the defendant’s family ties, length of
residence in the community, employment history, and mental
condition;
(vi) the defendant’s history and conduct
during the probation or community control supervision from which
the violation arises and any other previous supervisions, including
disciplinary records of previous incarcerations;
(vii) the likelihood that the defendant will
engage again in a criminal course of conduct;
(viii) the weight of the evidence against the
defendant; and
(ix) any other facts the court considers
relevant.
(3) Anti-Murder Act Proceedings. The provisions of this
subdivision shall control over any conflicting provisions in
subdivision (b)(2). When a probationer or community controllee is
arrested for violating his or her probation or community control in a
material respect and meets the criteria for a violent felony offender
of special concern, or for certain other related categories of offender,
as set forth in section 948.06(8), Florida Statutes, the defendant
shall be brought before the court that granted the probation or
community control and, except when the alleged violation is based
solely on the defendant’s failure to pay costs, fines, or restitution,
shall not be granted bail or any other form of pretrial release prior
to the resolution of the probation or community control violation
hearing.
(A) The court shall not dismiss the probation or
community control violation warrant pending against the defendant
without holding a recorded violation hearing at which both the state
and the accused are represented.
(B) If, after conducting the hearing, the court
determines that the defendant has committed a violation of
probation or community control other than a failure to pay costs,
fines, or restitution, the court shall make written findings as to
whether the defendant poses a danger to the community. In
determining the danger to the community posed by the defendant’s
release, the court shall base its findings on one or more of the
following:
(i) The nature and circumstances of the
violation and any new offenses charged;
(ii) The defendant’s present conduct,
including criminal convictions;
(iii) The defendant’s amenability to
nonincarcerative sanctions based on his or her history and conduct
during the probation or community control supervision from which
the violation hearing arises and any other previous supervisions,
including disciplinary records of previous incarcerations;
(iv) The weight of the evidence against the
defendant; and
(v) Any other facts the court considers
relevant.
(C) If the court finds that the defendant poses a
danger to the community, the court shall revoke probation or
community control and sentence the defendant up to the statutory
maximum, or longer if permitted by law.
(D) If the court finds that the defendant does not
pose a danger to the community, the court may revoke, modify, or
continue the probation or community control or may place the
probationer into community control as provided in section 948.06,
Florida Statutes.
Committee Notes
1968 Adoption. Subdivisions (a) and (b) contain the
procedural aspects of section 948.01(1), (2), and (3), Florida
Statutes. It should be noted that in (b) provision is made for no
pronouncements in addition to no imposition of sentence prior to
the granting of probation. The terminology in section 948.01(3),
Florida Statutes, is that the trial court shall “withhold the
imposition of sentence.” The selected terminology is deemed
preferable to the present statutory language since the latter is
apparently subject to misconstruction whereby a sentence may be
pronounced and merely the execution of the sentence is suspended.
The Third District Court of Appeal has indicated that the
proper procedure to be followed is that probation be granted prior to
sentencing. A sentence, therefore, is not a prerequisite of probation.
See Yates v. Buchanan, 170 So. 2d 72 (Fla. 3d DCA 1964); also see
Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958), decided by the
First District Court of Appeal to the same effect.
While a trial court initially can set a probationary period at
less than the maximum allowed by law, this period may be
extended to the maximum prior to the expiration of the initially-set
probationary period. Pickman v. State, 155 So. 2d 646 (Fla. 1st DCA
1963). This means, therefore, that any specific time set by the court
as to the probationary period is not binding if the court acts timely
in modifying it. It is clear, in view of the foregoing, that if a trial
judge pronounces a definite sentence and then purports to suspend
its execution and place the defendant on probation for the period of
time specified in the sentence, matters may become unduly
complicated.
If such procedure is considered to be nothing more than an
informal manner of suspending the imposition of sentence and thus
adhering to present statutory requirements, it should be noted that
the time specified in the “sentence” is not binding on the court with
reference to subsequent modification, if timely action follows. On
the other hand, if the action of the trial court is considered strictly,
it would be held to be void as not in conformity with statutory
requirements.
A probationary period is not a sentence, and any procedure
that tends to mix them is undesirable, even if this mixture is
accomplished by nothing more than the terminology used by the
trial court in its desire to place a person on probation. See sections
948.04 and 948.06(1), Florida Statutes, in which clear distinctions
are drawn between the period of a sentence and the period of
probation.
(c) Contains the procedural aspects of section 948.06(1),
Florida Statutes.
1972 Amendment. (a) of former rule deleted, as its substance
is now contained in rules 3.710, 3.711, and 3.713. Former
subdivisions (b) and (c) are now renumbered (a) and (b) respectively.
1988 Amendment. This amendment changes wording to
conform with current responsibilities of the Department of
Corrections to supervise a person placed on either probation or
community control and brings community control within the scope
of the rule.
RULE 3.800 cases. CORRECTION, REDUCTION, AND MODIFICATION
OF SENTENCES
(a) Correction.
(1) Generally. A court may at any time correct an illegal
sentence imposed by it, or an incorrect calculation made by it in a
sentencing scoresheet, when it is affirmatively alleged that the court
records demonstrate on their face an entitlement to that relief,
provided that a party may not file a motion to correct an illegal
sentence under this subdivision during the time allowed for the
filing of a motion under subdivision (b)(1) or during the pendency of
a direct appeal.
(2) Successive Motions. A court may dismiss a second
or successive motion if the court finds that the motion fails to allege
new or different grounds for relief and the prior determination was
on the merits. When a motion is dismissed under this subdivision,
a copy of that portion of the files and records necessary to support
the court’s ruling must accompany the order dismissing the motion.
(3) Sexual Predator Designation. A defendant may seek
correction of an allegedly erroneous sexual predator designation
under this subdivision, but only when it is apparent from the face
of the record that the defendant did not meet the criteria for
designation as a sexual predator.
(4) Appeals. All orders denying or dismissing motions
under subdivision (a) must include a statement that the defendant
has the right to appeal within 30 days of rendition of the order.
(b) Motion to Correct Sentencing Error. A motion to
correct any sentencing error, including an illegal sentence or
incorrect jail credit, may be filed as allowed by this subdivision.
This subdivision shall not be applicable to those cases in which the
death sentence has been imposed and direct appeal jurisdiction is
in the supreme court under article V, section 3(b)(1) of the Florida
Constitution. The motion must identify the error with specificity
and provide a proposed correction. A response to the motion may be
filed within 15 days, either admitting or contesting the alleged error.
Motions may be filed by the state under this subdivision only if the
correction of the sentencing error would benefit the defendant or to
correct a scrivener’s error.
(1) Motion Before Appeal. During the time allowed for
the filing of a notice of appeal of a sentence, a defendant or the
state may file a motion to correct a sentencing error.
(A) This motion shall stay rendition under Florida
Rule of Appellate Procedure 9.020(h).
(B) Unless the trial court determines that the
motion can be resolved as a matter of law without a hearing, it shall
hold a calendar call no later than 20 days from the filing of the
motion, with notice to all parties, for the express purpose of either
ruling on the motion or determining the need for an evidentiary
hearing. If an evidentiary hearing is needed, it shall be set no more
than 20 days from the date of the calendar call. Within 60 days
from the filing of the motion, the trial court shall file an order ruling
on the motion. A party may file a motion for rehearing of any
signed, written order entered under subdivisions (a) and (b) of this
rule within 15 days of the date of service of the order or within 15
days of the expiration of the time period for filing an order if no
order is filed. A response may be filed within 10 days of service of
the motion. The trial court’s order disposing of the motion for
rehearing shall be filed within 15 days of the response but not later
than 40 days from the date of the order of which rehearing is
sought. A timely filed motion for rehearing shall toll rendition of the
order subject to appellate review and the order shall be deemed
rendered upon the filing of a signed, written order denying the
motion for rehearing.
(2) Motion Pending Appeal. If an appeal is pending, a
defendant or the state may file in the trial court a motion to correct
a sentencing error. The motion may be filed by appellate counsel
and must be served before the party’s first brief is served. A notice
of pending motion to correct sentencing error shall be filed in the
appellate court, which notice automatically shall extend the time for
the filing of the brief until 10 days after the clerk of circuit court
transmits the supplemental record under Florida Rule of Appellate
Procedure 9.140(f)(6).
(A) The motion shall be served on the trial court
and on all trial and appellate counsel of record. Unless the motion
expressly states that appellate counsel will represent the movant in
the trial court, trial counsel will represent the movant on the motion
under Florida Rule of Appellate Procedure 9.140(d). If the state is
the movant, trial counsel will represent the defendant unless
appellate counsel for the defendant notifies trial counsel and the
trial court that he or she will represent the defendant on the state’s
motion.
(B) The trial court shall resolve this motion in
accordance with the procedures in subdivision (b)(1)(B), except that
if the trial court does not file an order ruling on the motion within
60 days, the motion shall be deemed denied. Similarly, if the trial
court does not file an order ruling on a timely motion for rehearing
within 40 days from the date of the order of which rehearing is
sought, the motion for rehearing shall be deemed denied.
(C) In accordance with Florida Rule of Appellate
Procedure 9.140(f)(6), the clerk of circuit court shall supplement the
appellate record with the motion, the order, any amended sentence,
and, if designated, a transcript of any additional portion of the
proceedings.
(c) Reduction and Modification. A court may reduce or
modify to include any of the provisions of chapter 948, Florida
Statutes, a legal sentence imposed by it, sua sponte, or upon
motion filed, within 60 days after the imposition, or within 60 days
after receipt by the court of a mandate issued by the appellate court
on affirmance of the judgment and/or sentence on an original
appeal, or within 60 days after receipt by the court of a certified
copy of an order of the appellate court dismissing an original appeal
from the judgment and/or sentence, or, if further appellate review
is sought in a higher court or in successively higher courts, within
60 days after the highest state or federal court to which a timely
appeal has been taken under authority of law, or in which a petition
for certiorari has been timely filed under authority of law, has
entered an order of affirmance or an order dismissing the appeal
and/or denying certiorari. If review is upon motion, the trial court
shall have 90 days from the date the motion is filed or such time as
agreed by the parties or as extended by the trial court to enter an
order ruling on the motion. This subdivision shall not be applicable
to those cases in which the death sentence is imposed or those
cases in which the trial judge has imposed the minimum mandatory
sentence or has no sentencing discretion.
Committee Notes
1968 Adoption. Same as sections 921.24 and 921.25, Florida
Statutes. Similar to Federal Rule of Criminal Procedure 35.
1972 Amendment. Same as prior rule.
1977 Amendment. This amendment provides a uniform time
within which a defendant may seek a reduction in sentence and
excludes death and minimum mandatory sentences from its
operation.
1980 Amendment. Permits the sentencing judge, within the
60–day time period, to modify as well as to reduce the sentence
originally imposed. Such modification would permit the judge to
impose, in the modification, any sentence which could have been
imposed initially, including split sentence or probation. The trial
judge may not, in such modification, increase the original sentence.
1996 Amendments. Subdivision (b) was added and existing
subdivision (b) was renumbered as subdivision (c) in order to
authorize the filing of a motion to correct a sentence or order of
probation, thereby providing a vehicle to correct sentencing errors
in the trial court and to preserve the issue should the motion be
denied. A motion filed under subdivision (b) is an authorized motion
which tolls the time for filing the notice of appeal. The presence of a
defendant who is represented by counsel would not be required at
the hearing on the disposition of such a motion if it only involved a
question of law.
2000 Amendment. The amendment to subdivision (a) is
intended to conform the rule with State v. Mancino, 714 So. 2d 429
(Fla. 1998).
Court Commentary
1999 Amendments. Rule 3.800(b) was substantially rewritten
to accomplish the goals of the Criminal Appeal Reform Act of 1996
(Ch. 96-248, Laws of Fla.). As revised, this rule permits the filing of
a motion during the initial stages of an appeal. A motion pursuant
to this rule is needed only if the sentencing error has not been
adequately preserved for review at an earlier time in the trial court.
The State may file a motion to correct a sentencing error
pursuant to rule 3.800(b) only if the correction of that error will
benefit the defendant or correct a scrivener’s error. This amendment
is not intended to alter the substantive law of the State concerning
whether a change to the defendant’s sentence violates the
constitutional prohibition against double jeopardy. See, e.g.,
Cheshire v. State, 568 So. 2d 908 (Fla. 1990); Goene v. State, 577
So. 2d 1306, 1309 (Fla. 1991); Troupe v. Rowe, 283 So. 2d 857, 859
(Fla. 1973).
A scrivener’s error in this context describes clerical or
ministerial errors in a criminal case that occur in the written
sentence, judgment, or order of probation or restitution. The term
scrivener’s error refers to a mistake in the written sentence that is
at variance with the oral pronouncement of sentence or the record
but not those errors that are the result of a judicial determination
or error. See, e.g., Allen v. State, 739 So. 2d 166 (Fla. 3d DCA 1999)
(correcting a “scrivener’s error” in the written order that adjudicated
the appellant in contempt for “jailing polygraph exam”); Pressley v.
State, 726 So. 2d 403 (Fla. 2d DCA 1999) (correcting scrivener’s
error in the sentencing documents that identified the defendant as
a habitual offender when he was not sentenced as a habitual
offender); Ricks v. State, 725 So. 2d 1205 (Fla. 2d DCA 1999)
(correcting scrivener’s error that resulted from the written sentence
not identifying the defendant as a habitual offender although the
court had orally pronounced a habitual offender sentence), review
denied, 732 So. 2d 328 (Fla. 1999); McKee v. State, 712 So. 2d 837
(Fla. 2d DCA 1998) (remanding for the trial court to determine
whether a scrivener’s error occurred where the written order of
probation imposed six years’ probation, which conflicted with the
written sentence and the trial court minutes that reflected only five
years’ probation had been imposed); Florczak v. State, 712 So. 2d
467, 467 (Fla. 4th DCA 1998) (correcting a scrivener’s error in the
judgment of conviction where the defendant was acquitted of grand
theft but the written judgment stated otherwise); Stombaugh v.
State, 704 So. 2d 723, 725-26 (Fla. 5th DCA 1998) (finding a
scrivener’s error occurred where the State had nol prossed a count
of the information as part of plea bargain but the written sentence
reflected that the defendant was sentenced under that count). But
see Carridine v. State, 721 So. 2d 818, 819 (Fla. 4th DCA 1998)
(trial court’s failure to sign written reasons for imposing an upward
departure sentence did not constitute a scrivener’s error that could
be corrected nunc pro tunc by the trial court), and cases cited
therein.
When a trial court determines that an evidentiary hearing is
necessary to resolve a factual issue, it is possible that the court will
need to utilize the entire 60–day period authorized by this rule.
However, trial courts and counsel are strongly encouraged to
cooperate to resolve these motions as expeditiously as possible
because they delay the appellate process. For purposes of this rule,
sentencing errors include harmful errors in orders entered as a
result of the sentencing process. This includes errors in orders of
probation, orders of community control, cost and restitution orders,
as well as errors within the sentence itself.
2015 Amendments. The amendment to rule 3.800(a)(2) is not
intended to render inapplicable the “manifest injustice” exception as
described in State v. McBride, 848 So. 2d 287 (Fla. 2003).
RULE 3.801 cases. CORRECTION OF JAIL CREDIT
(a) Correction of Jail Credit. A court may correct a final
sentence that fails to allow a defendant credit for all of the time he
or she spent in the county jail before sentencing as provided in
section 921.161, Florida Statutes.
(b) Time Limitations. No motion shall be filed or considered
pursuant to this rule if filed more than 1 year after the sentence
becomes final.
(c) Contents of Motion. The motion shall be under oath
and include:
(1) a brief statement of the facts relied on in support of
the motion;
(2) the dates, location of incarceration, and total time
for credit already provided;
(3) the dates, location of incarceration, and total time
for credit the defendant contends was not properly awarded;
(4) whether any other criminal charges were pending at
the time of the incarceration noted in subdivision (c)(3), and if so,
the location, case number, and resolution of the charges; and
(5) whether the defendant waived any county jail credit
at the time of sentencing, and if so, the number of days waived.
(d) Successive Motions. No successive motions for jail
credit will be considered.
(e) Incorporation of Portions of Florida Rule of Criminal
Procedure 3.850. The following subdivisions of Florida Rule of
Criminal Procedure 3.850 apply to proceedings under this rule:
3.850(e), (f), (j), (k), and (n).
Court Commentary
2013 Adoption. All jail credit issues must be handled
pursuant to this rule. The rule is intended to require that jail credit
issues be dealt with promptly, within 1 year of the sentence
becoming final. No successive motions for jail credit will be allowed.
2016 Amendment. The 2016 amendment clarifies that rule
3.801 applies to final sentences. Prior to the sentence being final,
defendants may avail themselves of all appropriate proceedings to
litigate a jail credit issue, including direct appeal if properly
preserved, a motion for rehearing, or a motion pursuant to rule
3.800(b).
RULE 3.802 cases. REVIEW OF SENTENCES FOR JUVENILE
OFFENDERS
(a) Application. A juvenile offender, as defined in section
921.1402(1), Florida Statutes, may seek a modification of sentence
under section 921.1402, Florida Statutes, by submitting an
application to the trial court requesting a sentence review hearing.
(b) Time for Filing. An application for sentence review may
not be filed until the juvenile offender becomes eligible under
section 921.1402(2), Florida Statutes. A juvenile offender becomes
eligible:
(1) after 25 years, if the juvenile offender is sentenced
to life under section 775.082(1)(b)1., Florida Statutes, or to a term
of more than 25 years under sections 775.082(3)(a)5.a. or
775.082(3)(b)2.a., Florida Statutes;
(2) after 20 years, if the juvenile offender is sentenced
to a term of 20 years or more under section 775.082(3)(c), Florida
Statutes; or
(3) after 15 years, if the juvenile offender is sentenced
to a term of more than 15 years under sections 775.082(1)(b)2.,
775.082(3)(a)5.b., or 775.082(3)(b)2.b., Florida Statutes.
(c) Contents of Application. The application must state
that the juvenile offender is eligible for sentence review and include:
(1) a copy of the judgment and sentence, or a
statement containing the following:
(A) the date of sentencing;
(B) the offense for which the juvenile offender was
sentenced;
(C) the sentence imposed; and
(2) whether a previous application has been filed, the
date of filing of the application, and the disposition of that
application.
(d) Procedure; Evidentiary Hearing; Disposition. On
application from an eligible juvenile offender, the trial court must
hold a sentence review hearing to determine whether the juvenile
offender’s sentence should be modified. If the application, files, and
records in the case conclusively show that the applicant does not
qualify as a juvenile offender under section 921.1402(1), Florida
Statutes, or that the application is premature, the court may deny
the application without a hearing, and must attach such
documents to the order. If an application is denied as premature,
the denial must be without prejudice.
(1) At the sentence review hearing, the court must
consider the following factors when determining if it is appropriate
to modify the juvenile offender’s sentence:
(A) whether the juvenile offender demonstrates
maturity and rehabilitation;
(B) whether the juvenile offender remains at the
same level of risk to society as he or she did at the time of the initial
sentencing;
(C) the opinion of the victim or the victim’s next of
kin;
(D) whether the juvenile offender was a relatively
minor participant in the criminal offense or acted under extreme
duress or the domination of another person;
(E) whether the juvenile offender has shown
sincere and sustained remorse for the criminal offense;
(F) whether the juvenile offender’s age, maturity,
and psychological development at the time of the offense affected
his or her behavior;
(G) whether the juvenile offender has successfully
obtained a general educational development certificate or completed
another educational, technical, work, vocational, or self-
rehabilitation program, if such a program is available;
(H) whether the juvenile offender was a victim of
sexual, physical, or emotional abuse before he or she committed the
offense;
(I) the results of any mental health assessment,
risk assessment, or evaluation of the juvenile offender as to
rehabilitation; and
(J) any other factor the court deems appropriate.
(2) If the court determines at a sentence review hearing
that the juvenile offender has been rehabilitated and is reasonably
believed to be fit to reenter society, the court must modify the
sentence and impose a term of probation of at least 5 years. If the
court determines that the juvenile offender has not demonstrated
rehabilitation, or is not fit to reenter society, the court must issue a
written order stating the reasons why the sentence is not being
modified.
(e) Rehearing. Any party may file a motion for rehearing of
any order addressing a motion under this rule within 15 days of the
date of service of the order. A motion for rehearing is not required to
preserve any issue for review in the appellate court. A motion for
rehearing must be based on a good faith belief that the court has
overlooked a previously argued issue of fact or law or an argument
based on a legal precedent or statute not available prior to the
court’s ruling. A response may be filed within 10 days of service of
the motion. The trial court’s order disposing of the motion for
rehearing must be filed within 15 days of the response but not later
than 40 days from the date of the order of which rehearing is
sought.
(f) Successive Applications. A second or successive
application must be denied without a hearing, except under the
following circumstances:
(1) the initial application was denied as premature; or
(2) under section 921.1402(2)(d), Florida Statutes, the
initial application was submitted by a juvenile offender sentenced to
a term of 20 years or more under section 775.082(3)(c), Florida
Statutes, and more than 10 years has elapsed since the initial
sentence review hearing.
(g) Jurisdiction. The sentencing court retains original
jurisdiction for the duration of the sentence for the purpose of a
sentence review hearing.
(h) Right to Counsel. A juvenile offender who is eligible for a
sentence review hearing under section 921.1402(5), Florida
Statutes, is entitled to be represented by counsel, and the court
must appoint a public defender to represent the juvenile offender if
the juvenile offender cannot afford an attorney.
XV. EXECUTION OF SENTENCE
RULE 3.810 cases. COMMITMENT OF DEFENDANT; DUTY OF
SHERIFF
On pronouncement of a sentence imposing a penalty other
than a fine only or death, the court shall, unless the execution of
the sentence is suspended or stayed, and, in such case, on
termination of the suspension or stay, immediately commit the
defendant to the custody of the sheriff. The commitment documents
must include certified copies of the sentence, the judgment of
conviction, and the indictment or information. If the sheriff is not
the proper official to execute the sentence, the sheriff will transfer
the prisoner, with certified copies of the commitment documents to
the custody of the official whose duty it is to execute the sentence
and shall take from that person a receipt for the defendant that will
be returned to the court.
Committee Notes
1968 Adoption. Substantially the same as section 922.01,
Florida Statutes. There has been added to the rule the requirement
that, if the commitment is to the state prison, it shall be
accompanied by a certified copy of the judgment of conviction and a
certified copy of the indictment or information. (Section 944.18,
Florida Statutes, requires a certified copy of the indictment or
information to be transmitted to the Division of Corrections; the
Division of Corrections should also have a certified copy of the
judgment.)
1972 Amendment. Same as prior rule.
RULE 3.811 cases. INSANITY AT TIME OF EXECUTION: CAPITAL
CASES
(a) Insanity to Be Executed. A person under sentence of
death shall not be executed while insane to be executed.
(b) Insanity Defined. A person under sentence of death is
insane for purposes of execution if the person lacks the mental
capacity to understand the fact of the impending execution and the
reason for it.
(c) Stay of Execution. No motion for a stay of execution
pending hearing, based on grounds of the prisoner’s insanity to be
executed, shall be entertained by any court until such time as the
Governor of Florida shall have held appropriate proceedings for
determining the issue pursuant to the appropriate Florida Statutes.
(d) Motion for Stay after Governor’s Determination of
Sanity to Be Executed. On determination of the Governor of
Florida, subsequent to the signing of a death warrant for a prisoner
under sentence of death and pursuant to the applicable Florida
Statutes relating to insanity at time of execution, that the prisoner
is sane to be executed, counsel for the prisoner may move for a stay
of execution and a hearing based on the prisoner’s insanity to be
executed.
(1) The motion shall be filed in the circuit court of the
circuit in which the execution is to take place and shall be heard by
one of the judges of that circuit or such other judge as shall be
assigned by the chief justice of the supreme court to hear the
motion. The state attorney of the circuit shall represent the State of
Florida in any proceedings held on the motion.
(2) The motion shall be in writing and shall contain a
certificate of counsel that the motion is made in good faith and on
reasonable grounds to believe that the prisoner is insane to be
executed.
(3) Counsel for the prisoner shall file, along with the
motion, all reports of experts that were submitted to the governor
pursuant to the statutory procedure for executive determination of
sanity to be executed. If any of the evidence is not available to
counsel for the prisoner, counsel shall attach to the motion an
affidavit so stating, with an explanation of why the evidence is
unavailable.
(4) Counsel for the prisoner and the state may submit
such other evidentiary material and written submissions including
reports of experts on behalf of the prisoner as shall be relevant to
determination of the issue.
(5) A copy of the motion and all supporting documents
shall be served on the Florida Department of Legal Affairs and the
state attorney of the circuit in which the motion has been filed.
(e) Order Granting. If the circuit judge, upon review of the
motion and submissions, has reasonable grounds to believe that
the prisoner is insane to be executed, the judge shall grant a stay of
execution and may order further proceedings which may include a
hearing pursuant to rule 3.812.
Committee Notes
1988 Adoption. This rule is not intended to preclude the
Office of the Attorney General or the state attorney of the circuit in
which the trial was held from appearing on behalf of the State of
Florida under circumstances when permitted by law.
RULE 3.812 cases. HEARING ON INSANITY AT TIME OF
EXECUTION: CAPITAL CASES
(a) Hearing on Insanity to Be Executed. The hearing on
the prisoner’s insanity to be executed shall not be a review of the
governor’s determination, but shall be a hearing de novo.
(b) Issue at Hearing. At the hearing the issue shall be
whether the prisoner presently meets the criteria for insanity at
time of execution, that is, whether the prisoner lacks the mental
capacity to understand the fact of the pending execution and the
reason for it.
(c) Procedure. The court may do any of the following as may
be appropriate and adequate for a just resolution of the issues
raised:
(1) require the presence of the prisoner at the hearing;
(2) appoint no more than 3 disinterested mental health
experts to examine the prisoner with respect to the criteria for
insanity to be executed and to report their findings and conclusions
to the court; or
(3) enter such other orders as may be appropriate to
effectuate a speedy and just resolution of the issues raised.
(d) Evidence. At hearings held pursuant to this rule, the
court may admit such evidence as the court deems relevant to the
issues, including but not limited to the reports of expert witnesses,
and the court shall not be strictly bound by the rules of evidence.
(e) Order. If, at the conclusion of the hearing, the court shall
find, by clear and convincing evidence, that the prisoner is insane
to be executed, the court shall enter its order continuing the stay of
the death warrant; otherwise, the court shall deny the motion and
enter its order dissolving the stay of execution.
RULE 3.820 cases. HABEAS CORPUS
(a) Custody Pending Appeal of Order of Denial. When a
defendant has been sentenced, and is actually serving the sentence,
and has not appealed from the judgment or sentence, but seeks a
release from imprisonment by habeas corpus proceedings, and the
writ has been discharged after it has been issued, the custody of
the prisoner shall not be disturbed, pending review by the appellate
court.
(b) Custody Pending Appeal of Order Granting. Pending
review of a decision discharging a prisoner on habeas corpus, the
prisoner shall be discharged on bail, with sureties to be approved as
other bail bonds are approved for the prisoner’s appearance to
answer and abide by the judgment of the appellate court.
Committee Notes
1968 Adoption. Same as section 922.03, Florida Statutes.
1972 Amendment. Same as prior rule, but some terminology
has been changed.
XVI. CRIMINAL CONTEMPT
RULE 3.830 cases. DIRECT CRIMINAL CONTEMPT
A criminal contempt may be punished summarily only if the
court saw or heard the conduct constituting the contempt
committed in the actual presence of the court. The court shall
strictly comply with the following five procedural requirements.
(a) Prior to the adjudication of guilt the judge shall inform
the defendant of the accusation against the defendant and inquire
as to whether the defendant has any cause to show why he or she
should not be adjudged guilty of contempt by the court and
sentenced therefor.
(b) The court shall provide the defendant the opportunity to
present evidence of excusing or mitigating circumstances.
(c) The judgment of guilt of contempt shall include a recital
of those facts on which the adjudication of guilt is based, and
confirm compliance with the five procedural requirements of this
rule.
(d) The judgment shall be signed by the judge and entered of
record.
(e) Sentence shall be pronounced in open court.
If necessary to ensure safety of individuals in the courtroom,
the court may order the defendant be temporarily detained and
removed from the courtroom; however once the danger to
individuals in the courtroom has abated, the defendant should be
returned to the courtroom to allow for the procedures set forth in
this rule.
Committee Notes
1968 Adoption. This proposal is consistent with present
Florida practice in authorizing summary proceedings in direct
criminal contempt cases. See Ballengee v. State, 144 So. 2d 68 (Fla.
2d DCA 1962); Baumgartner v. Joughin, 105 Fla. 334, 141 So. 185
(1932); also see State v. Lehman, 100 Fla. 481, 129 So. 818 (1930),
holding that the defendant is not entitled to notice of the accusation
or a motion for attachment. Fairness dictates that the defendant be
allowed to present excusing or mitigating evidence even in direct
criminal contempt cases.
Much of the terminology of the proposal is patterned after
Federal Rule of Criminal Procedure 42(a) with variations for
purposes of clarity. What may be considered a significant change
from the terminology of the federal rule is that the proposal
provides for a “judgment” of contempt, whereas the term “order” of
contempt is used in the federal rule. Both terms have been used in
Florida appellate cases. The term “judgment” is preferred here since
it is consistent with the procedure of adjudicating guilt and is more
easily reconciled with a “conviction” of contempt, common
terminology on the trial and appellate levels in Florida. It also is
consistent with appeals in contempt cases. See, e.g., State ex rel.
Shotkin v. Buchanan, 149 So. 2d 574, 98 A.L.R.2d 683 (Fla. 3d DCA
1963), for the use of the term “judgment”.
1972 Amendment. Same as prior rule.
RULE 3.840 cases. INDIRECT CRIMINAL CONTEMPT
A criminal contempt, except as provided in rule 3.830
concerning direct contempts, shall be prosecuted in the following
manner:
(a) Order to Show Cause. The judge, on the judge’s own
motion or on affidavit of any person having knowledge of the facts,
may issue and sign an order directed to the defendant, stating the
essential facts constituting the criminal contempt charged and
requiring the defendant to appear before the court to show cause
why the defendant should not be held in contempt of court. The
order shall specify the time and place of the hearing, with a
reasonable time allowed for preparation of the defense after service
of the order on the defendant.
(b) Motions; Answer. The defendant, personally or by
counsel, may move to dismiss the order to show cause, move for a
statement of particulars, or answer the order by way of explanation
or defense. All motions and the answer shall be in writing unless
specified otherwise by the judge. A defendant’s omission to file
motions or answer shall not be deemed as an admission of guilt of
the contempt charged.
(c) Order of Arrest; Bail. The judge may issue an order of
arrest of the defendant if the judge has reason to believe the
defendant will not appear in response to the order to show cause.
The defendant shall be admitted to bail in the manner provided by
law in criminal cases.
(d) Arraignment; Hearing. The defendant may be arraigned
at the time of the hearing, or prior thereto at the defendant’s
request. A hearing to determine the guilt or innocence of the
defendant shall follow a plea of not guilty. The judge may conduct a
hearing without assistance of counsel or may be assisted by the
prosecuting attorney or by an attorney appointed for that purpose.
The defendant is entitled to be represented by counsel, have
compulsory process for the attendance of witnesses, and testify in
his or her own defense. All issues of law and fact shall be heard and
determined by the judge.
(e) Disqualification of Judge. If the contempt charged
involves disrespect to or criticism of a judge, the judge shall
disqualify himself or herself from presiding at the hearing. Another
judge shall be designated by the chief justice of the supreme court.
(f) Verdict; Judgment. At the conclusion of the hearing the
judge shall sign and enter of record a judgment of guilty or not
guilty. There should be included in a judgment of guilty a recital of
the facts constituting the contempt of which the defendant has been
found and adjudicated guilty.
(g) Sentence; Indirect Contempt. Prior to the
pronouncement of sentence, the judge shall inform the defendant of
the accusation and judgment against the defendant and inquire as
to whether the defendant has any cause to show why sentence
should not be pronounced. The defendant shall be afforded the
opportunity to present evidence of mitigating circumstances. The
sentence shall be pronounced in open court and in the presence of
the defendant.
Committee Notes
1968 Adoption.
(a)(1) Order to Show Cause. The courts have used various and,
at times, misleading terminology with reference to this phase of the
procedure, viz. “citation,” “rule nisi,” “rule,” “rule to show cause,”
“information,” “indicted,” and “order to show cause.” Although all
apparently have been used with the same connotation the
terminology chosen probably is more readily understandable than
the others. This term is used in Federal Rule of Criminal Procedure
42(b) dealing with indirect criminal contempts.
In proceedings for indirect contempt, due process of law
requires that the accused be given notice of the charge and a
reasonable opportunity to meet it by way of defense or explanation.
State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So. 2d 509 (1946);
State ex rel. Geary v. Kelly, 137 So d 262, 263 (Fla. 3d DCA 1962).
The petition (affidavit is used here) must be filed by someone
having actual knowledge of the facts and must be under oath.
Phillips v. State, 147 So. 2d 163 (Fla. 3d DCA 1962); see also Croft
v. Culbreath, 150 Fla. 60, 6 So. 2d 638 (1942); Ex parte Biggers, 85
Fla. 322, 95 So. 763 (1923).
(2) Motions; Answer. The appellate courts of Florida, while
apparently refraining from making motions and answers
indispensable parts of the procedure, seem to regard them with
favor in appropriate situations. Regarding motions to quash and
motion for bill of particulars, see Geary v. State, 139 So. 2d 891
(Fla. 3d DCA 1962); regarding the answer, see State ex rel. Huie v.
Lewis, 80 So. 2d 685 (Fla. 1955).
Elsewhere in these rules is a recommended proposal that a
motion to dismiss replace the present motion to quash; hence, the
motion to dismiss is recommended here.
The proposal contains no requirement that the motions or
answer be under oath. Until section 38.22, Florida Statutes, was
amended in 1945 there prevailed in Florida the common law rule
that denial under oath is conclusive and requires discharge of the
defendant in indirect contempt cases; the discharge was considered
as justified because the defendant could be convicted of perjury if
the defendant had sworn falsely in the answer or in a motion
denying the charge. The amendment of section 38.22, Florida
Statutes, however, has been construed to no longer justify the
discharge of the defendant merely because the defendant denies the
charge under oath. See Ex parte Earman, 85 Fla. 297, 95 So. 755
(1923), re the common law; see Dodd v. State, 110 So. 2d 22 (Fla.
3d DCA 1959) re the construction of section 38.22, Florida
Statutes, as amended. There appears, therefore, no necessity of
requiring that a pleading directed to the order to show cause be
under oath, except as a matter of policy of holding potential perjury
prosecutions over the heads of defendants. It is recommended,
therefore, that no oath be required at this stage of the proceeding.
Due process of law in the prosecution for indirect contempt
requires that the defendant have the right to assistance by counsel.
Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932), adhered
to, 107 Fla. 858, 143 So. 436 (1932).
(3) Order of Arrest; Bail. Arrest and bail, although
apparently used only rarely, were permissible at common law and,
accordingly, are unobjectionable under present Florida law. At
times each should serve a useful purpose in contempt proceedings
and should be included in the rule. As to the common law, see Ex
parte Biggers, supra.
(4) Arraignment; Hearing. Provision is made for a pre-
hearing arraignment in case the defendant wishes to plead guilty to
the charge prior to the date set for the hearing. The defendant has a
constitutional right to a hearing under the due process clauses of
the state and federal constitutions. State ex rel. Pipia v. Buchanan,
168 So. 2d 783 (Fla. 3d DCA 1964). This right includes the right to
assistance of counsel and the right to call witnesses. Baumgartner
v. Joughin, supra. The defendant cannot be compelled to testify
against himself. Demetree v. State, ex rel. Marsh, 89 So. 2d 498
(Fla. 1956).
Section 38.22, Florida Statutes, as amended in 1945, provides
that all issues of law or fact shall be heard and determined by the
judge. Apparently under this statute the defendant is not only
precluded from considering a jury trial as a right but also the judge
has no discretion to allow the defendant a jury trial. See State ex
rel. Huie v. Lewis, supra, and Dodd v. State, supra, in which the
court seems to assume this, such assumption seemingly being
warranted by the terminology of the statute.
There is no reason to believe that the statute is
unconstitutional as being in violation of section 11 of the
Declaration of Rights of the Florida Constitution which provides, in
part, that the accused in all criminal prosecutions shall have the
right to a public trial by an impartial jury. Criminal contempt is not
a crime; consequently, no criminal prosecution is involved. Neering
v. State, 155 So. 2d 874 (Fla. 1963); State ex rel. Saunders v. Boyer,
166 So. 2d 694 (Fla. 2d DCA 1964); Ballengee v. State, 144 So. 2d
68 (Fla. 2d DCA 1962).
Section 3 of the Declaration of Rights, providing that the right
of trial by jury shall be secured to all and remain inviolate forever,
also apparently is not violated. This provision has been construed
many times as guaranteeing a jury trial in proceedings at common
law, as practiced at the time of the adoption of the constitution (see,
e.g., Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350 (1926)),
i.e., it is applicable only to cases in which the right existed before
the adoption of the constitution (see, e.g., State ex rel. Sellers v.
Parker, 87 Fla. 181, 100 So. 260 (1924)). Section 3 was never
intended to extend the right of a trial by jury beyond this point.
Boyd v. Dade County, 123 So. 2d 323 (Fla. 1960).
There is some authority that trial by jury in indirect criminal
contempt existed in the early common law, but this practice was
eliminated by the Star Chamber with the result that for centuries
the common law courts have punished indirect contempts without a
jury trial. See 36 Mississippi Law Journal 106. The practice in
Florida to date apparently has been consistent with this position.
No case has been found in this state in which a person was tried by
a jury for criminal contempt. See Justice Terrell’s comment adverse
to such jury trials in State ex rel. Huie v. Lewis, supra.
The United States Supreme Court has assumed the same
position with reference to the dictates of the common law. Quoting
from Eilenbecker v. District Court, 134 U.S. 31, 36, 10 S.Ct. 424, 33
L.Ed. 801 (1890), the Court stated, “If it has ever been understood
that proceedings according to the common law for contempt of
court have been subject to the right of trial by jury, we have been
unable to find any instance of it.” United States v. Barnett, 376 U.S.
681, 696, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964). In answer to the
contention that contempt proceedings without a jury were limited to
trivial offenses, the Court stated, “[W]e find no basis for a
determination that, at the time the Constitution was adopted,
contempt was generally regarded as not extending to cases of
serious misconduct.” 376 U.S. at 701. There is little doubt,
therefore, that a defendant in a criminal contempt case in Florida
has no constitutional right to a trial by jury.
Proponents for such trials seemingly must depend on
authorization by the legislature or Supreme Court of Florida to
attain their objective. By enacting section 38.22, Florida Statutes,
which impliedly prohibits trial by jury the legislature exhibited a
legislative intent to remain consistent with the common law rule. A
possible alternative is for the Supreme Court of Florida to
promulgate a rule providing for such trials and assume the position
that under its constitutional right to govern practice and procedure
in the courts of Florida such rule would supersede section 38.22,
Florida Statutes. It is believed that the supreme court has such
authority. Accordingly, alternate proposals are offered for the
court’s consideration; the first provides for a jury trial unless
waived by the defendant and the alternate is consistent with
present practice.
(5) Disqualification of Judge. Provision for the
disqualification of the judge is made in federal rule 42(b). The
proposal is patterned after this rule.
Favorable comments concerning disqualification of judges in
appropriate cases may be found in opinions of the Supreme Court
of Florida. See Pennekamp v. State, 156 Fla. 227, 22 So. 2d 875
(1945), and concurring opinion in State ex rel Huie v. Lewis, supra.
(6) Verdict; Judgment. “Judgment” is deemed preferable to
the term “order,” since the proper procedure involves an
adjudication of guilty. The use of “judgment” is consistent with
present Florida practice. E.g., Dinnen v. State, 168 So. 2d 703 (Fla.
2d DCA 1964); State ex rel. Byrd v. Anderson, 168 So d 554 (Fla.
1st DCA 1964).
The recital in the judgment of facts constituting the contempt
serves to preserve for postconviction purposes a composite record of
the offense by the person best qualified to make such recital: the
judge. See Ryals v. United States, 69 F.2d 946 (5th Cir. 1934), in
which such procedure is referred to as “good practice.”
(7) Sentence; Indirect Contempt. The substance of this
subdivision is found in present sections 921.05(2), 921.07 and
921.13, Florida Statutes. While these sections are concerned with
sentences in criminal cases, the First District Court of Appeal in
1964 held that unless a defendant convicted of criminal contempt is
paid the same deference the defendant is not being accorded due
process of law as provided in section 12 of the Declaration of Rights
of the Florida Constitution and the Fourteenth Amendment of the
Constitution of the United States. Neering v. State, 164 So. 2d 29
(Fla. 1st DCA 1964).
Statement concerning the effect the adoption of this proposed
rule will have on contempt statutes:
This rule is not concerned with the source of the power of
courts to punish for contempt. It is concerned with desirable
procedure to be employed in the implementation of such power.
Consequently, its adoption will in no way affect the Florida statutes
purporting to be legislative grants of authority to the courts to
punish for contempt, viz., sections 38.22 (dealing with “all” courts),
932.03 (dealing with courts having original jurisdiction in criminal
cases), and 39.13 (dealing with juvenile courts). This is true
regardless of whether the source of power is considered to lie
exclusively with the courts as an inherent power or is subject, at
least in part, to legislative grant.
The adoption of the rule also will leave unaffected the
numerous Florida statutes concerned with various situations
considered by the legislature to be punishable as contempt (e.g.,
section 38.23, Florida Statutes), since these statutes deal with
substantive rather than procedural law.
Section 38.22, Florida Statutes, as discussed in the preceding
notes, is concerned with procedure in that it requires the court to
hear and determine all questions of law or fact. Insofar, therefore,
as criminal contempts are concerned the adoption of the alternate
proposal providing for a jury trial will mean that the rule
supersedes this aspect of the statute and the statute should be
amended accordingly.
1972 Amendment. Same as prior rule.
XVII. POSTCONVICTION RELIEF
RULE 3.850 cases. MOTION TO VACATE; SET ASIDE; OR CORRECT
SENTENCE
(a) Grounds for Motion. The following grounds may be
claims for relief from judgment or release from custody by a person
who has been tried and found guilty or has entered a plea of guilty
or nolo contendere before a court established by the laws of Florida:
(1) the judgment was entered or sentence was imposed
in violation of the Constitution or laws of the United States or the
State of Florida;
(2) the court did not have jurisdiction to enter the
judgment;
(3) the court did not have jurisdiction to impose the
sentence;
(4) the sentence exceeded the maximum authorized by
law;
(5) the plea was involuntary; or
(6) the judgment or sentence is otherwise subject to
collateral attack.
(b) Time Limitations. A motion to vacate a sentence that
exceeds the limits provided by law may be filed at any time. No
other motion shall be filed or considered pursuant to this rule if
filed more than 2 years after the judgment and sentence become
final unless it alleges that:
(1) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and could not
have been ascertained by the exercise of due diligence, and the
claim is made within 2 years of the time the new facts were or could
have been discovered with the exercise of due diligence;
(2) the fundamental constitutional right asserted was
not established within the period provided for herein and has been
held to apply retroactively, and the claim is made within 2 years of
the date of the mandate of the decision announcing the
retroactivity; or
(3) the defendant retained counsel to timely file a 3.850
motion and counsel, through neglect, failed to file the motion. A
claim based on this exception shall not be filed more than 2 years
after the expiration of the time for filing a motion for postconviction
relief.
(c) Contents of Motion. The motion must be under oath
stating that the defendant has read the motion or that it has been
read to him or her, that the defendant understands its content, and
that all of the facts stated therein are true and correct. The motion
must include the certifications required by subdivision (n) of this
rule and must also include an explanation of:
(1) the judgment or sentence under attack and the
court that rendered the same;
(2) whether the judgment resulted from a plea or a
trial;
(3) whether there was an appeal from the judgment or
sentence and the disposition thereof;
(4) whether a previous postconviction motion has been
filed, and if so, how many;
(5) if a previous motion or motions have been filed, the
reason or reasons the claim or claims in the present motion were
not raised in the former motion or motions;
(6) the nature of the relief sought; and
(7) a brief statement of the facts and other conditions
relied on in support of the motion.
This rule does not authorize relief based on grounds that could
have or should have been raised at trial and, if properly preserved,
on direct appeal of the judgment and sentence. If the defendant is
filing a newly discovered evidence claim based on recanted trial
testimony or on a newly discovered witness, the defendant shall
include an affidavit from that person as an attachment to his or her
motion. For all other newly discovered evidence claims, the
defendant shall attach an affidavit from any person whose
testimony is necessary to factually support the defendant’s claim for
relief. If the affidavit is not attached to the motion, the defendant
shall provide an explanation why the required affidavit could not be
obtained.
(d) Form of Motion. Motions shall be typewritten or hand-
written in legible printed lettering, in blue or black ink, double-
spaced, with margins no less than 1 inch on white 8 1/2 by 11 inch
paper. No motion, including any memorandum of law, shall exceed
50 pages without leave of the court upon a showing of good cause.
(e) Amendments to Motion. When the court has entered an
order under subdivision (f)(2) or (f)(3), granting the defendant an
opportunity to amend the motion, any amendment to the motion
must be served within 60 days. A motion may otherwise be
amended at any time prior to either the entry of an order disposing
of the motion or the entry of an order pursuant to subdivision (f)(5)
or directing that an answer to the motion be filed pursuant to (f)(6),
whichever occurs first. Leave of court is required for the filing of an
amendment after the entry of an order pursuant to subdivision (f)(5)
or (f)(6). Notwithstanding the timeliness of an amendment, the court
need not consider new factual assertions contained in an
amendment unless the amendment is under oath. New claims for
relief contained in an amendment need not be considered by the
court unless the amendment is filed within the time frame specified
in subdivision (b).
(f) Procedure; Evidentiary Hearing; Disposition. On filing
of a motion under this rule, the clerk shall forward the motion and
file to the court. Disposition of the motion shall be in accordance
with the following procedures, which are intended to result in a
single, final, appealable order that disposes of all claims raised in
the motion.
(1) Untimely and Insufficient Motions. If the motion is
insufficient on its face, and the time to file a motion under this rule
has expired prior to the filing of the motion, the court shall enter a
final appealable order summarily denying the motion with
prejudice.
(2) Timely but Insufficient Motions. If the motion is
insufficient on its face, and the motion is timely filed under this
rule, the court shall enter a nonfinal, nonappealable order allowing
the defendant 60 days to amend the motion. If the amended motion
is still insufficient or if the defendant fails to file an amended
motion within the time allowed for such amendment, the court, in
its discretion, may permit the defendant an additional opportunity
to amend the motion or may enter a final, appealable order
summarily denying the motion with prejudice.
(3) Timely Motions Containing Some Insufficient Claims.
If the motion sufficiently states 1 or more claims for relief and it
also attempts but fails to state additional claims, and the motion is
timely filed under this rule, the court shall enter a nonappealable
order granting the defendant 60 days to amend the motion to
sufficiently state additional claims for relief. Any claim for which the
insufficiency has not been cured within the time allowed for such
amendment shall be summarily denied in an order that is a
nonfinal, nonappealable order, which may be reviewed when a final,
appealable order is entered.
(4) Motions Partially Disposed of by the Court Record. If
the motion sufficiently states 1 or more claims for relief but the files
and records in the case conclusively show that the defendant is not
entitled to relief as to 1 or more claims, the claims that are
conclusively refuted shall be summarily denied on the merits
without a hearing. A copy of that portion of the files and records in
the case that conclusively shows that the defendant is not entitled
to relief as to 1 or more claims shall be attached to the order
summarily denying these claims. The files and records in the case
are the documents and exhibits previously filed in the case and
those portions of the other proceedings in the case that can be
transcribed. An order that does not resolve all the claims is a
nonfinal, nonappealable order, which may be reviewed when a final,
appealable order is entered.
(5) Motions Conclusively Resolved by the Court Record.
If the motion is legally sufficient but all grounds in the motion can
be conclusively resolved either as a matter of law or by reliance
upon the records in the case, the motion shall be denied without a
hearing by the entry of a final order. If the denial is based on the
records in the case, a copy of that portion of the files and records
that conclusively shows that the defendant is entitled to no relief
shall be attached to the final order.
(6) Motions Requiring a Response from the State
Attorney. Unless the motion, files, and records in the case
conclusively show that the defendant is entitled to no relief, the
court shall order the state attorney to file, within the time fixed by
the court, an answer to the motion. The answer shall respond to the
allegations contained in the defendant’s sufficiently pleaded claims,
describe any matters in avoidance of the sufficiently pleaded claims,
state whether the defendant has used any other available state
postconviction remedies including any other motion under this rule,
and state whether the defendant has previously been afforded an
evidentiary hearing.
(7) Appointment of Counsel. The court may appoint
counsel to represent the defendant under this rule. The factors to
be considered by the court in making this determination include:
the adversary nature of the proceeding, the complexity of the
proceeding, the complexity of the claims presented, the defendant’s
apparent level of intelligence and education, the need for an
evidentiary hearing, and the need for substantial legal research.
(8) Disposition by Evidentiary Hearing.
(A) If an evidentiary hearing is required, the court
shall grant a prompt hearing and shall cause notice to be served on
the state attorney and the defendant or defendant’s counsel, and
shall determine the issues, and make findings of fact and
conclusions of law with respect thereto.
(B) At an evidentiary hearing, the defendant shall
have the burden of presenting evidence and the burden of proof in
support of his or her motion, unless otherwise provided by law.
(C) The order issued after the evidentiary hearing
shall resolve all the claims raised in the motion and shall be
considered the final order for purposes of appeal.
(g) Defendant’s Presence Not Required. The defendant’s
presence shall not be required at any hearing or conference held
under this rule except at the evidentiary hearing on the merits of
any claim.
(h) Successive Motions.
(1) A second or successive motion must be titled:
“Second or Successive Motion for Postconviction Relief.”
(2) A second or successive motion is an extraordinary
pleading. Accordingly, a court may dismiss a second or successive
motion if the court finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or,
if new and different grounds are alleged, the judge finds that the
failure of the defendant or the attorney to assert those grounds in a
prior motion constituted an abuse of the procedure or there was no
good cause for the failure of the defendant or defendant’s counsel to
have asserted those grounds in a prior motion. When a motion is
dismissed under this subdivision, a copy of that portion of the files
and records necessary to support the court’s ruling shall
accompany the order denying the motion.
(i) Service on Parties. The clerk of the court shall promptly
serve on the parties a copy of any order entered under this rule,
noting thereon the date of service by an appropriate certificate of
service.
(j) Rehearing. Any party may file a motion for rehearing of
any order addressing a motion under this rule within 15 days of the
date of service of the order. A motion for rehearing is not required to
preserve any issue for review in the appellate court. A motion for
rehearing must be based on a good faith belief that the court has
overlooked a previously argued issue of fact or law or an argument
based on a legal precedent or statute not available prior to the
court’s ruling. A response may be filed within 10 days of service of
the motion. The trial court’s order disposing of the motion for
rehearing shall be filed within 15 days of the response but not later
than 40 days from the date of the order of which rehearing is
sought.
(k) Appeals. An appeal may be taken to the appropriate
appellate court only from the final order disposing of the motion. All
final orders denying motions for postconviction relief shall include a
statement that the defendant has the right to appeal within 30 days
of the rendition of the order. All nonfinal, nonappealable orders
entered pursuant to subdivision (f) should include a statement that
the defendant has no right to appeal the order until entry of the
final order.
(l) Belated Appeals and Discretionary Review. Pursuant
to the procedures outlined in Florida Rule of Appellate Procedure
9.141, a defendant may seek a belated appeal or discretionary
review.
(m) Habeas Corpus. An application for writ of habeas corpus
on behalf of a prisoner who is authorized to apply for relief by
motion pursuant to this rule shall not be entertained if it appears
that the applicant has failed to apply for relief, by motion, to the
court that sentenced the applicant or that the court has denied the
applicant relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of the applicant’s
detention.
(n) Certification of Defendant; Sanctions. No motion may
be filed pursuant to this rule unless it is filed in good faith and with
a reasonable belief that it is timely, has potential merit, and does
not duplicate previous motions that have been disposed of by the
court.
(1) By signing a motion pursuant to this rule, the
defendant certifies that: the defendant has read the motion or that
it has been read to the defendant and that the defendant
understands its content; the motion is filed in good faith and with a
reasonable belief that it is timely filed, has potential merit, and does
not duplicate previous motions that have been disposed of by the
court; and, the facts contained in the motion are true and correct.
(2) The defendant shall either certify that the defendant
can understand English or, if the defendant cannot understand
English, that the defendant has had the motion translated
completely into a language that the defendant understands. The
motion shall contain the name and address of the person who
translated the motion and that person shall certify that he or she
provided an accurate and complete translation to the defendant.
Failure to include this information and certification in a motion
shall be grounds for the entry of an order dismissing the motion
pursuant to subdivision (f)(1), (f)(2), or (f)(3).
(3) Conduct prohibited under this rule includes, but is
not limited to, the following: the filing of frivolous or malicious
claims; the filing of any motion in bad faith or with reckless
disregard for the truth; the filing of an application for habeas
corpus subject to dismissal pursuant to subdivision (m); the willful
violation of any provision of this rule; and the abuse of the legal
process or procedures governed by this rule.
The court, upon its own motion or on the motion of a party,
may determine whether a motion has been filed in violation of this
rule. The court shall issue an order setting forth the facts indicating
that the defendant has or may have engaged in prohibited conduct.
The order shall direct the defendant to show cause, within a
reasonable time limit set by the court, why the court should not
find that the defendant has engaged in prohibited conduct under
this rule and impose an appropriate sanction. Following the
issuance of the order to show cause and the filing of any response
by the defendant, and after such further hearing as the court may
deem appropriate, the court shall make a final determination of
whether the defendant engaged in prohibited conduct under this
subdivision.
(4) If the court finds by the greater weight of the
evidence that the defendant has engaged in prohibited conduct
under this rule, the court may impose one or more sanctions,
including:
(A) contempt as otherwise provided by law;
(B) assessing the costs of the proceeding against
the defendant;
(C) dismissal with prejudice of the defendant’s
motion;
(D) prohibiting the filing of further pro se motions
under this rule and directing the clerk of court to summarily reject
any further pro se motion under this rule;
(E) requiring that any further motions under this
rule be signed by a member in good standing of The Florida Bar,
who shall certify that there is a good faith basis for each claim
asserted in the motion; and/or
(F) if the defendant is a prisoner, a certified copy
of the order be forwarded to the appropriate institution or facility for
consideration of disciplinary action against the defendant, including
forfeiture of gain time pursuant to Chapter 944, Florida Statutes.
(5) If the court determines there is probable cause to
believe that a sworn motion contains a false statement of fact
constituting perjury, the court may refer the matter to the state
attorney.
Committee Notes
1972 Amendment. Same as prior rule. Former rule 3.860,
previously deleted, now found in article 18, The Florida Bar
Integration Rules.
1977 Amendment. Nothing has been taken from proposed
rule 3.850. Additions have been made. The committee proceeded on
the theory that generally the motions coming under the purview of
the rule were filed by prisoners and will be considered ex parte.
The proposed amendment contemplates that in those cases
where the trial court found the movant entitled to some relief, the
state attorney would be noticed and given an opportunity to be
heard. The rule further contemplates that if the appellate court
reverses, it would do so with directions to conduct a hearing with
notice to all parties.
(a), (b), (c), (d), (e)
The committee was of the opinion that the motion should
contain the minimum prerequisites indicated in the lettered
portions to permit the trial court to quickly ascertain whether or not
the motion was entitled to consideration and, if not, provide for its
return to the movant as unacceptable. This procedure is similar to
federal rules dealing with postconviction motions.
The committee perceives that denial of a motion will either be
based on the insufficiency of the motion itself or on the basis of the
file or record which the trial court will have before it. The proposal
provides for a simplified expeditious disposition of appeals in such
cases. It is to be noted, however, that in those cases where the
record is relied on as a basis for denial of the motion, it may in
exceptional cases involve a substantial record, but the advantages
of this procedure seem to justify coping with the unusual or
exceptional case. It is the opinion of the committee that, in any
order of denial based on the insufficiency of the motion or on the
face of the record, trial courts will set forth specifically the basis of
the court’s ruling with sufficient specificity to delineate the issue for
the benefit of appellate courts.
The committee thought that the provision permitting ex parte
denial of a motion based on the face of the record was appropriate
inasmuch as the movant was granted an opportunity for rehearing
in which to point out any errors the court may have made, thus
providing sufficient safeguards to ensure consideration of the
prisoner’s contentions.
The prisoner or movant’s motion for rehearing will be a part of
the record on appeal, thereby alerting the appellate court to the
movant’s dissatisfaction with the trial court’s ruling.
1984 Amendment. The committee felt that provisions should
be added to allow the court to consider why a subsequent motion
was being filed and whether it was properly filed, similar to Federal
Rule of Criminal Procedure 9(b) or 35.
The committee also felt that the court should have the
authority to order the state to respond to a 3.850 motion by answer
or other pleading as the court may direct.
The committee felt that even if a motion filed under rule 3.850
does not substantially comply with the requirements of the rule, the
motion should still be filed and ruled on by the court. Hence the
former provision authorizing the court to refuse to receive such a
nonconforming motion has been removed and words allowing the
presiding judge to summarily deny a noncomplying motion have
been satisfied.
1992 Amendment. Pursuant to State v. District Court of
Appeal of Florida, First District, 569 So. 2d 439 (Fla. 1990), motions
seeking a belated direct appeal based on the ineffective assistance
of counsel should be filed in the trial court under rule 3.850. Also,
see rule 3.111(e) regarding trial counsel’s duties before withdrawal
after judgment and sentence.
1993 Amendment. This amendment is necessary to make
this rule consistent with rule 3.851.
Court Commentary
1996 Court Commentary. Florida Rule of Judicial
Administration 2.071(b) allows for telephonic and teleconferencing
communication equipment to be utilized “for a motion hearing, a
pretrial conference, or a status conference.” Teleconferencing sites
have been established by the Department of Management Services,
Division of Communications at various metropolitan locations in
the state. The “Shevin Study”1 examined, at this Court’s request,
the issue of delays in capital postconviction relief proceedings and
noted that travel problems of counsel cause part of those delays.
The Court strongly encourages the use of the new telephonic and
teleconferencing technology for postconviction relief proceedings
that do not require evidentiary hearings.
1Letter from Robert L. Shevin “Re: Study of the Capital
Collateral Representative” to Chief Justice Stephen H. Grimes (Feb.
26, 1996) (on file with the Supreme Court of Florida in No. 87,688).
2013 Amendment.
Rule 3.850 has been revised to address several issues
identified by the Postconviction Rules Workgroup in 2006 and by
the Criminal Court Steering Committee and the Subcommittee on
Postconviction Relief in 2011.
Rule 3.850(d). New subdivision (d) is derived from the final
two sentences formerly contained in subdivision (c).
Rule 3.850(e). Subdivision (e) was added to codify existing
case law on amendments to postconviction motions and to comport
with subdivision (f).
Rule 3.850(f). Subdivision (f) attempts to set out each of
the different options that a trial judge has when considering a
motion under this rule. It reflects the timeframe requirement of
subdivision (b) and codifies existing case law regarding timely but
facially insufficient motions, partial orders of denial, and the
appointment of counsel. See, e.g., Spera v. State, 971 So. 2d 754
(Fla. 2007).
Rule 3.850(g). Subdivision (g) was previously contained in
subdivision (e), but the language is largely derived from rule
3.851(c)(3).
Rule 3.850(h). Subdivision (h), formerly rule 3.850(f), was
substantially rewritten.
Rule 3.850(i). Subdivision (i) is substantially the same as
former subdivision (g).
Rule 3.850(j). Subdivision (j) allows both the state and the
defendant the right to rehearing and is intended to allow the court
to correct an obvious error without the expense and delay of a state
appeal. See King v. State, 870 So. 2d 69 (Fla. 2d DCA 2003). The
statement regarding finality is consistent with Florida Rule of
Appellate Procedure 9.020(i) and is intended to clarify the date of
rendition of the final order disposing of any motion under this rule.
Rule 3.850(k). Subdivision (k), formerly rule 3.850(i), was
substantially rewritten to simplify the review process in both the
trial and appellate courts and to provide for the efficient disposition
of all claims in both courts. The requirement of a statement
indicating whether the order is a nonfinal or final order subject to
appeal is intended to ensure that all claims will be disposed of by
the trial court and addressed in a single appeal.
Rule 3.850(l). Subdivision (l), formerly rule 3.850(j), reflects
the consolidation of the subdivision with former rule 3.850(k).
Rule 3.850(n). Subdivision (n) is a substantial rewrite of
former subdivision (m).
RULE 3.851 cases. COLLATERAL RELIEF AFTER DEATH SENTENCE
HAS BEEN IMPOSED AND AFFIRMED ON DIRECT
APPEAL
(a) Scope. This rule applies to all postconviction proceedings
that commence on issuance of the appellate mandate affirming the
death sentence to include all motions and petitions for any type of
postconviction or collateral relief brought by a defendant in state
custody who has been sentenced to death and whose conviction
and death sentence have been affirmed on direct appeal. It applies
to all postconviction motions filed on or after January 1, 2015, by
defendants who are under sentence of death. Motions pending on
that date are governed by the version of this rule in effect
immediately prior to that date.
(b) Appointment of Postconviction Counsel.
(1) On the issuance of the mandate affirming a
judgment and sentence of death on direct appeal, the Supreme
Court of Florida must at the same time issue an order appointing
the appropriate office of the Capital Collateral Regional Counsel or
directing the trial court to immediately appoint counsel from the
Registry of Attorneys maintained by the Justice Administrative
Commission. The name of Registry Counsel must be filed with the
Supreme Court of Florida.
(2) Within 30 days of the issuance of the mandate, the
Capital Collateral Regional Counsel or Registry Counsel must file
either a notice of appearance or a motion to withdraw in the trial
court. Motions to withdraw filed more than 30 days after the
issuance of the mandate must not be entertained unless based on a
conflict of interest as set forth in section 27.703, Florida Statutes.
(3) Within 15 days after Capital Collateral Regional
Counsel or Registry Counsel files a motion to withdraw, the chief
judge or assigned judge must rule on the motion and appoint new
postconviction counsel if necessary. The appointment of new
collateral counsel must be from the Registry of attorneys
maintained by the Justice Administrative Commission unless the
case is administratively transferred to another Capital Collateral
Regional Counsel.
(4) In every capital postconviction case, one lawyer
must be designated as lead counsel for the defendant. The lead
counsel must be the defendant’s primary lawyer in all state court
litigation. No lead counsel is permitted to appear for a limited
purpose on behalf of a defendant in a capital postconviction
proceeding.
(5) After the filing of a notice of appearance, Capital
Collateral Regional Counsel, Registry Counsel, or a private attorney
must represent the defendant in the state courts until a judge
allows withdrawal or until the sentence is reversed, reduced, or
carried out, regardless of whether another attorney represents the
defendant in a federal court.
(6) A defendant who has been sentenced to death may
not represent himself or herself in a capital postconviction
proceeding in state court. The only basis for a defendant who has
been sentenced to death to seek to discharge postconviction counsel
in state court must be pursuant to statute due to an actual conflict
of interest. On a determination of an actual conflict of interest,
conflict-free counsel must be appointed pursuant to statute.
(c) Preliminary Procedures.
(1) Judicial Assignment and Responsibilities. Within 30
days of the issuance of mandate affirming a judgment and sentence
of death on direct appeal, the chief judge must assign the case to a
judge qualified under the Rules of General Practice and Judicial
Administration to conduct capital proceedings. The assigned judge
is responsible for case management to ensure compliance with
statutes, rules, and administrative orders that impose processing
steps, time deadlines, and reporting requirements for capital
postconviction litigation. From the time of assignment, the judge
must issue case management orders for every step of the capital
postconviction process, including at the conclusion of all hearings
and conferences.
(2) Status Conferences. The assigned judge must
conduct a status conference not later than 90 days after the judicial
assignment, and must hold status conferences at least every 90
days thereafter until the evidentiary hearing has been completed or
the motion has been ruled on without a hearing. The attorneys,
with leave of the trial court, may appear by communication
technology at the status conferences. Requests to appear by
communication technology must be liberally granted. Pending
motions, disputes involving public records, or any other matters
ordered by the court must be heard at the status conferences.
(3) Defendant’s Presence Not Required. The defendant’s
presence must not be required at any hearing or conference held
under this rule, except at the evidentiary hearing on the merits of
any claim and at any hearing involving conflict with or removal of
collateral counsel.
(4) Duties of Defense Counsel. Within 45 days of
appointment of postconviction counsel, the defendant’s trial counsel
shall provide to postconviction counsel a copy of the original file
including all work product not otherwise subject to a protective
order and information pertaining to the defendant’s capital case
which was created and obtained during the representation of the
defendant. Postconviction counsel must maintain the confidentiality
of all confidential information received. Postconviction counsel must
bear the costs of any copying. The defendant’s trial counsel must
retain the defendant’s original file.
(5) Record on Direct Appeal. The Clerk of the Circuit
Court must retain a copy of the record for the direct appeal when
the record is transmitted to the Supreme Court of Florida. The
Clerk of the Supreme Court of Florida must promptly deliver the
record on appeal to the records repository within 30 days after the
appointment of postconviction counsel.
(d) Time Limitation.
(1) Any motion to vacate judgment of conviction and
sentence of death must be filed by the defendant within 1 year after
the judgment and sentence become final. For the purposes of this
rule, a judgment is final:
(A) on the expiration of the time permitted to file
in the United States Supreme Court a petition for writ of certiorari
seeking review of the Supreme Court of Florida decision affirming a
judgment and sentence of death (90 days after the opinion becomes
final); or
(B) on the disposition of the petition for writ of
certiorari by the United States Supreme Court, if filed.
(2) No motion may be filed or considered under this
rule if filed beyond the time limitation provided in subdivision (d)(1)
unless it alleges:
(A) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and could not
have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted
was not established within the period provided for in subdivision
(d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed
to file the motion.
(3) All petitions for extraordinary relief in which the
Supreme Court of Florida has original jurisdiction, including
petitions for writs of habeas corpus, must be filed simultaneously
with the initial brief filed on behalf of the death-sentenced
defendant in the appeal of the circuit court’s order on the initial
motion for postconviction relief filed under this rule.
(4) If the governor signs a death warrant before the
expiration of the time limitation in subdivision (d)(1), the Supreme
Court of Florida, on a defendant’s request, will grant a stay of
execution to allow any postconviction relief motions to proceed in a
timely and orderly manner.
(5) An extension of time may be granted by the
Supreme Court of Florida for the filing of postconviction pleadings if
the defendant’s counsel makes a showing that due to exceptional
circumstances, counsel was unable to file the postconviction
pleadings within the 1–year period established by this rule.
(e) Contents of Motion.
(1) Initial Motion. A motion filed under this rule is an
initial postconviction motion if no state court has previously ruled
on a postconviction motion challenging the same judgment and
sentence. An initial motion and memorandum of law filed under
this rule must not exceed 75 pages exclusive of the attachments.
Each claim or subclaim must be separately pled and sequentially
numbered beginning with claim number 1. If on motion or on the
court’s own motion, a judge determines that this portion of the rule
has not been followed, the judge must give the movant 30 days to
amend. If no amended motion is filed, the judge must deem the
non-compliant claim, subclaim, and/or argument waived.
Attachments must include, but are not limited to, the judgment and
sentence. The memorandum of law must set forth the applicable
case law supporting the granting of relief as to each separately pled
claim. This rule does not authorize relief based on claims that could
have or should have been raised at trial and, if properly preserved,
on direct appeal of the judgment and sentence. If claims that were
raised on appeal or should have or could have been raised on
appeal are contained in the motion, the memorandum of law must
contain a brief statement explaining why these claims are being
raised on postconviction relief. The motion need not be under oath
or signed by the defendant but must include:
(A) a description of the judgment and sentence
under attack and the court that rendered the same;
(B) a statement of each issue raised on appeal and
the disposition thereof;
(C) the nature of the relief sought;
(D) a detailed allegation of the factual basis for any
claim for which an evidentiary hearing is sought;
(E) a detailed allegation as to the basis for any
purely legal or constitutional claim for which an evidentiary hearing
is not required and the reason that this claim could not have been
or was not raised on direct appeal; and
(F) a certification from the attorney that he or she
has discussed the contents of the motion fully with the defendant,
that he or she has complied with Rule 4-1.4 of the Rules of
Professional Conduct, and that the motion is filed in good faith.
(2) Successive Motion. A motion filed under this rule is
successive if a state court has previously ruled on a postconviction
motion challenging the same judgment and sentence. A claim raised
in a successive motion must be dismissed if the trial court finds
that it fails to allege new or different grounds for relief and the prior
determination was on the merits; or, if new and different grounds
are alleged, the trial court finds that the failure to assert those
grounds in a prior motion constituted an abuse of the procedure;
or, if the trial court finds there was no good cause for failing to
assert those grounds in a prior motion; or, if the trial court finds
the claim fails to meet the time limitation exceptions set forth in
subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).
A successive motion must not exceed 25 pages, exclusive
of attachments, and must include:
(A) all of the pleading requirements of an initial
motion under subdivision (e)(1);
(B) the disposition of all previous claims raised in
postconviction proceedings and the reason or reasons the claim or
claims raised in the present motion were not raised in the former
motion or motions;
(C) if based on newly discovered evidence, Brady
v. Maryland, 373 U.S. 83 (1963), or Giglio v. United States, 405 U.S.
150 (1972), the following:
(i) the names, addresses, and telephone
numbers of all witnesses supporting the claim;
(ii) a statement that the witness will be
available, should an evidentiary hearing be scheduled, to testify
under oath to the facts alleged in the motion or affidavit;
(iii) if evidentiary support is in the form of
documents, copies of all documents shall be attached, including
any affidavits obtained; and
(iv) as to any witness or document listed in
the motion or attachment to the motion, a statement of the reason
why the witness or document was not previously available.
(f) Procedure; Evidentiary Hearing; Disposition.
(1) Filing and Service. All pleadings in the
postconviction proceeding must be filed with the clerk of the trial
court and served on the assigned judge, opposing party, and the
attorney general. All motions other than the postconviction motion
itself must be accompanied by a notice of hearing.
(2) Duty of Clerk. The clerk must immediately notify the
chief judge or the assigned judge of a motion filed under this rule.
(3) Answer.
(A) Answer to the Initial Motion. Within 60 days of
the filing of an initial motion, the state must file its answer. The
answer and accompanying memorandum of law must not exceed 75
pages, exclusive of attachments and exhibits. The answer must
address the legal insufficiency of any claim in the motion, respond
to the allegations of the motion, and address any procedural bars.
The answer must use the same claim numbering system contained
in the defendant’s initial motion. As to any claims of legal
insufficiency or procedural bar, the state must include a short
statement of any applicable case law.
(B) Answer to a Successive Motion. Within 20 days
of the filing of a successive motion, the state must file its answer.
The answer must not exceed 25 pages, exclusive of attachments
and exhibits. The answer must use the same claim numbering
system contained in the defendant’s motion. The answer must
specifically respond to each claim in the motion and state the
reason(s) that an evidentiary hearing is or is not required.
(4) Amendments. A motion filed under this rule may not
be amended unless good cause is shown. A copy of the claim sought
to be added must be attached to the motion to amend. The trial
court may in its discretion grant a motion to amend provided that
the motion to amend was filed at least 45 days before the scheduled
evidentiary hearing. Granting a motion under this subdivision must
not be a basis for granting a continuance of the evidentiary hearing
unless a manifest injustice would occur if a continuance was not
granted. If amendment is allowed, the state must file an amended
answer within 20 days after the judge allows the motion to be
amended.
(5) Case Management Conference; Evidentiary Hearing.
(A) Initial Postconviction Motion. No later than 90
days after the state files its answer to an initial motion, the trial
court must hold a case management conference. At the case
management conference, the defendant must disclose all
documentary exhibits that he or she intends to offer at the
evidentiary hearing and must file and serve an exhibit list of all
such exhibits and a witness list with the names and addresses of
any potential witnesses. All expert witnesses must be specifically
designated on the witness list and copies of all expert reports must
be attached. Within 60 days after the case management conference,
the state must disclose all documentary exhibits that it intends to
offer at the evidentiary hearing and must file and serve an exhibit
list of all such exhibits and a witness list with the names and
addresses of any potential witnesses. All expert witnesses must be
specifically designated on the witness list and copies of all expert
reports must be attached. At the case management conference, the
trial court must:
(i) schedule an evidentiary hearing, to be
held within 150 days, on claims listed by the defendant as requiring
a factual determination;
(ii) hear argument on any purely legal claims
not based on disputed facts; and
(iii) resolve disputes arising from the
exchange of information under this subdivision.
(B) Successive Postconviction Motion. Within 30
days after the state files its answer to a successive motion for
postconviction relief, the trial court must hold a case management
conference. At the case management conference, the trial court also
must determine whether an evidentiary hearing should be held and
hear argument on any purely legal claims not based on disputed
facts. If the motion, files, and records in the case conclusively show
that the movant is entitled to no relief, the motion may be denied
without an evidentiary hearing. If the trial court determines that an
evidentiary hearing should be held, the court must schedule the
hearing to be held within 90 days. If a death warrant has been
signed, the trial court must expedite these time periods in
accordance with subdivision (h) of this rule.
(C) Extension of Time to Hold Evidentiary Hearing.
The trial court also may for good cause extend the time for holding
an evidentiary hearing for up to 90 days.
(D) Taking Testimony. On motion, or on its own
motion and without the consent of any party, the court may permit
a witness to testify at the evidentiary hearing by contemporaneous
audio-video communication technology that makes the witness
visible to all parties during the testimony. There must be
appropriate safeguards for the court to maintain sufficient control
over the equipment and the transmission of the testimony so the
court may stop the communication to accommodate objections or
prevent prejudice. If testimony is taken through audio- video
communication technology, the oath must be administered in the
manner provided by Florida Rule of General Practice and Judicial
Administration 2.530(b)(2)(B). The cost for the use of audio-video
communication technology is the responsibility of either the
requesting party or, if upon its own motion, the court.
(E) Procedures After Evidentiary Hearing.
Immediately following an evidentiary hearing, the trial court must
order a transcript of the hearing, which must be filed within 10
days if real-time transcription was utilized, or within 45 days if real-
time transcription was not utilized. The trial judge may permit
written closing arguments instead of oral closing arguments. If the
trial court permits the parties to submit written closing arguments,
the arguments must be filed by both parties within 30 days of the
filing of the transcript of the hearing. No answer or reply arguments
are allowed. Written arguments must be in compliance with the
requirements for briefs in rule 9.210(a)(1) and (a)(2), must not
exceed 60 pages without leave of court, and must include proposed
findings of facts and conclusions of law, with citations to authority
and to appropriate portions of the transcript of the hearing.
(F) Rendition of the Order. If the court does not
permit written closing arguments, the court must render its order
within 30 days of the filing of the transcript of the hearing. If the
court permits written closing arguments, the court must render its
order within 30 days of the filing of the last written closing
argument and no later than 60 days from the filing of the transcript
of the hearing. The court must rule on each claim considered at the
evidentiary hearing and all other claims raised in the motion,
making detailed findings of fact and conclusions of law with respect
to each claim, and attaching or referencing such portions of the
record as are necessary to allow for meaningful appellate review.
The order issued after the evidentiary hearing must resolve all the
claims raised in the motion and must be considered the final order
for purposes of appeal. The clerk of the trial court must promptly
serve on the parties and the attorney general a copy of the final
order, with a certificate of service.
(6) Experts and Other Witnesses. All expert witnesses
who will testify at the evidentiary hearing must submit written
reports, which must be disclosed to opposing counsel as provided in
subdivision (f)(5)(A). If the defendant intends to offer expert
testimony of his or her mental status, the state must be entitled to
have the defendant examined by its own mental health expert. If the
defendant fails to cooperate with the state’s expert, the trial court
may, in its discretion, proceed as provided in rule 3.202(e).
(7) Rehearing. Motions for rehearing must be filed
within 15 days of the rendition of the trial court’s order and a
response thereto filed within 10 days thereafter. A motion for
rehearing must be based on a good faith belief that the court has
overlooked a previously argued issue of fact or law or an argument
based on a legal precedent or statute not available prior to the
court’s ruling. The trial court’s order disposing of the motion for
rehearing must be rendered not later than 30 days from the filing of
the motion for rehearing. If no order is filed within 30 days from the
filing of the motion for rehearing, the motion is deemed denied. A
motion for rehearing is not required to preserve any issue for
review.
(8) Appeals. Any party may appeal a final order entered
on a defendant’s motion for rule 3.851 relief by filing a notice of
appeal with the clerk of the lower tribunal within 30 days of the
rendition of the order to be reviewed. Under the procedures outlined
in Florida Rule of Appellate Procedure 9.142, a defendant under
sentence of death may petition for a belated appeal.
(g) Incompetence to Proceed in Capital Collateral
Proceedings.
(1) A death-sentenced defendant pursuing collateral
relief under this rule who is found by the court to be mentally
incompetent must not be proceeded against if there are factual
matters at issue, the development or resolution of which require the
defendant’s input. However, all collateral relief issues that involve
only matters of record and claims that do not require the
defendant’s input must proceed in collateral proceedings
notwithstanding the defendant’s incompetency.
(2) Collateral counsel may file a motion for competency
determination and an accompanying certificate of counsel that the
motion is made in good faith and on reasonable grounds to believe
that the death-sentenced defendant is incompetent to proceed.
(3) If, at any stage of a postconviction proceeding, the
court determines that there are reasonable grounds to believe that a
death-sentenced defendant is incompetent to proceed and that
factual matters are at issue, the development or resolution of which
require the defendant’s input, a judicial determination of
incompetency is required.
(4) The motion for competency examination must be in
writing and must allege with specificity the factual matters at issue
and the reason that competent consultation with the defendant is
necessary with respect to each factual matter specified. To the
extent that it does not invade the lawyer-client privilege with
collateral counsel, the motion must contain a recital of the specific
observations of, and conversations with, the death-sentenced
defendant that have formed the basis of the motion.
(5) If the court finds that there are reasonable grounds
to believe that a death-sentenced defendant is incompetent to
proceed in a postconviction proceeding in which factual matters are
at issue, the development or resolution of which require the
defendant’s input, the court must order the defendant examined by
no more than 3, nor fewer than 2, experts before setting the matter
for a hearing. The court may seek input from the death-sentenced
defendant’s counsel and the state attorney before appointment of
the experts.
(6) The order appointing experts must:
(A) identify the purpose of the evaluation and
specify the area of inquiry that should be addressed;
(B) specify the legal criteria to be applied; and
(C) specify the date by which the report must be
submitted and to whom it must be submitted.
(7) Counsel for both the death-sentenced defendant
and the state may be present at the examination, which must be
conducted at a date and time convenient for all parties and the
Department of Corrections.
(8) On appointment by the court, the experts must
examine the death-sentenced defendant with respect to the issue of
competence to proceed, as specified by the court in its order
appointing the experts to evaluate the defendant, and must
evaluate the defendant as ordered.
(A) The experts first must consider factors related
to the issue of whether the death-sentenced defendant meets the
criteria for competence to proceed, that is, whether the defendant
has sufficient present ability to consult with counsel with a
reasonable degree of rational understanding and whether the
defendant has a rational as well as factual understanding of the
pending collateral proceedings.
(B) In considering the issue of competence to
proceed, the experts must consider and include in their report:
(i) the defendant’s capacity to understand
the adversary nature of the legal process and the collateral
proceedings;
(ii) the defendant’s ability to disclose to
collateral counsel facts pertinent to the postconviction proceeding at
issue; and
(iii) any other factors considered relevant by
the experts and the court as specified in the order appointing the
experts.
(C) Any written report submitted by an expert
must:
(i) identify the specific matters referred for
evaluation;
(ii) describe the evaluative procedures,
techniques, and tests used in the examination and the purpose or
purposes for each;
(iii) state the expert’s clinical observations,
findings, and opinions on each issue referred by the court for
evaluation, and indicate specifically those issues, if any, on which
the expert could not give an opinion; and
(iv) identify the sources of information used
by the expert and present the factual basis for the expert’s clinical
findings and opinions.
(9) If the experts find that the death-sentenced
defendant is incompetent to proceed, the experts must report on
any recommended treatment for the defendant to attain competence
to proceed. In considering the issues relating to treatment, the
experts must report on:
(A) the mental illness or intellectual disability
causing the incompetence;
(B) the treatment or treatments appropriate for the
mental illness or intellectual disability of the defendant and an
explanation of each of the possible treatment alternatives in order of
choices; and
(C) the likelihood of the defendant attaining
competence under the treatment recommended, an assessment of
the probable duration of the treatment required to restore
competence, and the probability that the defendant will attain
competence to proceed in the foreseeable future.
(10) Within 30 days after the experts have completed
their examinations of the death-sentenced defendant, the court
must schedule a hearing on the issue of the defendant’s
competence to proceed.
(11) If, after a hearing, the court finds the defendant
competent to proceed, or, after having found the defendant
incompetent, finds that competency has been restored, the court
must enter its order so finding and proceed with a postconviction
motion. The defendant must have 60 days to amend his or her rule
3.851 motion only as to those issues that the court found required
factual consultation with counsel.
(12) If the court does not find the defendant
incompetent, the order must contain:
(A) findings of fact relating to the issues of
competency;
(B) copies of the reports of the examining experts;
and
(C) copies of any other psychiatric, psychological,
or social work reports submitted to the court relative to the mental
state of the death-sentenced defendant.
(13) If the court finds the defendant incompetent or finds
the defendant competent subject to the continuation of appropriate
treatment, the court must follow the procedures set forth in rule
3.212(c), except that, to the extent practicable, any treatment must
take place at a custodial facility under the direct supervision of the
Department of Corrections.
(h) After Death Warrant Signed.
(1) Judicial Assignment. The chief judge of the circuit
must assign the case to a judge qualified under the Rules of
General Practice and Judicial Administration to conduct capital
cases as soon as notification of the death warrant is received.
(2) Calendar Advancement. Proceedings after a death
warrant has been issued must take precedence over all other cases.
The assigned judge must make every effort to resolve scheduling
conflicts with other cases including cancellation or rescheduling of
hearings or trials and requesting senior judge assistance.
(3) Schedule of Proceedings. The time limitations in this
rule do not apply after a death warrant has been signed. All motions
must be heard expeditiously considering the time limitations set by
the date of execution and the time required for appellate review.
(4) Location of Hearings. The location of hearings after a
death warrant is signed must be determined by the trial judge
considering the availability of witnesses or evidence, the security
problems involved in the case, and any other factor determined by
the trial court.
(5) Postconviction Motions. All motions filed after a
death warrant is issued must be considered successive motions and
subject to the content requirement of subdivision (e)(2) of this rule.
(6) Case Management Conference. The assigned judge
must schedule a case management conference as soon as
reasonably possible after receiving notification that a death warrant
has been signed. During the case management conference the court
must set a time for filing a postconviction motion and must
schedule a hearing to determine whether an evidentiary hearing
should be held and hear argument on any purely legal claims not
based on disputed facts. If the motion, files, and records in the case
conclusively show that the movant is entitled to no relief, the
motion may be denied without an evidentiary hearing. If the trial
court determines that an evidentiary hearing should be held, the
court must schedule the hearing to be held as soon as reasonably
possible considering the time limitations set by the date of
execution and the time required for appellate review.
(7) Reporting. The assigned judge must require the
proceedings conducted under death warrant to be reported using
the most advanced and accurate technology available in general use
at the location of the hearing. The proceedings must be transcribed
expeditiously considering the time limitations set by the execution
date.
(8) Procedures After Hearing. The court must obtain a
transcript of all proceedings and render its order as soon as
possible after the hearing is concluded. A copy of the final order
must be electronically transmitted to the Supreme Court of Florida
and to the attorneys of record.
(9) Transmittal of Record. The record must be
immediately delivered to the clerk of the Supreme Court of Florida
by the clerk of the trial court or as ordered by the assigned judge.
The record must also be electronically transmitted if the technology
is available. A notice of appeal is not required to transmit the
record.
(i) Dismissal of Postconviction Proceedings.
(1) This subdivision applies only when a defendant
seeks to dismiss pending postconviction proceedings.
(2) If the defendant files the motion pro se, the Clerk of
the Court must serve copies of the motion on counsel of record for
both the defendant and the state. Counsel of record may file
responses within 10 days.
(3) The trial judge must review the motion and the
responses and schedule a hearing. The defendant, collateral
counsel, and the state must be present at the hearing.
(4) The judge must examine the defendant at the
hearing and must hear argument of the defendant, collateral
counsel, and the state. No fewer than 2 or more than 3 qualified
experts must be appointed to examine the defendant if the judge
concludes that there are reasonable grounds to believe the
defendant is not mentally competent for purposes of this rule. The
experts must file reports with the court setting forth their findings.
Thereafter, the court must conduct an evidentiary hearing and
enter an order setting forth findings of competency or
incompetency.
(5) If the defendant is found to be incompetent for
purposes of this rule, the court must deny the motion without
prejudice.
(6) If the defendant is found to be competent for
purposes of this rule, the court must conduct a complete inquiry to
determine whether the defendant knowingly, intelligently, and
voluntarily wants to dismiss pending postconviction proceedings.
The colloquy must also address whether the defendant wants to
waive appellate review of the dismissal of postconviction
proceedings, if granted.
(7) If the court determines that the defendant has made
the decision to dismiss pending postconviction proceedings
knowingly, intelligently, and voluntarily, the court must enter an
order dismissing all pending postconviction proceedings. The order
must also indicate whether appellate review has been waived.
(8) If the court determines that the defendant has not
made the decision to dismiss pending postconviction proceedings
knowingly, intelligently, and voluntarily, the court must enter an
order denying the motion without prejudice.
(9) If the court grants the motion and appellate review
is not waived:
(A) a copy of the motion, the order, and the
transcript of the hearing or hearings conducted on the motion must
be forwarded to the Clerk of the Supreme Court of Florida within 30
days; and
(B) collateral counsel must, within 10 days after
issuance of the order, file with the clerk of the circuit court 2 copies
of a notice seeking review in the Supreme Court of Florida, and
must, within 20 days after the filing of the transcript, serve an
initial brief. The state may serve a responsive brief. Briefs must be
served as prescribed by rule 9.210.
(10) If the court denies the motion, the defendant may
seek review as prescribed by Florida Rule of Appellate Procedure
9.142(c).
(11) For cases where counsel was discharged before May
5, 2022, collateral counsel eligible under rule 3.112 must be
appointed.
(j) Attorney General Notification to Clerk. The Office of
the Attorney General must notify the clerk of the supreme court
when it believes the defendant has completed his or her direct
appeal, initial postconviction proceeding in state court, and habeas
corpus proceeding and appeal therefrom in federal court. The Office
of the Attorney General must serve a copy of the notification on
defendant’s counsel of record.
Court Commentary
1993 Adoption. This rule is consistent with the
recommendation of the Supreme Court Committee on
Postconviction Relief in Capital Cases, which was created because
of the substantial delays in the death penalty postconviction relief
process. The committee was created because of the inability of the
capital collateral representative to properly represent all death
penalty inmates in postconviction relief cases and because of the
resulting substantial delays in those cases. That committee
recognized that, to make the process work properly, each death row
prisoner should have counsel available to represent him or her in
postconviction relief proceedings. The committee found that one of
the major problems with the process was that the triggering
mechanism to start or assure movement of the postconviction relief
proceedings was the signing of a death warrant. In a number of
instances, the courts were not aware of the problems concerning
representation of a defendant until a death warrant was signed. In
other instances, the committee found that, when postconviction
relief motions had been filed, they clearly had not moved at an
orderly pace and the signing of a death warrant was being used as a
means to expedite the process. The committee recommended that
specific named counsel should be designated to represent each
prisoner not later than 30 days after the defendant’s judgment and
sentence of death becomes final. To assure that representation, the
committee’s report noted that it was essential that there be
adequate funding of the capital collateral representative and sought
temporary assistance from The Florida Bar in providing pro bono
representation for some inmates.
There is a justification for the reduction of the time period for
a capital prisoner as distinguished from a noncapital prisoner, who
has two years to file a postconviction relief proceeding. A capital
prisoner will have counsel immediately available to represent him or
her in a postconviction relief proceeding, while counsel is not
provided or constitutionally required for noncapital defendants to
whom the two-year period applies.
In the event the capital collateral representative is not fully
funded and available to provide proper representation for all death
penalty defendants, the reduction in the time period would not be
justified and would necessarily have to be repealed, and this Court
will forthwith entertain a petition for the repeal of the rule. In this
context, it is important to emphasize that the governor agrees that
absent the circumstance where a competent death-sentenced
individual voluntarily requests that a death warrant be signed, no
death warrants will be issued during the initial round of federal and
state review, provided that counsel for death penalty defendants is
proceeding in a timely and diligent manner. This Court agrees that
the initial round of postconviction proceedings should proceed in a
deliberate but timely manner without the pressure of a pending
death warrant. Subdivision 3.851(b)(4) above addresses concerns of
The Florida Bar and The Florida Bar Foundation.
The provisions of the present rule 3.851 providing for time
periods where a 60–day warrant is signed by the governor are
abolished because they are unnecessary if the guidelines are
followed. The proceedings and grounds for postconviction relief
remain as provided under Florida Rule of Criminal Procedure 3.850,
which include, as one of the grounds, the opportunity for a
defendant to present newly discovered evidence in accordance with
Scott v. Dugger, 604 So. 2d 465 (Fla. 1992), Jones v. State, 591 So.
2d 911 (Fla. 1991), and Richardson v. State, 546 So. 2d 1037 (Fla.
1989).
1996 Amendment. Subdivision (c) is added to make the
Court’s decision in Huff v. State, 622 So. 2d 982 (Fla. 1993),
applicable to all rule 3.850 motions filed by a prisoner who has
been sentenced to death. Florida Rule of Judicial Administration
2.071(b) allows for telephonic and teleconferencing communication
equipment to be utilized “for a motion hearing, pretrial conference,
or a status conference.” Teleconferencing sites have been
established by the Department of Management Services, Division of
Communications at various metropolitan locations in the state. The
“Shevin Study” examined, at this Court’s request, the issue of
delays in capital postconviction relief proceedings and noted that
travel problems of counsel cause part of those delays. The Court
strongly encourages the use of the new telephonic and
teleconferencing technology for postconviction relief proceedings
that do not require evidentiary hearings, such as the hearing
required under subdivision (c) of this rule. Only the attorneys need
be involved in a hearing held under subdivision (c) of this rule;
attendance of the postconviction defendant is not required.
2001 Amendment. Several new procedures are added to rule
3.851. New subdivision (b), Appointment of Postconviction Counsel,
is added to ensure appointment of postconviction counsel upon the
Supreme Court of Florida’s issuance of mandate on direct appeal.
New subdivision (c), Preliminary Procedures, provides for, among
other things, the assignment of a qualified judge within 30 days
after mandate issues on direct appeal and status conferences every
90 days after the assignment until the evidentiary hearing has been
completed or the motion has been ruled on without a hearing.
These status conferences are intended to provide a forum for the
timely resolution of public records issues and other preliminary
matters. New subdivision (f), Procedure; Evidentiary Hearing;
Disposition, sets forth general procedures. Most significantly, that
subdivision requires an evidentiary hearing on claims listed in an
initial motion as requiring a factual determination. The Court has
identified the failure to hold evidentiary hearings on initial motions
as a major cause of delay in the capital postconviction process and
has determined that, in most cases, requiring an evidentiary
hearing on initial motions presenting factually based claims will
avoid this cause of delay. See Amendments to Florida Rules of
Criminal Procedure 3.851, 3.852 and 3.993, 772 So. 2d 488, 491
(Fla. 2000).
2006 Amendment. The amendments provide for the
appointment of Registry Counsel in areas of the state that are not
served by a Capital Collateral Regional Counsel. Counsel are
allowed to appear at status conferences electronically to authorize
both telephonic and video appearances.
2013 Amendment. Only minor amendments are made to rule
3.851.
Criminal Court Steering Committee Note
2014 Amendment. The rule was amended to comply with the
“Timely Justice Act of 2013,” chapter 2013-216, Laws of Florida,
and to preclude extended postconviction litigation. Because the
Sixth Amendment does not apply to postconviction proceedings, the
Steering Committee concluded that a defendant has no
constitutional right to self-representation in postconviction matters.
The Steering Committee also concluded that the capital
postconviction process would function more effectively if a
defendant were represented by an attorney, unless the defendant
seeks to dismiss postconviction proceedings and discharge counsel
pursuant to subdivision (i). The Steering Committee concluded that
the lead attorney should not be allowed to participate in capital
postconviction litigation on a limited basis and that the lead
attorney should remain in the case until the litigation is concluded
or until the court allows withdrawal. The Steering Committee also
determined that the postconviction process would not work
efficiently unless the trial judge was responsible for case
management. Case management orders are required throughout the
postconviction process in order to maintain a capital postconviction
computer database.
Under the amended rule, the clerk of the trial court is required
to retain a copy of the record so that it will be available for
postconviction litigation, especially following issuance of the death
warrant. Additionally, the Steering Committee added provisions to
the pleading requirements for motions and created a provision that
allows for written closing argument memoranda, formalizing by rule
a practice that is already utilized throughout the state in capital
postconviction proceedings. In an effort to prevent delay, the
amended rule requires written reports from experts who will testify
at the evidentiary hearing, and allows for witnesses to testify via
videoconferencing, even over the objections of the parties. Finally,
the amended rule requires the Attorney General to inform the Clerk
of the Florida Supreme Court and the defendant’s counsel of record
when a defendant has completed his or her litigation in order for
the Clerk to report to the Governor pursuant to Florida Statute
922.052.
2022 Amendment. The amendments are in response to the
Court’s decision in Davis v. State, 257 So. 3d 100, 107 n.8 (Fla.
2018), recognizing the discrepancy between rule 3.851(i) and the
Court’s case law. The dismissal of a pending postconviction motion
pursuant to subdivision (i) does not preclude the filing of a
subsequent postconviction motion raising for the first time claims
that could be raised under rule 3.851(d)(2)(A), which allows for
claims based on newly discovered evidence, or rule 3.851(d)(2)(B),
which allows for claims that are based on a newly established
fundamental constitutional right previously held to apply
retroactively, and claims that are only ripe at the time of issuance of
a warrant, such as competency to be executed and challenges to
execution protocols.
RULE 3.852 cases. CAPITAL POSTCONVICTION PUBLIC RECORDS
PRODUCTION
(a) Applicability and Scope.
(1) This rule is applicable only to the production of
public records for capital postconviction defendants and does not
change or alter the time periods specified in Florida Rule of
Criminal Procedure 3.851. Furthermore, this rule does not affect,
expand, or limit the production of public records for any purposes
other than use in a proceeding held pursuant to rule 3.850 or rule
3.851.
(2) This rule shall not be a basis for renewing requests
that have been initiated previously or for relitigating issues
pertaining to production of public records upon which a court has
ruled prior to October 1, 1998.
(3) This rule is to be used in conjunction with the forms
found at Florida Rule of Criminal Procedure 3.993.
(b) Definitions.
(1) “Public records” has the meaning set forth in
section 119.011, Florida Statutes.
(2) “Trial court” means:
(A) the judge who entered the judgment and
imposed the sentence of death; or
(B) the judge assigned by the chief judge.
(3) “Records repository” means the location designated
by the secretary of state pursuant to section 27.7081, Florida
Statutes, for archiving capital postconviction public records.
(4) “Collateral counsel” means a capital collateral
regional counsel from one of the three regions in Florida; a private
attorney who has been appointed to represent a capital defendant
for postconviction litigation; or a private attorney who has been
hired by the capital defendant or who has agreed to work pro bono
for a capital defendant for postconviction litigation.
(5) “Agency” means an entity or individual as defined in
section 119.011, Florida Statutes, that is subject to the
requirements of producing public records for inspection under
section 119.07, Florida Statutes.
(6) “Index” means a list of the public records included
in each container of public records sent to the records repository.
(c) Filing and Service.
(1) The original of all notices, requests, or objections
filed under this rule must be filed with the clerk of the trial court.
Copies must be served on the trial court, the attorney general, the
state attorney, collateral counsel, and any affected person or
agency, unless otherwise required by this rule.
(2) Service shall be made pursuant to Florida Rule of
Criminal Procedure 3.030.
(3) In all instances requiring written notification or
request, the party who has the obligation of providing a notification
or request shall provide proof of receipt.
(4) Persons and agencies receiving postconviction
public records notifications or requests pursuant to this rule are
not required to furnish records filed in a trial court prior to the
receipt of the notice.
(d) Action Upon Issuance of Mandate.
(1) Within 15 days after receiving written notification of
the Supreme Court of Florida’s mandate affirming the sentence of
death, the attorney general shall file with the trial court a written
notice of the mandate and serve a copy of it upon the state attorney
who prosecuted the case, the Department of Corrections, and the
defendant’s trial counsel. The notice to the state attorney shall
direct the state attorney to submit public records to the records
repository within 90 days after receipt of written notification and to
notify each law enforcement agency involved in the investigation of
the capital offense, with a copy to the trial court, to submit public
records to the records repository within 90 days after receipt of
written notification. The notice to the Department of Corrections
shall direct the department to submit public records to the records
repository within 90 days after receipt of written notification. The
attorney general shall make a good faith effort to assist in the timely
production of public records and written notices of compliance by
the state attorney and the Department of Corrections with copies to
the trial court.
(2) Within 90 days after receiving written notification of
issuance of the Supreme Court of Florida’s mandate affirming a
death sentence, the state attorney shall provide written notification
to the attorney general and to the trial court of the name and
address of any additional person or agency that has public records
pertinent to the case.
(3) Within 90 days after receiving written notification of
issuance of the Supreme Court of Florida’s mandate affirming a
death sentence, the defendant’s trial counsel shall provide written
notification to the attorney general and to the trial court of the
name and address of any person or agency with information
pertinent to the case which has not previously been provided to
collateral counsel.
(4) Within 15 days after receiving written notification of
any additional person or agency pursuant to subdivision (d)(2) or
(d)(3) of this rule, the attorney general shall notify all persons or
agencies identified pursuant to subdivisions (d)(2) or (d)(3), with a
copy to the trial court, that these persons or agencies are required
by law to copy, index, and deliver to the records repository all
public records pertaining to the case that are in their possession.
The person or agency shall bear the costs related to copying,
indexing, and delivering the records. The attorney general shall
make a good faith effort to assist in the timely production of public
records and a written notice of compliance by each additional
person or agency with a copy to the trial court.
(e) Action Upon Receipt of Notice of Mandate.
(1) Within 15 days after receipt of a written notice of
the mandate from the attorney general, the state attorney shall
provide written notification to each law enforcement agency involved
in the specific case to submit public records to the records
repository within 90 days after receipt of written notification. A copy
of the notice shall be served upon the defendant’s trial counsel and
the trial court. The state attorney shall make a good faith effort to
assist in the timely production of public records and a written
notice of compliance by each law enforcement agency with a copy to
the trial court.
(2) Within 90 days after receipt of a written notice of
the mandate from the attorney general, the state attorney shall
copy, index, and deliver to the records repository all public records,
in a current, nonproprietary technology format, that were produced
in the state attorney’s investigation or prosecution of the case. The
state attorney shall bear the costs. The state attorney shall also
provide written notification to the attorney general and the trial
court of compliance with this section, including certifying that, to
the best of the state attorney’s knowledge or belief, all public
records in the state attorney’s possession have been copied,
indexed, and delivered to the records repository as required by this
rule.
(3) Within 90 days after receipt of written notification of
the mandate from the attorney general, the Department of
Corrections shall copy, index, and deliver to the records repository
all public records, in a current, nonproprietary technology format,
determined by the department to be relevant to the subject matter
of a proceeding under rule 3.851, unless such copying, indexing,
and delivering would be unduly burdensome. To the extent that the
records determined by the department to be relevant to the subject
matter of a proceeding under rule 3.851 are the defendant’s
medical, psychological, substance abuse, or psychiatric records,
upon receipt of express consent by the defendant or pursuant to the
authority of a court of competent jurisdiction, the department shall
provide a copy of the defendant’s medical, psychological, substance
abuse, and psychiatric records to the defendant’s counsel of record.
The department shall bear the costs. The secretary of the
department shall provide written notification to the attorney general
and the trial court of compliance with this section certifying that, to
the best of the secretary of the department’s knowledge or belief, all
such public records in the possession of the secretary of the
department have been copied, indexed, and delivered to the records
repository.
(4) Within 90 days after receipt of written notification of
the mandate from the state attorney, a law enforcement agency
shall copy, index, and deliver to the records repository all public
records, in a current, nonproprietary technology format, which were
produced in the investigation or prosecution of the case. Each
agency shall bear the costs. The chief law enforcement officer of
each law enforcement agency shall provide written notification to
the attorney general and the trial court of compliance with this
section including certifying that, to the best of the chief law
enforcement officer’s knowledge or belief, all such public records in
possession of the agency or in possession of any employee of the
agency, have been copied, indexed, and delivered to the records
repository.
(5) Within 90 days after receipt of written notification of
the mandate from the attorney general, each additional person or
agency identified pursuant to subdivision (d)(2) or (d)(3) of this rule
shall copy, index, and deliver to the records repository all public
records, in a current, nonproprietary technology format, which were
produced during the prosecution of the case. The person or agency
shall bear the costs. The person or agency shall provide written
notification to the attorney general and the trial court of compliance
with this subdivision and shall certify, to the best of the person or
agency’s knowledge and belief, all such public records in the
possession of the person or agency have been copied, indexed, and
delivered to the records repository.
(f) Exempt or Confidential Public Records.
(1) Any public records delivered to the records
repository pursuant to these rules that are confidential or exempt
from the requirements of section 119.07, Florida Statutes, or article
I, section 24(a), Florida Constitution, must be separately contained,
without being redacted, and sealed. The outside of the container
must clearly identify that the public record is confidential or exempt
and that the seal may not be broken without an order of the trial
court. The outside of the container must identify the nature of the
public records and the legal basis for the exemption.
(2) Upon the entry of an appropriate court order, sealed
containers subject to an inspection by the trial court shall be
shipped to the clerk of court. The containers may be opened only for
inspection by the trial court in camera. The moving party shall bear
all costs associated with the transportation and inspection of such
records by the trial court. The trial court shall perform the
unsealing and inspection without ex parte communications and in
accord with procedures for reviewing sealed documents.
(3) Collateral counsel must file a motion for in camera
inspection within 30 days of receipt of the notice of delivery of the
sealed records to the central records repository, or the in camera
inspection will be deemed waived.
(g) Demand for Additional Public Records.
(1) Within 240 days after collateral counsel is
appointed, retained, or appears pro bono, such counsel shall send a
written demand for additional public records to each person or
agency submitting public records or identified as having
information pertinent to the case under subdivision (d) of this rule,
with a copy to the trial court. However, if collateral counsel was
appointed prior to October 1, 2001, then within 90 days after
collateral counsel is appointed, retained, or appears pro bono, such
counsel shall send a written demand for additional public records
to each person or agency submitting public records or identified as
having information pertinent to the case under subdivision (d) of
this rule.
(2) Within 90 days of receipt of the written demand,
each person or agency notified under this subdivision shall deliver
to the records repository any additional public records in the
possession of the person or agency that pertain to the case and
shall certify to the best of the person or agency’s knowledge and
belief that all additional public records have been delivered to the
records repository or, if no additional public records are found,
shall recertify that the public records previously delivered are
complete. To the extent that the additional public records are the
defendant’s Department of Corrections’ medical, psychological,
substance abuse, or psychiatric records, upon receipt of express
consent by the defendant or pursuant to the authority of a court of
competent jurisdiction, the department shall provide a copy of the
defendant’s medical, psychological, substance abuse, and
psychiatric records to the defendant’s counsel of record. A copy of
each person’s or agency’s certification shall be provided to the trial
court.
(3) Within 60 days of receipt of the written demand,
any person or agency may file with the trial court an objection to
the written demand described in subdivision (g)(1). The trial court
shall hear and rule on any objection no later than the next 90-day
status conference after the filing of the objection, ordering a person
or agency to produce additional public records if the court
determines each of the following exists:
(A) Collateral counsel has made a timely and
diligent search as provided in this rule.
(B) Collateral counsel’s written demand identifies,
with specificity, those additional public records that are not at the
records repository.
(C) The additional public records sought are
relevant to the subject matter of a proceeding under rule 3.851, or
appear reasonably calculated to lead to the discovery of admissible
evidence.
(D) The additional public records request is not
overly broad or unduly burdensome.
(h) Cases in Which Mandate was Issued Prior to Effective
Date of Rule.
(1) If the mandate affirming a defendant’s conviction
and sentence of death was issued prior to October 1, 1998, and no
initial public records requests have been made by collateral counsel
by that date, the attorney general and the state attorney shall file
notifications with the trial court as required by subdivisions (d) and
(e) of this rule.
(2) If on October 1, 1998, a defendant is represented by
collateral counsel and has initiated the public records process,
collateral counsel shall, within 90 days after October 1, 1998, or
within 90 days after the production of records which were requested
prior to October 1, 1998, whichever is later, file with the trial court
and serve a written demand for any additional public records that
have not previously been the subject of a request for public records.
The request for these records shall be treated the same as a request
pursuant to subdivisions (d)(3) and (d)(4) of this rule, and the
records shall be copied, indexed, and delivered to the repository as
required in subdivision (e)(5) of this rule.
(3) Within 10 days of the signing of a defendant’s death
warrant, collateral counsel may request in writing the production of
public records from a person or agency from which collateral
counsel has previously requested public records. A person or
agency shall copy, index, and deliver to the repository any public
record:
(A) that was not previously the subject of an
objection;
(B) that was received or produced since the
previous request; or
(C) that was, for any reason, not produced
previously.
The person or agency providing the records shall bear the costs of
copying, indexing, and delivering such records. If none of these
circumstances exist, the person or agency shall file with the trial
court and the parties an affidavit stating that no other records exist
and that all public records have been produced previously. A person
or agency shall comply with this subdivision within 10 days from
the date of the written request or such shorter time period as is
ordered by the court.
(4) In all instances in subdivision (h) which require
written notification the receiving party shall provide proof of receipt
by return mail or other carrier.
(i) Limitation on Postproduction Request for Additional
Records.
(1) In order to obtain public records in addition to
those provided under subdivisions (e), (f), (g), and (h) of this rule,
collateral counsel shall file an affidavit in the trial court which:
(A) attests that collateral counsel has made a
timely and diligent search of the records repository; and
(B) identifies with specificity those public records
not at the records repository; and
(C) establishes that the additional public records
are either relevant to the subject matter of the postconviction
proceeding or are reasonably calculated to lead to the discovery of
admissible evidence; and
(D) shall be served in accord with subdivision (c)(1)
of this rule.
(2) Within 30 days after the affidavit of collateral
counsel is filed, the trial court may order a person or agency to
produce additional public records only upon finding each of the
following:
(A) collateral counsel has made a timely and
diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with
specificity those additional public records that are not at the
records repository;
(C) the additional public records sought are either
relevant to the subject matter of a proceeding under rule 3.851 or
appear reasonably calculated to lead to the discovery of admissible
evidence; and
(D) the additional records request is not overly
broad or unduly burdensome.
(j) Authority of the Court. In proceedings under this rule
the trial court may:
(1) compel or deny disclosure of records;
(2) conduct an in-camera inspection;
(3) extend the times in this rule upon a showing of
good cause;
(4) require representatives from government agencies to
appear at status conferences to address public records issues;
(5) impose sanctions upon any party, person, or agency
affected by this rule including initiating contempt proceedings,
taxing expenses, extending time, ordering facts to be established,
and granting other relief; and
(6) resolve any dispute arising under this rule unless
jurisdiction is in an appellate court.
(k) Scope of Production and Resolution of Production
Issues.
(1) Unless otherwise limited, the scope of production
under any part of this rule shall be that the public records sought
are not privileged or immune from production and are either
relevant to the subject matter of the proceeding under rule 3.851 or
are reasonably calculated to lead to the discovery of admissible
evidence.
(2) Any objections or motions to compel production of
public records pursuant to this rule shall be filed within 30 days
after the end of the production time period provided by this rule.
Counsel for the party objecting or moving to compel shall file a copy
of the objection or motion directly with the trial court. The trial
court shall hold a hearing on the objection or motion on an
expedited basis.
(l) Destruction of Records Repository Records. Sixty days
after a capital sentence is carried out, after a defendant is released
from incarceration following the granting of a pardon or reversal of
the sentence, or after a defendant has been resentenced to a term of
years, the attorney general shall provide written notification of this
occurrence to the secretary of state with service in accord with
subdivision (c)(1). After the expiration of the 60 days, the secretary
of state may then destroy the copies of the records held by the
records repository that pertain to that case, unless an objection to
the destruction is filed in the trial court and served upon the
secretary of state and in accord with subdivision (c)(1). If no
objection has been served within the 60–day period, the records
may then be destroyed. If an objection is served, the records shall
not be destroyed until a final disposition of the objection.
Criminal Court Steering Committee Note
2014 Amendment. The rule is amended to require the state
attorney and attorney general to manage compliance with the public
records process.
RULE 3.853 cases. MOTION FOR POSTCONVICTION DNA TESTING
(a) Purpose. This rule provides procedures for obtaining
DNA (deoxyribonucleic acid) testing under sections 925.11 and
925.12, Florida Statutes.
(b) Contents of Motion. The motion for postconviction DNA
testing must be under oath and must include the following:
(1) a statement of the facts relied on in support of the
motion, including a description of the physical evidence containing
DNA to be tested and, if known, the present location or last known
location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not previously
tested for DNA, or a statement that the results of previous DNA
testing were inconclusive and that subsequent scientific
developments in DNA testing techniques likely would produce a
definitive result establishing that the movant is not the person who
committed the crime;
(3) a statement that the movant is innocent and how
the DNA testing requested by the motion will exonerate the movant
of the crime for which the movant was sentenced, or a statement
how the DNA testing will mitigate the sentence received by the
movant for that crime;
(4) a statement that identification of the movant is a
genuinely disputed issue in the case and why it is an issue or an
explanation of how the DNA evidence would either exonerate the
defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the
motion; and
(6) a certificate that a copy of the motion has been
served on the prosecuting authority.
(c) Procedure.
(1) On receipt of the motion, the clerk of the court must
notify the assigned judge.
(2) The court must review the motion and deny it if it is
facially insufficient. If the motion is facially sufficient, the
prosecuting authority must be ordered to respond to the motion
within 30 days or such other time as may be ordered by the court.
(3) On receipt of the response of the prosecuting
authority, the court must review the response and enter an order
on the merits of the motion or set the motion for hearing.
(4) In the event that the motion must proceed to a
hearing, the court may appoint counsel to assist the movant if the
court determines that assistance of counsel is necessary and on a
determination of indigency under section 27.52, Florida Statutes.
(5) The court must make the following findings when
ruling on the motion:
(A) Whether it has been shown that physical
evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that
physical evidence likely would be admissible at trial and whether
there exists reliable proof to establish that the evidence containing
the tested DNA is authentic and would be admissible at a future
hearing.
(C) Whether there is a reasonable probability that
the movant would have been acquitted or would have received a
lesser sentence if the DNA evidence had been admitted at trial.
(6) If the court orders DNA testing of the physical
evidence, the cost of the testing may be assessed against the
movant, unless the movant is indigent. If the movant is indigent,
the state must bear the cost of the DNA testing ordered by the
court.
(7) The court-ordered DNA testing must be ordered to
be conducted by the Department of Law Enforcement or its
designee, as provided by statute. However, the court, on a showing
of good cause, may order testing by another laboratory or agency
certified by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) or Forensic
Quality Services, Inc. (FQS) if requested by a movant who can bear
the cost of such testing.
(8) The results of the DNA testing ordered by the court
must be provided in writing to the court, the movant, and the
prosecuting authority.
(d) Time Limitations. The motion for postconviction DNA
testing may be filed or considered at any time following the date
that the judgment and sentence in the case becomes final.
(e) Rehearing. The movant may file a motion for rehearing of
any order denying relief within 15 days after service of the order
denying relief. The time for filing an appeal must be tolled until an
order on the motion for rehearing has been entered.
(f) Appeal. An appeal may be taken by any adversely
affected party within 30 days from the date the order on the motion
is rendered. All orders denying relief must include a statement that
the movant has the right to appeal within 30 days after the order
denying relief is rendered.
XVIII. FORMS
RULE 3.984 cases. APPLICATION FOR CRIMINAL INDIGENT STATUS
IN THE CIRCUIT/COUNTY COURT OF THE ____________________
JUDICIAL CIRCUIT IN AND FOR _________________ COUNTY,
FLORIDA
STATE OF FLORIDA vs. CASE NO.
Defendant/Minor Child
APPLICATION FOR CRIMINAL INDIGENT STATUS
____ I AM SEEKING THE APPOINTMENT OF THE PUBLIC
DEFENDER
OR
____ I HAVE A PRIVATE ATTORNEY OR AM SELF-REPRESENTED
AND SEEK DETERMINATION OF INDIGENCE STATUS FOR COSTS
Notice to Applicant: The provision of a public defender/court
appointed lawyer and costs/due process services are not free. A
judgment and lien may be imposed against all real or personal
property you own to pay for legal and other services provided on
your behalf or on behalf of the person for whom you are making
this application. There is a $50.00 fee for each application filed.
If the application fee is not paid to the Clerk of the Court within 7
days, it will be added to any costs that may be assessed against you
at the conclusion of this case. If you are a parent/guardian making
this affidavit on behalf of a minor or tax-dependent adult, the
information contained in this application must include your income
and assets.
1. I have ______ dependents. (Do not include children not living
at home and do not include a working spouse or yourself.)
2. I have a take home income of $_______________ paid ( )
weekly ( ) bi-weekly ( ) semi-monthly ( ) monthly ( ) yearly
(Take home income equals salary, wages, bonuses, commissions,
allowances, overtime, tips and similar payments, minus deductions
required by law and other court ordered support payments)
3. I have other income paid ( ) weekly ( ) bi-weekly ( ) semi-
monthly ( ) monthly ( ) yearly: (Circle “Yes” and fill in the amount
if you have this kind of income, otherwise circle “No.”)
Social Security benefits.................... Yes $____________ No
Unemployment compensation.......... Yes $____________ No
Union Funds.................................... Yes $____________ No
Workers compensation..................... Yes $____________ No
Retirement/pensions....................... Yes $____________ No
Trusts or gifts.................................. Yes $____________ No
Veterans’ benefit.............................. Yes $____________ No
Child support or other regular support
from family members/spouse.......... Yes $____________ No
Rental income.................................. Yes $____________ No
Dividends or interest........................ Yes $____________ No
Other kinds of income not on the list Yes $____________ No
4. I have other assets: (Circle “Yes” and fill in the value of the
property, otherwise circle “No”)
Cash................................................ Yes $____________ No
Bank account(s)............................... Yes $____________ No
Certificates of deposit or money
market accounts.............................. Yes $____________ No
* Equity in Motor vehicles/Boats/
Other tangible property................... Yes $____________ No
Savings............................................ Yes $____________ No
Stocks/bonds.................................. Yes $____________ No
* Equity in Real estate
(excluding homestead)...................... Yes $____________ No
* include expectancy of an interest in such property
5. I have a total amount of liabilities and debts in the
amount of $ . I receive: (Circle “Yes” or “No”)
Temporary Assistance for Needy Families-Cash
Assistance............................................................... Yes No
Poverty-related veterans’
benefits.................................................................... Yes No
Supplemental Security Income
(SSI)......................................................................... Yes No
7. I have been released on bail in the amount of $______.
Cash ___ Surety ___ Posted by: Self ___ Family ___
Other ____
A person who knowingly provides false information to the clerk or
the court in seeking a determination of indigent status under
section 27.52, Florida Statutes, commits a misdemeanor of the first
degree, punishable as provided in section 775.082, Florida
Statutes, or section 775.083, Florida Statutes. I attest that the
information I have provided on this Application is true and
accurate.
Signed this day of , 20 .
Date of Birth Signature of Applicant for Indigent
Status
Last 4 Digits of Driver’s License or
ID Number Print full legal name
Address
City, State, Zip
Phone number
CLERK’S DETERMINATION
Based on the information in this Application, I have
determined the applicant to be ( ) Indigent ( ) Not Indigent
The Public Defender is hereby appointed to the case listed
above until relieved by the Court.
Dated this day of , 20 .
Clerk of the Circuit Court
This form was completed Clerk/Deputy Clerk/Other
with the assistance of authorized person
APPLICANTS FOUND NOT INDIGENT MAY SEEK REVIEW BY
ASKING FOR A HEARING TIME. Sign here if you want the judge
to review the clerk’s decision of not indigent.
RULE 3.9855 cases. JUROR VOIR DIRE QUESTIONNAIRE
DIRECTIONS TO CLERKS, ATTORNEYS, AND PRO SE
LITIGANTS:
Before you file a copy of this form, redact the month and date
of the prospective juror’s birth in question #1, but retain the
year of birth.
Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(2).
JUROR VOIR DIRE QUESTIONNAIRE
1. Name and date of birth
2. What city, town or area of the county do you live in?
Zip code
3. Years of residence: In Florida
In this county
4. Former residence
5. Marital status (married, single, divorced, widow, or widower)
6. Your occupation and employer
7. If you are not now employed, give your last occupation and
employer
8. If married, name and occupation of spouse
9. Have you ever served as a juror before? yes _____ no ____
If yes, civil ____ criminal ____
Did the jury reach a verdict? yes _____ no _____
Were you the foreperson? yes _____ no _____
10. If you have children, give the age, sex and occupation of those
children
11. Are you either a close friend or relative of any law enforcement
officer?
12. Have you, a close friend, or family member been the victim of a
crime?
13. Have you, a close friend, or family member been arrested or
accused of a crime?
RULE 3.986 cases. FORMS RELATED TO JUDGMENT AND
SENTENCE
(a) Sufficiency of Forms. The forms as set forth below, or
computer generated formats that duplicate these forms, shall be
used by all courts. Variations from these forms do not void a
judgment, sentence, order, or fingerprints that are otherwise
sufficient.
(b) Form for Judgment.
Probation Violator
Community Control Violator
Retrial
Resentence
In the Circuit Court,
Judicial Circuit, in and
for
County, Florida
Division
Case Number
State of Florida
v.
Defendant
JUDGMENT
The defendant, , being personally before this court
represented
by , the attorney of record, and the state represented by
, and having
been tried and found guilty by jury/by court of the
following crime(s)
entered a plea of guilty to the following crime(s)
entered a plea of nolo contendere to the following crime(s)
Offense Degree
Statute of Case OBTS
Count Crime Number(s) Crime Number Number
and no cause being shown why the defendant should not
be adjudicated guilty, IT IS ORDERED THAT the
defendant is hereby ADJUDICATED GUILTY of the above
crime(s).
and being a qualified offender pursuant to section
943.325, Florida Statutes, the defendant shall be
required to submit DNA samples as required by law.
and good cause being shown; IT IS ORDERED THAT
ADJUDICATION OF GUILT BE WITHHELD.
DONE AND ORDERED in open court in County,
Florida, on .....(date)......
Judge
State of Florida
v.
Defendant Case Number
FINGERPRINTS OF DEFENDANT
R. Thumb R. Index R. Middle R. Ring R. Little
L. Thumb L. Index L. Middle L. Ring L. Little
Fingerprints taken by:
(Name) (Title)
I HEREBY CERTIFY that the above and foregoing fingerprints
are the fingerprints of the defendant, .....(name)....., and that they
were placed thereon by the defendant in my presence this the ____
day of _____, ..…(year)…..
Judge
[OR]
I HEREBY CERTIFY that the digital fingerprint record
associated with Transaction Control Number ______ contains the
fingerprints of the defendant, .....(name)....., which were
electronically captured from the defendant in my presence this the
____day of ___, .....(year).....
Court Officer/Court
Employee/Criminal Justice
Agency Employee
(c) Form for Charges, Costs, and Fees.
In the Circuit Court,
Judicial Circuit, in and
for
County, Florida
Division
Case Number
State of Florida
v.
Defendant
CHARGES/COSTS/FEES
The defendant is hereby ordered to pay the following sums:
[Insert list of mandatory fines, discretionary fines, and restitution, if
any.]
DONE AND ORDERED in open court in County,
Florida, on .....(date)......
Judge
(d) Form for Sentencing.
Defendant Case Number OBTS Number
SENTENCE
(As to Count )
The defendant, being personally before this court,
accompanied by the defendant’s attorney of record, , and
having been adjudicated guilty herein, and the court having given
the defendant an opportunity to be heard and to offer matters in
mitigation of sentence, and to show cause why the defendant
should not be sentenced as provided by law, and no cause being
shown,
(Check one if applicable)
and the court having on .....(date)..... deferred imposition of
sentence until this date
and the court having previously entered a judgment in this
case on .....(date)..... now resentences the defendant
and the court having placed the defendant on
probation/community control and having subsequently revoked the
defendant’s probation/community control
It Is The Sentence Of The Court That:
The defendant pay a fine of $ , pursuant to section 775.083,
Florida Statutes, plus $ as the 5% surcharge required by section
938.04, Florida Statutes.
The defendant is hereby committed to the custody of the
Department of Corrections.
The defendant is hereby committed to the custody of the
Sheriff of County, Florida
The defendant is sentenced as a youthful offender in
accordance with section 958.04, Florida Statutes.
To Be Imprisoned (check one; unmarked sections are inapplicable):
For a term of natural life.
For a term of .
Said SENTENCE SUSPENDED for a period of subject to
conditions set forth in this order.
If “split” sentence complete the appropriate paragraph
Followed by a period of on probation/community
control under the supervision of the Department of Corrections
according to the terms and conditions of supervision set forth in a
separate order entered herein.
However, after serving a period of imprisonment in
the balance of the sentence shall be suspended and the
defendant shall be placed on probation/community control for a
period of under supervision of the Department of Corrections
according to the terms and conditions of probation/community
control set forth in a separate order entered herein.
In the event the defendant is ordered to serve additional split
sentences, all incarceration portions shall be satisfied before the
defendant begins service of the supervision terms.
SPECIAL PROVISIONS
(As to Count )
[Include all findings, sentencing enhancements, and
mandatory minimum provisions, as authorized by law and
pronounced at sentencing.]
Retention of Jurisdiction
The court retains jurisdiction over the defendant
pursuant to section 947.16(4), Florida Statutes
(1983).
Jail Credit
It is further ordered that the defendant shall be
allowed a total of days as credit for time
incarcerated before imposition of this sentence.
CREDIT FOR TIME SERVED
IN RESENTENCING AFTER
VIOLATION OF PROBATION
OR COMMUNITY CONTROL
It is further ordered that the defendant be allowed
days time served between date of arrest as a violator
following release from prison to the date of
resentencing. The Department of Corrections shall
apply original jail time credit and shall compute and
apply credit for time served and unforfeited gain
time previously awarded on case/count .
(Offenses committed before October 1, 1989.)
It is further ordered that the defendant be allowed
days time served between date of arrest as a violator
following release from prison to the date of
resentencing. The Department of Corrections shall
apply original jail time credit and shall compute and
apply credit for time served on case/count .
(Offenses committed between October 1, 1989, and
December 31, 1993.)
The Court deems the unforfeited gain time
previously awarded on the above case/count
forfeited under section 948.06(7), Florida Statutes.
The Court allows unforfeited gain time previously
awarded on the above case/count. (Gain time may
be subject to forfeiture by the Department of
Corrections under section 944.28(1), Florida
Stautes.)
It is further ordered that the defendant be allowed
days time served between date of arrest as a violator
following release from prison to the date of
resentencing. The Department of Corrections shall
apply original jail time credit and shall compute and
apply credit for time served only pursuant to section
921.0017, Florida Statutes, on case/count .
(Offenses committed on or after January 1, 1994.)
Consecutive/Concurrent as to Other Counts
It is further ordered that the sentence imposed for this count shall
run (check one)
consecutive to concurrent with the sentence set forth in
count of this case.
Consecutive/Concurrent as to Other Convictions
It is further ordered that the composite term of all sentences
imposed for the counts specified in this order shall run (check one)
consecutive to concurrent with (check one) the
following:
any active sentence being served.
specific sentences:
In the event the above sentence is to the Department of
Corrections, the Sheriff of County, Florida, is hereby
ordered and directed to deliver the defendant to the Department of
Corrections at the facility designated by the department together
with a copy of this judgment and sentence and any other
documents specified by Florida Statute.
The defendant in open court was advised of the right to appeal
from this sentence by filing notice of appeal within 30 days from
this date with the clerk of this court and the defendant’s right to the
assistance of counsel in taking the appeal at the expense of the
state on showing of indigency.
In imposing the above sentence, the court further recommends
DONE AND ORDERED in open court at County,
Florida, on .....(date)......
Judge
(e) Form for Order of Probation.
In the
Court,
of County, Florida
Case Number
State of Florida
v.
Defendant
ORDER OF PROBATION
This cause coming on this day to be heard before me, and you,
the defendant, , being now present before me, and you having
(check one)
entered a plea of guilty to
entered a plea of nolo contendere to
been found guilty by jury verdict of
been found guilty by the court trying the case
without a jury of the offense(s) of
SECTION 1: Judgment Of Guilt
The Court hereby adjudges you to be guilty of the above
offense(s).
Now, therefore, it is ordered and adjudged that the imposition
of sentence is hereby withheld and that you be placed on probation
for a period of under the supervision of the Department of
Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
Now, therefore, it is ordered and adjudged that the
adjudication of guilt is hereby withheld and that you be placed on
probation for a period of under the supervision of the
Department of Corrections, subject to Florida law.
SECTION 3: Probation During Portion Of Sentence
It is hereby ordered and adjudged that you be
committed to the Department of Corrections
confined in the County Jail
for a term of with credit for jail time. After you have
served of the term you shall be placed on probation for a period
of under the supervision of the Department of Corrections,
subject to Florida law.
confined in the County Jail
for a term of with credit for jail time, as a special
condition of probation.
It is further ordered that you shall comply with the following
conditions of probation during the probationary period:
GENERAL CONDITIONS: [List the general conditions of
probation pursuant to section 948.03, Florida Statutes.]
SPECIAL CONDITIONS: [List the special conditions of
probation as orally pronounced and authorized by law.]
Other
(Use the space below for additional conditions as necessary.)
The court may rescind or modify at any time the terms and
conditions imposed by it upon the probationer.
It is further ordered that when you have been instructed as to
the conditions of probation, you shall be released from custody if
you are in custody, and if you are at liberty on bond, the sureties
thereon shall stand discharged from liability.
It is further ordered that the clerk of this court file this order
in the clerk’s office and provide certified copies of same to the officer
for use in compliance with the requirements of law.
DONE AND ORDERED, on .....(date)......
Judge
I acknowledge receipt of a certified copy of this order. The
conditions have been explained to me and I agree to abide by them.
.....(date)..... Probationer
Instructed by
Original: Clerk of the Court
Certified Copies: Probationer
Florida Department of
Corrections, Probation and
Parole Service
(f) Form for Community Control.
In the
Court,
of County, Florida
Case Number
State of Florida
v.
Defendant
ORDER OF COMMUNITY CONTROL
This cause coming on this day to be heard before me, and you,
the defendant, , being now present before me, and you having
(check one)
entered a plea of guilty to
entered a plea of nolo contendere to
been found guilty by jury verdict of
been found guilty by the court trying the case
without a jury of the offense(s) of
SECTION 1: Judgment of Guilt
The court hereby adjudges you to be guilty of the above
offense(s).
Now, therefore, it is ordered and adjudged that you be placed
on community control for a period of under the supervision
of the Department of Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
Now, therefore, it is ordered and adjudged that the
adjudication of guilt is hereby withheld and that you be placed on
Community Control for a period of under the supervision of
the Department of Corrections, subject to Florida law.
SECTION 3: Community Control During Portion Of Sentence
It is hereby ordered and adjudged that you be
committed to the Department of Corrections
confined in the County Jail
for a term of with credit for jail time. After you have
served of the term, you shall be placed on community control for
a period of under the supervision of the Department of
Corrections, subject to Florida law.
confined in the County Jail
for a term of with credit for jail time, as a special
condition of community control.
It is further ordered that you shall comply with the following
conditions of community control during the community control
period:
GENERAL CONDITIONS: [List the general conditions of
community control pursuant to section 948.101, Florida Statutes.]
SPECIAL CONDITIONS: [List the special conditions of
community control as orally pronounced and authorized by law.]
The court may rescind or modify at any time the terms and
conditions imposed by it upon the community controlee.
It is further ordered that when you have reported to your
officer and have been instructed as to the conditions of community
control, you shall be released from custody if you are in custody,
and if you are at liberty on bond, the sureties thereon shall stand
discharged from liability.
It is further ordered that the clerk of this court file this order
in the clerk’s office, and forthwith provide certified copies of same to
the officer for use in compliance with the requirements of law.
DONE AND ORDERED, on .....(date)......
Judge
I acknowledge receipt of a certified copy of this order. The
conditions have been explained to me and I agree to abide by them.
.....(date)..... Community controller
Instructed by
Original: Clerk of the Court
Certified Copies: Community Controlee
Florida Department of
Corrections, Probation
and Parole Service
(g) Form for Restitution Order.
In the Circuit Court,
Judicial Circuit, in and
for
County, Florida
Division
Case Number
State of Florida
v.
Defendant
RESTITUTION ORDER
By appropriate notation, the following provisions apply to the
sentence imposed in this section:
Restitution is not ordered as it is not applicable.
Restitution is not ordered due to the financial resources
of the defendant.
Restitution is not ordered due to
.
Due to the financial resources of the defendant,
restitution of a portion of the damages is ordered as
prescribed below.
Restitution is ordered as prescribed below.
Restitution is ordered for the following victim. (Victim
refers to the aggrieved party, aggrieved party’s estate,
or aggrieved party’s next of kin if the aggrieved party is
deceased as a result of the offense. In lieu of the victim’s address,
the address and phone number of the prosecuting
attorney, victim’s attorney, or victim advocate may be
used.)
Name of victim Name of attorney or advocate if
applicable
Address
City, State, and Zip Code
Phone Number (of prosecuting attorney, victim’s attorney, or victim
advocate)
[Include all restitution and findings, as authorized by law and
pronounced at sentencing.]
DONE AND ORDERED at County, Florida, on
.....(date)......
Judge
Original: Clerk of the Court
Certified Copy: Victim
Committee Note
1980 Amendment. The proposed changes to rule 3.986 are
housekeeping in nature. References to the Department of Offender
Rehabilitation have been changed to Department of Corrections to
reflect a legislative change. See section 20.315, Florida Statutes
(Supp. 1978). The reference to “hard labor” has been stricken as the
courts have consistently held such a condition of sentence is not
authorized by statute. See, e.g., McDonald v. State, 321 So. 2d 453,
458 (Fla. 4th DCA 1975).
RULE 3.987 cases. MOTION FOR POSTCONVICTION RELIEF
MODEL FORM FOR USE IN MOTIONS FOR
POSTCONVICTION RELIEF PURSUANT TO
FLORIDA RULE OF CRIMINAL PROCEDURE 3.850
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
State of Florida, )
)
v. ) Criminal Division
)
) Case No.:
(your name) ) (the original case
number)
)
)
MOTION FOR POSTCONVICTION RELIEF
Instructions — Read Carefully
(1) This motion must be typewritten or hand-written in
legible printed lettering, in blue or black ink, double-spaced, with
margins no less than 1 inch on white 8 1/2 by 11 inch paper. No
motion, including any memorandum of law, shall exceed 50 pages
without leave of the court upon a showing of good cause. Any false
statement of a material fact may serve as the basis for prosecution
and conviction for perjury. All questions must be answered
concisely in the proper space on the form.
(2) Additional pages are not permitted except with respect to
the facts that you rely upon to support your grounds for relief. No
citation of authorities need be furnished. If briefs or arguments are
submitted in support of your legal claims (as opposed to your
factual claims), they should be submitted in the form of a separate
memorandum of law. This memorandum should have the same
caption as this motion.
(3) No filing fee is required when submitting a motion for
postconviction relief.
(4) Only the judgment of one case may be challenged in a
single motion for postconviction relief. If you seek to challenge
judgments entered in different cases, or different courts, you must
file separate motions as to each such case. The single exception to
this is if you are challenging the judgments in the different cases
that were consolidated for trial. In this event, show each case
number involved in the caption.
(5) Your attention is directed to the fact that you must
include all grounds for relief, and all facts that support such
grounds, in the motion you file seeking relief from any judgment of
conviction.
(6) Claims of newly discovered evidence must be supported
by affidavits attached to your motion. If your newly discovered
evidence claim is based on recanted trial testimony or a newly
discovered witness, the attached affidavit must be from that
witness. For all other newly discovered evidence claims, the
attached affidavit must be from any person whose testimony is
necessary to factually support your claim for relief. If the required
affidavit is not attached to your motion, you must provide an
explanation why the required affidavit could not be obtained.
(7) Your motion must include an oath, under penalties of
perjury, that contains the following:
(a) that you have read the motion or that it has been
read to you;
(b) that you understand the contents of the motion;
and
(c) that all of the facts stated in the motion are true
and correct.
(8) You must also certify, under the threat of sanctions, the
following:
(a) that the motion is being filed in good faith and with
a reasonable belief that it is timely filed;
(b) that the motion has potential merit;
(c) that this motion does not duplicate previous
motions that have been disposed of by the court; and
(d) that you understand English, or if you cannot
understand English, that you have had the motion translated
completely into a language that you do understand, along with the
name and address of the person who translated the motion and a
certification from that person that he or she provided you with an
accurate and complete translation.
(9) When the motion is fully completed, the original must be
mailed to the clerk of the court whose address is (county
where sentence was imposed) County Courthouse, (address
of clerk), or filed through the Florida Courts E-filing Portal, as
stated in Florida Rule of Appellate Procedure 9.420.
MOTION
1. Name and location of the court that entered the judgment of
conviction under attack:
2. Date of judgment of conviction:
3. Length of sentence:
4. Nature of offense(s) involved (all counts):
5. What was your plea? (check only one)
(a) Not guilty
(b) Guilty
(c) Nolo contendere
(d) Not guilty by reason of insanity
If you entered one plea to one count and a different plea to another
count, give details:
6. Kind of trial: (check only one)
(a) Jury
(b) Judge only without jury
7. Did you testify at the trial or at any pretrial hearing?
Yes No
If yes, list each such occasion:
8. Did you appeal from the judgment of conviction?
Yes No
9. If you did appeal, answer the following:
(a) Name of court:
(b) Result:
(c) Date of result:
(d) Citation (if known):
10. Other than a direct appeal from the judgment of conviction
and sentence, have you previously filed any petitions, applications,
motions, etc., with respect to this judgment in this court?
Yes No
11. If your answer to number 10 was “yes,” give the following
information (applies only to proceedings in this court):
(a) (1) Nature of the proceeding:
(2) Grounds raised:
(3) Did you receive an evidentiary hearing on your
petition, application, motion, etc.?
Yes No
(4) Result:
(5) Date of result:
(b) As to any second petition, application, motion, etc., give
the same information:
(1) Nature of the proceeding:
(2) Grounds raised:
(3) Did you receive an evidentiary hearing on your
petition, application, motion, etc.?
Yes No
(4) Result:
(5) Date of result:
12. Other than a direct appeal from the judgment of conviction
and sentence, have you previously filed any petitions, applications,
motions, etc., with respect to this judgment in any other court?
Yes No
13. If your answer to number 12 was “yes,” give the following
information:
(a) (1) Name of court:
(2) Nature of the proceeding:
(3) Grounds raised:
(4) Did you receive an evidentiary hearing on your
petition, application, motion, etc.?
Yes No
(5) Result:
(6) Date of result:
(b) As to any second petition, application, motion, etc., give
the same information:
(1) Name of court:
(2) Nature of the proceeding:
(3) Grounds raised:
(4) Did you receive an evidentiary hearing on your
petition, application, motion, etc.?
Yes No
(5) Result:
(6) Date of result:
(c) As to any third petition, application, motion, etc., give the
same information:
(1) Name of court:
(2) Nature of the proceeding:
(3) Grounds raised:
(4) Did you receive an evidentiary hearing on your
petition, application, motion, etc.?
Yes No
(5) Result:
(6) Date of result:
14. State concisely every ground on which you claim that the
judgment or sentence is unlawful. Summarize briefly the facts
supporting each ground. If necessary, you may attach pages stating
additional grounds and the facts supporting them.
For your information, the following is a list of the most frequently
raised grounds for postconviction relief. Each statement preceded
by a letter constitutes a separate ground for possible relief. You may
raise any grounds that you may have other than those listed.
However, you should raise in this motion all available grounds
(relating to this conviction) on which you base your allegations that
your conviction or sentence is unlawful.
DO NOT CHECK ANY OF THESE LISTED GROUNDS. If you select
one or more of these grounds for relief, you must allege facts. The
motion will not be accepted by the court if you merely check (a)
through (i).
(a) Conviction obtained by plea of guilty or nolo contendere
that was unlawfully induced or not made voluntarily with
understanding of the nature of the charge and the consequences of
the plea.
(b) Conviction obtained by the unconstitutional failure of the
prosecution to disclose to the defendant evidence favorable to the
defendant.
(c) Conviction obtained by a violation of the protection
against double jeopardy.
(d) Denial of effective assistance of counsel.
(e) Denial of right of appeal.
(f) Lack of jurisdiction of the court to enter the judgment or
impose sentence (such as an unconstitutional statute).
(g) Sentence in excess of the maximum authorized by law.
(h) Newly discovered evidence.
(i) Changes in the law that would be retroactive.
A. Ground 1:
Supporting FACTS (tell your story briefly without citing cases
or law):
B. Ground 2:
Supporting FACTS (tell your story briefly without citing cases
or law):
C. Ground 3:
Supporting FACTS (tell your story briefly without citing cases
or law):
D. Ground 4:
Supporting FACTS (tell your story briefly without citing cases
or law):
15. If any of the grounds listed in 14 A, B, C, and D were not
previously presented on your direct appeal, state briefly what
grounds were not so presented and give your reasons they were not
so presented:
16. Do you have any petition, application, appeal, motion, etc.,
now pending in any court, either state or federal, as to the
judgment under attack?
Yes No
17. If your answer to number 16 was “yes,” give the following
information:
(a) Name of court:
(b) Nature of the proceeding:
(c) Grounds raised:
(d) Status of the proceedings:
18. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment attacked
herein.
(a) At preliminary hearing:
(b) At arraignment and plea:
(c) At trial:
(d) At sentencing:
(e) On appeal:
(f) In any postconviction proceeding:
(g) On appeal from any adverse ruling in a postconviction
proceeding:
WHEREFORE, movant requests that the court grant all relief
to which the movant may be entitled in this proceeding, including
but not limited to (here list the nature of the relief sought):
1.
2. Such other and further relief as the court deems just and
proper.
OATH
Under penalties of perjury, I declare that I have read the foregoing
motion, or had it read to me, that I understand the motion’s
content, and that all of the facts alleged in the motion are true and
correct.
/s/
Name
DC#
Certifications and Acknowledgment
I certify that the motion is filed in good faith, that I have a
reasonable belief that the motion is timely filed, has potential
merit, and does not duplicate previous motions that have been
disposed of by the court.
I certify that [choose one]
I understand English and have read the foregoing
motion, or had the motion read to me; or
I cannot understand English and the foregoing
motion was translated completely into a language that I
understand and read to me by .....(name).....,whose address is
.....(address)....., and whose certification of an accurate and
complete translation is attached to this motion.
I understand that I am subject to judicial or administrative
sanctions, including but not limited to forfeiture of gain time, if
this motion is found to be frivolous, malicious, made in bad
faith or with reckless disregard for the truth, or an abuse of the
legal process.
/s/
Name
DC#
Certificate of Mailing
(Must use Certificate of Mailing OR Certificate of Service)
I certify that I placed this document in the hands of . . . .
.(here insert name of institution official). . . . . for mailing to . . . .
.(here insert name or names and addresses used for service). . . . .
on . . . . .(date). . . . . .
/s/
Name
Address
DC#
Certificate of Service
(Must use Certificate of Mailing OR Certificate of Service)
I certify that the foregoing document has been furnished to . . .
. .(here insert name or names, addresses used for service and
mailing addresses). . . . . by (e-mail) (delivery) (mail) (fax) on . . . .
.(date). . . . . .
/s/
Attorney
Certificate of an Accurate and Complete Translation
(To be used if translation of the motion was necessary.)
I certify that a complete and accurate translation of this
motion was provided to the Defendant in this case on . . . . .(date). .
....
/s/
Name
Address
DC#
RULE 3.9875 cases. MOTION FOR JAIL CREDIT
MODEL FORM FOR USE IN MOTIONS FOR
CORRECTION OF JAIL CREDIT PURSUANT TO
FLORIDA RULE OF CRIMINAL PROCEDURE 3.801
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
State of Florida )
)
v. )
)
,)
(your name) )
)
,)
MOTION FOR CORRECTION OF JAIL CREDIT
INSTRUCTIONS FOR FILING MOTION FOR JAIL CREDIT
PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.801
READ CAREFULLY
1. The attached motion is the only type of motion you are
permitted to file to obtain in-state jail credit omitted from your final
sentence. It may not be used to obtain out-of-state jail credit.
2. You must file this motion within 1 year of the date your
sentence became final.
3. Only 1 motion may be filed to obtain jail credit omitted
from your final sentence. No successive motion for jail credit from a
final sentence will be considered.
4. You must complete the attached motion by filling in the
blank spaces.
5. You must tell the truth and sign the attached motion. If
you make a false statement of a material fact in your motion, you
may be prosecuted for perjury.
6. You must file the attached motion in the court that
imposed the sentence on which the jail credit was omitted.
7. You are not required to pay a filing fee to file the attached
motion.
MOTION FOR CORRECTION OF JAIL CREDIT
(hereinafter “defendant”), in pro se fashion,
respectfully moves this Honorable Court for jail credit pursuant to
section 921.161(1), Florida Statutes, and Florida Rule of Criminal
Procedure 3.801. In support of the motion, the defendant states
the following in a question-and-answer format:
1. What is/are the FACT(S) that was/were omitted from any
sentence(s) imposed in this case that entitle you to jail credit?
2. Is this the first motion you have filed requesting this jail
credit?
If you answered NO, how many prior motions have you filed?
As to EACH motion, what was the result?
3. If you have already received jail credit on any sentence(s)
imposed in this case, what was the total time for jail credit on each
sentence?
What dates did this jail credit cover?
Where were you incarcerated?
4. What is the total time for jail credit that you are
requesting in this motion that you have NOT YET RECEIVED on
any sentence(s) imposed in this case?
What dates does this jail credit cover?
Where were you incarcerated?
Did you have any other charge(s) pending during this time frame?
If the answer is YES, as to EACH charge, what is the case number,
name of county, and resolution of charge(s)?
5. Was your sentence the result of a trial or plea?
If your sentence was the result of a plea:
Was it a negotiated plea with the state or was it an open plea
to the court?
Did you sign a written plea agreement?
Did you sign a written rights waiver form?
Did you waive any county jail credit as part of the plea?
If so, how many days did you agree to waive?
6. Under penalties of perjury and administrative sanctions
from the Department of Corrections, including forfeiture of gain
time if this motion is found to be frivolous or made in bad faith, I
certify that I understand the contents of the foregoing motion, that
the facts contained in the motion are true and correct, and that I
have a reasonable belief that the motion is timely filed. I certify that
this motion does not duplicate previous motions that have been
disposed of by the court. I further certify that I understand English
and have read the foregoing motion or had the motion read to me,
or the foregoing motion was translated completely into a language
which I understand and read to me by .....(name)....., whose address
is .....(address)....., and whose certification of an accurate and
complete translation is attached to this motion.
WHEREFORE, the defendant respectfully moves the court to
grant this motion for days of additional jail credit, for a total of
days of credit.
/s/
Name
DC#
Certificate of Mailing
(Must use Certificate of Mailing OR Certificate of Service)
I certify that I placed this document in the hands of .....(here
insert name of institution official)..... for mailing to .....(here insert
name or names and addresses used for service)..... on .....(date)......
/s/
Name
Address
DC#
Certificate of Service
(Must use Certificate of Mailing OR Certificate of Service)
I certify that the foregoing document has been furnished to
.....(here insert name or names, addresses used for service and
mailing addresses)..... by (e-mail) (delivery) (mail) (fax) on
.....(date)......
/s/
Attorney
Certificate of an Accurate and Complete Translation
(To be used if translation of the motion was necessary.)
I certify that a complete and accurate translation of this
motion was provided to the defendant in this case on .....(date)......
/s/
Name
Address
RULE 3.9876 cases. MOTION FOR CORRECTION OF SENTENCE
MOTION FOR CORRECTION OF ILLEGAL SENTENCE, INCORRECT
SENTENCING SCORESHEET, OR ERRONEOUS SEXUAL
PREDATOR DESIGNATION
FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a)
INSTRUCTIONS FOR FILING MOTION FOR CORRECTION OF
SENTENCE
PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE
3.800(a)
READ CAREFULLY
1. The attached motion is to be used to request a correction
of illegal sentence, incorrect calculation in a sentencing scoresheet,
or erroneous sexual predator designation. This form should not be
used for motions for correction of jail credit (see Fla. R. Crim. P.
3.801).
2. No successive motion for correction of incorrect
calculation in a sentencing scoresheet or the correction of
erroneous sexual predator designation will be considered. If a
motion fails to allege new or different grounds for relief, and the
prior determination was on the merits, the motion may be
dismissed.
3. The court records must demonstrate, on their face, that
you are entitled to a correction of sentence or that a sexual predator
designation is erroneous. The records that demonstrate that a
sentence is illegal, that there is an incorrect calculation in a
sentencing scoresheet, or that a sexual predator designation is
erroneous, should be attached to this motion.
4. You must complete the attached motion by filling in the
blank spaces.
5. You must tell the truth and sign the attached motion. If
you make a false statement of a material fact in your motion, you
may be prosecuted for perjury. You must declare that you have read
the motion for relief, or had the motion read to you, that you
understand its contents, and that all of the facts contained in the
motion are true and correct. If you do not answer YES to question
5, your motion will be rejected as incomplete.
6. You must file the attached motion in the court that
imposed the sentence.
7. You are not required to pay a filing fee to file the attached
motion.
In the Circuit Court of the
Judicial Circuit
in and for
County, Florida
State of Florida )
)
v. )
)
)
(your name) )
)
)
MOTION FOR CORRECTION OF ILLEGAL SENTENCE, INCORRECT
SENTENCING SCORESHEET, OR ERRONEOUS SEXUAL
PREDATOR DESIGNATION
(hereinafter “Defendant”), in pro se fashion,
respectfully moves this Honorable Court for correction of:
___ illegal sentence; and/or
___ incorrect calculation in a sentencing scoresheet; and/or
___ erroneous sexual predator designation
pursuant to Florida Rule of Criminal Procedure 3.800(a). In support
of the motion, the defendant states the following in a question-and-
answer format:
1. What are the FACT(S) that entitle you to correction of
sentence?
2. Where in the court’s record is it demonstrated that you
are entitled to correction of sentence, correction of incorrect
calculation in a sentencing scoresheet, or the correction of
erroneous sexual predator designation?
3. Is this the first motion you have filed requesting this
correction of sentence or removal of an erroneous sexual predator
designation?
If you answered NO, how many prior motions have you filed? What
was the claim in each motion?
As to EACH motion, what was the result?
4. What is the correct sentence or designation that you are
requesting in this motion?
5. Under penalties of perjury and administrative sanctions
from the Department of Corrections, including forfeiture of gain
time if this motion is found to be frivolous or made in bad faith, I
certify that I understand the contents of the foregoing motion, that
the facts contained in the motion are true and correct, and that I
have a reasonable belief that the motion is timely filed. I certify that
this motion does not duplicate previous motions that have been
disposed of by the court. I further certify that I understand English
and have read the foregoing motion or had the motion read to me,
or the foregoing motion was translated completely into a language
which I understand and read to me by .....(name)....., whose address
is .....(address)....., and whose certification of an accurate and
complete translation is attached to this motion.
/s/
Name
DC#
Certification of Mailing
(Must use Certification of Mailing OR Certificate of Service)
I certify that I placed this document in the hands of .....(here
insert name of institution official)..... for mailing to .....(here insert
name or names and address(es) used for service)..... on
.....(date)......
/s/
Name
Address
DC#
Certificate of Service
(Must use Certification of Mailing OR Certificate of Service)
I certify that the foregoing document has been furnished to
(here insert name or names, address(es) used for service and
mailing address(es)) by (e-mail) (delivery) (mail) (fax) on .....(date)......
/s/
Attorney
Certification of an Accurate and Complete Translation
(To be used if translation of the motion was necessary.)
I certify that a complete and accurate translation of this
motion was provided to the Defendant in this case on .....(date)......
/s/
Name
Address
DC#
RULE 3.988 cases. SENTENCING GUIDELINES
Editor’s Note: Originally proposed by Sentencing Guidelines
Commission and adopted by Supreme Court September 8, 1983
(439 So. 2d 848). For amendments see 451 So. 2d 824, 468 So.
2d 220, 482 So. 2d 311, 487 So. 2d 1045, 491 So. 2d 1128,
509 So. 2d 1088, 522 So. 2d 374, 544 So. 2d 198, 566 So. 2d
770, 576 So. 2d 1307, 589 So. 2d 271, 613 So. 2d 1307, and
628 So. 2d 1084.
Available on this web page:
http://www.floridabar.org/tfb/TFBLegalRes.nsf/D64B801203BC91
9485256709006A561C/E1A89A0DC5248D1785256B2F006CCCEE
?OpenDocument
RULE 3.989 cases. SWORN STATEMENT; PETITION; AND ORDER TO
EXPUNGE OR SEAL FORMS
(a) Sworn Statement in Support of Petition.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner )
)
SWORN STATEMENT
State of Florida
County of
I, .....(name of defendant/petitioner)....., am the
defendant/petitioner in the above-styled cause and I do hereby
swear or affirm that:
1. I fully understand the meaning of all of the terms of this
sworn statement.
2. I have never been adjudicated guilty of a criminal offense
or a comparable ordinance violation nor adjudicated delinquent for
committing a felony or a misdemeanor specified in section
943.051(3)(b), Florida Statutes.
3. I was arrested on .....(date)....., by .....(arresting
agency)....., and I have not been adjudicated guilty of, nor
adjudicated delinquent for committing, any of the acts stemming
from that arrest or the alleged criminal activity surrounding my
arrest.
4. I am eligible for the relief requested, to the best of my
knowledge and belief, and do not have any other petition to expunge
or seal pending before any court.
5. I have never secured a prior records expunction or
sealing under section 943.0585 or 943.059, Florida Statutes, or
under former section 893.14, 901.33, or 943.058, Florida Statutes,
or the record is otherwise eligible for expunction because it has
been sealed for at least 10 years.
6. (For use in expunction petitions only.) My record of arrest
for this date has been sealed for at least 10 years; or an indictment,
information, or other charging document was not filed against me
for the above criminal transaction; or an indictment, information, or
other charging document filed against me was dismissed by the
prosecutor or the court.
Petitioner
Sworn to and subscribed before me on .....(date)......
NOTARY PUBLIC, or other
person authorized to
administer an oath
Printed, typed, or stamped
commissioned name of Notary
Public
Personally known .......... or produced identification ...........
Type of identification produced ....................
My commission expires:
(b) Order to Expunge.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner. )
)
ORDER TO EXPUNGE UNDER
SECTION 943.0585, FLORIDA STATUTES,
AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date
on a petition to expunge certain records of the petitioner’s arrest on
.....(date)....., by .....(arresting agency)....., for .....(charges)....., and
the court having heard argument of counsel and being otherwise
fully advised in the premises, the court hereby finds the following:
1. The petitioner has never previously been adjudicated
guilty of a criminal offense or a comparable ordinance violation nor
adjudicated delinquent for committing a felony or a misdemeanor
specified in section 943.051(3)(b), Florida Statutes.
2. The petitioner was not adjudicated guilty of nor
adjudicated delinquent for committing any of the acts stemming
from the arrest or criminal activity to which this expunction petition
pertains.
3. The petitioner has not secured a prior records expunction
or sealing under section 943.0585 or 943.059, Florida Statutes, or
under former section 893.14, 901.33, or 943.058, Florida Statutes,
or the record is otherwise eligible for expunction because it has
been sealed for at least 10 years.
4. This record has either been sealed for at least 10 years;
or no indictment, information, or other charging document was ever
filed in this case against the petitioner; or an indictment,
information, or other charging document filed against the defendant
was dismissed by the prosecutor or the court.
5. A Certificate of Eligibility issued by the Florida
Department of Law Enforcement accompanied the petition for
expunction of nonjudicial criminal history records. Whereupon it is
ORDERED AND ADJUDGED that the petition to expunge is
granted. All court records pertaining to the above-styled case shall
be sealed in accordance with the procedures set forth in Florida
Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall
forward a certified copy of this order to the (check one) ..... state
attorney, ..... special prosecutor, ..... statewide prosecutor, .....
.....(arresting agency)....., and the Sheriff of .........................
County, who will comply with the procedures set forth in section
943.0585, Florida Statutes, and appropriate regulations of the
Florida Department of Law Enforcement, and who will further
forward a copy of this order to any agency that their records reflect
has received the instant criminal history record information; and it
is further
ORDERED AND ADJUDGED that .....(arresting agency).....
shall expunge all information concerning indicia of arrest or
criminal history record information regarding the arrest or alleged
criminal activity to which this petition pertains in accordance with
the procedures set forth in section 943.0585, Florida Statutes, and
Florida Rule of Criminal Procedure 3.692.
All costs of certified copies involved herein are to be borne by
the ....................
DONE AND ORDERED in Chambers at .................... County,
Florida, on .....(date)......
Circuit Court Judge
(c) Order to Seal.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner. )
)
ORDER TO SEAL RECORDS UNDER
SECTION 943.059, FLORIDA STATUTES,
AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date
on petitioner’s petition to seal records concerning the petitioner’s
arrest on .....(date)....., by the .....(arresting agency)....., and the
court having heard argument of counsel and being otherwise
advised in the premises, the court hereby finds:
1. The petitioner has never been previously adjudicated
guilty of a criminal offense or comparable ordinance violation nor
adjudicated delinquent for committing a felony or a misdemeanor
specified in section 943.051(3)(b), Florida Statutes.
2. The petitioner was not adjudicated guilty of nor
adjudicated delinquent for committing any of the acts stemming
from the arrest or criminal activity to which the instant petition
pertains.
3. The petitioner has not secured a prior records expunction
or sealing under section 943.0585 or 943.059, Florida Statutes, or
under former section 893.14, 901.33, or 943.058, Florida Statutes.
4. A Certificate of Eligibility issued by the Florida
Department of Law Enforcement accompanied the instant petition
for sealing nonjudicial criminal history records. Whereupon it is
ORDERED AND ADJUDGED that the petition to seal records
is granted. All court records pertaining to the above-styled case
shall be sealed in accordance with the procedures set forth in
Florida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall
forward a certified copy of this order to the (check one) ..... state
attorney, ..... special prosecutor, ..... statewide prosecutor, .....
.....(arresting agency)....., and the ..... Sheriff of ....................
County, who will comply with the procedures set forth in section
943.059, Florida Statutes, and appropriate regulations of the
Florida Department of Law Enforcement, and who will further
forward a copy of this order to any agency that their records reflect
has received the instant criminal history record information; and it
is further
ORDERED AND ADJUDGED that .....(arresting agency).....
shall seal all information concerning indicia of arrest or criminal
history record information regarding the arrest or alleged criminal
activity to which this petition pertains in accordance with the
procedures set forth in section 943.059, Florida Statutes, and
Florida Rule of Criminal Procedure 3.692.
All costs of certified copies involved herein are to be borne by
the ....................
DONE AND ORDERED in Chambers at .................... County,
Florida, on .....(date)......
Circuit Court Judge
(d) Petition to Expunge or Seal.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner )
)
PETITION TO EXPUNGE OR SEAL
The petitioner, ...................., by and through the undersigned
attorney, petitions this honorable court, under Florida Rule of
Criminal Procedure 3.692 and section .0585, or ..... section
943.059 Florida Statutes, to .....expunge/seal..... all criminal
history record information in the custody of any criminal justice
agency and the official records of the court concerning the
petitioner’s arrest on .....(date)....., by .....(arresting agency)....., for
.....(charges)....., and as grounds therefor shows:
1. On .....(date)....., the petitioner, ...................., a
.....(race/sex)....., whose date of birth is .....(date of birth)....., was
arrested by .....(arresting agency)....., and charged with
.....(charges)......
2. The petitioner has not been adjudicated guilty of nor
adjudicated guilty of committing any of the acts stemming from this
arrest or alleged criminal activity.
3. The petitioner has not been previously adjudicated guilty
of a criminal offense or a comparable ordinance violation, in this
state nor adjudicated delinquent for committing a felony or a
misdemeanor specified in section 943.051(3)(b), Florida Statutes.
4. The petitioner has not secured a prior records expunction
or sealing under section 943.0585 or 943.059, Florida Statutes, or
under former section 943.058, 893.14, Florida Statutes, or 901.33,
Florida Statutes.
5. (To be used only when requesting expunction.) The
petitioner’s record has been sealed under section 943.059, Florida
Statutes, or under former section 943.058, 893.14, or 901.33,
Florida Statutes, for at least 10 years; or there has not been an
indictment, information, or other charging document filed against
the petitioner who is the subject of this criminal history record
information; or an indictment, information, or other charging
document filed against the petitioner who is the subject of this
criminal history information was dismissed by the prosecutor or the
court.
6. A Certificate of Eligibility for .....expunction/sealing..... of
nonjudicial criminal history records issued by the Florida
Department of Law Enforcement accompanies this petition.
WHEREFORE, the petitioner moves to .....expunge/seal.....
any criminal history record information and any official court
records regarding his/her arrest by .....(arresting agency)....., for
.....(charges)....., on .....(date)......
I HEREBY CERTIFY that a true and correct copy of the
foregoing pleading has been served on .....(name of prosecuting
authority)....., (check one) ..... State Attorney for the .......... Judicial
Circuit, in and for .................... County, ..... Special Prosecutor, .....
Statewide Prosecutor; .....(arresting agency).....; ....................
(Sheriff of county in which defendant was arrested, if different); and
the Florida Department of Law Enforcement, on .....(date)......
Name:
Address:
City/State:
Telephone Number:
E-mail Address:
Fla. Bar No.:
Committee Notes
1984 Adoption. In order to have uniformity throughout the
state, the committee proposes these forms for petition to expunge or
seal, order to seal, and order to expunge and affidavit. These also
should be a great asset to counsel and an invaluable asset to the
clerks and FDLE, etc., who will be receiving orders in the future.
The subcommittee working on these proposed forms has contacted
law enforcement agencies, clerks, etc., for their input as to these
proposed forms.
2019 Amendment. Subdivisions addressing human
trafficking were moved to rule 3.9895.
RULE 3.9895 cases HUMAN TRAFFICKING: SWORN STATEMENT;
PETITION; AND ORDER TO EXPUNGE OR SEAL
RECORDS
(a) Petition to Expunge; Human Trafficking Victim.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner )
)
PETITION TO EXPUNGE/HUMAN TRAFFICKING VICTIM
The petitioner, ...................., by and through the undersigned
attorney, petitions this honorable court, under Florida Rule of
Criminal Procedure 3.693 and section 943.0583, Florida Statutes,
to expunge all criminal history record information in the custody of
any criminal justice agency and the official records of the court
concerning the petitioner’s arrest and/or conviction on
.....(date(s))....., by .....(arresting agency and/or prosecuting
authority)....., for .....(charges and/or offenses)....., and as grounds
therefor shows:
1. On .....(date(s))....., the petitioner, ...................., a
.....(race/sex)....., whose date of birth is .....(date of birth)....., was
arrested by .....(arresting agency)....., and charged with
.....(charges)..... or was convicted by .....(name of prosecuting
authority)..... of .....(offenses)......
2. The petitioner has been the victim of human trafficking,
as discussed in section 787.06, Florida Statutes, and has
committed, or is reported to have committed, an offense, other than
those offenses listed in section 775.084(1)(b)1, Florida Statutes,
which was committed, or reported to have been committed, as a
part of a human trafficking scheme of which he/she was the victim
or at the direction of an operator of the scheme as evidenced by the
attached official documentation of his/her status, or may be shown
by clear and convincing evidence presented to the Court.
WHEREFORE, the petitioner moves to expunge any criminal
history record information and any official court records regarding
his/her arrest and/or conviction by .....(arresting agency and/or
name of prosecuting authority)....., for .....(charges and/or
offenses)....., on .....(date(s))......
I HEREBY CERTIFY that a true and correct copy of the
foregoing pleading has been served on .....(name of prosecuting
authority)....., (check one) ..... State Attorney for the .......... Judicial
Circuit, in and for .................... County, ..... Special Prosecutor, .....
Statewide Prosecutor; .....(arresting agency).....; and ....................
(Sheriff of county in which defendant was arrested, if different); on
.....(date)......
Name:
Address:
City/State:
Telephone Number:
E-mail Address:
Fla. Bar No.:
Personally known ………. or produced identification ……….
Type of identification procedure ………..
My commission expires:
(b) Sworn Statement in Support of Petition; Human
Trafficking Victim.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner )
)
SWORN STATEMENT/HUMAN TRAFFICKING VICTIM
State of Florida
County of
I, .....(name of defendant/petitioner)....., am the
defendant/petitioner in the above-styled cause and I do hereby
swear or affirm that:
1. I fully understand the meaning of all of the terms of this
sworn statement.
2. I have been the victim of human trafficking, as discussed
in section 787.06, Florida Statutes, and have committed, or was
reported to have committed, an offense, other than those offenses
listed in section 775.084(1)(b)1, Florida Statutes, which was
committed, or reported to have been committed, as a part of a
human trafficking scheme of which I was the victim or at the
direction of an operator of the scheme.
3. I was arrested and/or convicted on .....(date(s))....., by
.....(arresting agency and/or name of prosecuting authority)......
4. I am eligible for the relief requested, to the best of my
knowledge and belief.
Petitioner
Sworn to and subscribed before me on .....(date)......
NOTARY PUBLIC, or other
person authorized to
administer an oath
Printed, typed, or stamped
commissioned name of Notary
Public
Personally known .......... or produced identification ...........
Type of identification produced ....................
My commission expires:
(c) Order to Expunge; Human Trafficking Victim.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
,)
)
Defendant/Petitioner )
)
ORDER TO EXPUNGE, HUMAN TRAFFICKING VICTIM,
UNDER SECTION 943.0583, FLORIDA STATUTES,
AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.693
THIS CAUSE, having come on to be heard before me this date
upon a petition to expunge certain records of the petitioner’s arrest
and/or conviction on .....(date(s))....., by .....(arresting agency
and/or name of prosecuting authority)....., for .....(charges and/or
offenses)....., and the court having heard argument of counsel and
being otherwise fully advised in the premises, the court hereby finds
the following:
The petitioner has been the victim of human trafficking, as
discussed in section 787.06, Florida Statutes, and has committed
an offense, or is reported to have committed, other than those
offenses listed in section 775.084(1)(b)1, Florida Statutes, which
was committed, or reported to have been committed, as a part of a
human trafficking scheme of which he/she was the victim, or at the
direction of an operator of the scheme. A conviction expunged
under this section is deemed to have been vacated due to a
substantive defect in the underlying criminal proceedings.
Whereupon it is
ORDERED AND ADJUDGED that the petition to expunge is
granted. All court records pertaining to the above-styled case shall
be sealed in accordance with the procedures set forth in Florida
Rule of Criminal Procedure 3.693; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall
forward a certified copy of this order to the (check one) ..... state
attorney, ..... special prosecutor, ..... statewide prosecutor, .....
.....(arresting agency)....., and the Sheriff of .........................
County, who will comply with the procedures set forth in section
943.0583, Florida Statutes, and appropriate regulations of the
Florida Department of Law Enforcement, and who will further
forward a copy of this order to any agency that their records reflect
has received the instant criminal history record information; and it
is further
ORDERED AND ADJUDGED that .....(arresting agency).....
shall expunge all information concerning indicia of arrest,
conviction, or criminal history record information regarding the
arrest, conviction, or alleged criminal activity to which this petition
pertains in accordance with the procedures set forth in section
943.0583, Florida Statutes, and Florida Rule of Criminal Procedure
3.693.
DONE AND ORDERED in Chambers at .................... County,
Florida, on .....(date)......
Circuit Court Judge
Committee Notes
2019 Amendment. Rule 3.9895 was previously a part of rule
3.989.
RULE 3.990 cases. SENTENCING GUIDELINES SCORESHEET
RULE 3.991 cases. SENTENCING GUIDELINES SCORESHEETS
(OCTOBER 1, 1995)
RULE 3.992 cases. CRIMINAL PUNISHMENT CODE SCORESHEET
THE SCORE SHEETS CAN BE FOUND ON THIS WEBPAGE:
HTTPS://WWW.FLORIDABAR.ORG/RULES/CTPROC/
RULE 3.993 cases. FORMS RELATED TO CAPITAL
POSTCONVICTION RECORDS PRODUCTION
(a) Notice to State Attorney of Affirmance of Death
Penalty.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE TO STATE ATTORNEY OF
AFFIRMANCE OF DEATH PENALTY
TO:
[name of state attorney and circuit]
The Attorney General of the State of Florida, under Florida
Rule of Criminal Procedure 3.852(d)(1), gives notice that on
....(date)...., the Florida Supreme Court issued its mandate affirming
the death sentence in this case.
Within 15 days after receipt of this notice, you should provide
written notice to each law enforcement agency involved in this case.
Within 90 days after receipt of this notice, you and each law
enforcement agency involved in this case, should copy, index, and
deliver to the records repository of the Secretary of State all public
records that were produced in the investigation or prosecution of
this case, except those previously filed in the trial court.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on .....(name of trial court)....., .....(name
of state attorney)....., and .....(name of trial counsel for
defendant)..... on .....(date)......
[name, address, and e-mail
address of
attorney general]
(b) Notice to Secretary of Department of Corrections of
Affirmance of Death Penalty.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE TO SECRETARY OF DEPARTMENT OF CORRECTIONS
OF AFFIRMANCE OF DEATH PENALTY
TO:
[name of Secretary of Department of Corrections]
The Attorney General of the State of Florida, under Florida
Rule of Criminal Procedure 3.852(d)(1), gives notice that on
.....(date)....., the Florida Supreme Court issued its mandate
affirming the death sentence in this case.
Within 90 days after receipt of this notice, you should copy,
index, and deliver to the records repository of the Secretary of State
all public records determined by your department to be relevant to
the subject matter of a proceeding under Florida Rule of Criminal
Procedure 3.850 or 3.851 unless the production of these records
would be unduly burdensome.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of Secretary of Department of Corrections)….., and …..(name of trial
counsel for defendant)….. on .....(date)......
[name, address, and e-mail
address of attorney general]
(c) Notice by State Attorney to Law Enforcement Agency.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF AFFIRMANCE OF DEATH PENALTY
AND TO PRODUCE PUBLIC RECORDS
TO:
[name of chief law enforcement officer]
The State Attorney of the Judicial Circuit of the State of
Florida, under Florida Rule of Criminal Procedure 3.852(e)(1),
hereby gives notice to …..(name of chief law enforcement officer and
agency)….., that was involved in this case by investigation, arrest,
prosecution or incarceration, that on .....(date)....., the Florida
Supreme Court issued its mandate affirming the death sentence in
this case.
Within 90 days after receipt of this notice, you and each law
enforcement agency involved in this case should copy, index, and
deliver to the records repository of the Secretary of State all public
records that were produced in the investigation, arrest, prosecution,
or incarceration of this case, except those filed in the trial court.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)……, …..(name
of chief law enforcement officer)….., …..(name of attorney
general)….., and …..(name of collateral counsel)….., on .....(date)......
[name, address, and e-mail
address of state attorney]
(d) Notice of Compliance by State Attorney.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF COMPLIANCE BY STATE ATTORNEY
TO:
[name, address, and e-mail address of attorney general]
The State Attorney for the _____________ Judicial Circuit gives
notice to the Attorney General of compliance by delivery of public
records involving this case to the records repository of the Secretary
of State. To the best of my knowledge and belief, all public records
in my possession that were produced in the investigation or
prosecution of the case, except those previously filed in the trial
court, have been copied, indexed, and delivered to the records
repository of the Secretary of State as required by Florida Rule of
Criminal Procedure 3.852(e)(2).
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., and …..(name of collateral counsel)….. on
.....(date)......
[name, address, and e-mail
address of attorney general]
(e) Notice of Compliance by the Secretary of the
Department of Corrections.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF COMPLIANCE BY THE SECRETARY
OF THE DEPARTMENT OF CORRECTIONS
TO:
[name, address, and e-mail address of attorney general]
The Secretary of the Department of Corrections, having
received notice of the affirmance of the death penalty in this case
from the Attorney General on .....(date)....., hereby gives notice and
certifies that, to the best of my knowledge and belief, all public
records determined by the Department to be relevant to the subject
matter of a proceeding under Florida Rule of Criminal Procedure
3.850 or 3.851, except those previously filed in the trial court, have
been copied, indexed, and delivered to the records repository of the
Secretary of State.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., …..(name of state attorney)….., and
…..(name of collateral counsel)….., on .....(date)......
[name, address, and e-mail
address of
Secretary of Department of
Corrections]
(f) Notice of Compliance by Law Enforcement Agency.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF COMPLIANCE BY LAW ENFORCEMENT AGENCY
TO:
[name, address, and e-mail address of attorney general]
…..(name of chief law enforcement officer and agency)….. that
was involved in this case by an investigation, arrest, prosecution, or
incarceration, hereby gives notice to the Attorney General of
compliance by delivery of public records involving this case to the
records repository of the Secretary of State. I further certify that, to
the best of my knowledge and belief, all public records in
possession of this agency or in the possession of any employee of
this agency that were produced in the investigation or prosecution
of the case, except those previously filed in the trial court, have
been copied, indexed, and delivered to the records repository of the
Secretary of State.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., …..(name of state attorney)….., and
…..(name of collateral counsel)….., on .....(date)......
[name, address, and e-mail
address of
chief law enforcement officer]
(g) Notice to Attorney General of Pertinent Information.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
STATE ATTORNEY’S NOTICE TO ATTORNEY GENERAL
OF PERTINENT INFORMATION
TO:
[name, address, and e-mail address of attorney general]
The undersigned …..(name of state attorney)….. hereby gives
notice to the Attorney General of the following name(s) and
address(es) of any person or agency having information pertinent to
this case in addition to those persons and agencies who previously
furnished public records to the records repository of the Secretary
of State:
[list names and addresses of persons or agencies]
Please provide prompt written notification to each identified
person or agency of the duty to deliver to the records repository of
the Secretary of State all public records pertaining to this case,
except those previously filed in the trial court.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., and …..(name of public defender or defense
counsel)…., on .....(date)......
[name, address, and e-mail
address of
attorney general]
(h) Notice to Attorney General of Pertinent Information.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
TRIAL COUNSEL’S NOTICE TO ATTORNEY
GENERAL OF PERTINENT INFORMATION
TO:
[name, address, and e-mail address of attorney general]
The undersigned …..(name of public defender or other
counsel)….., for …..(name of defendant)….. hereby gives notice to
the Attorney General of the following name(s) and address(es) of
persons or agencies that may have information pertinent to this
case, in addition to those previously furnished to collateral counsel.
[list names and addresses of persons or agencies]
Please provide prompt written notification to each identified
person or agency of the duty to deliver to the records repository of
the Secretary of State all public records pertaining to this case,
except those previously filed in the trial court.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., and …..(name of state attorney)….., on
.....(date)......
[name, address, and e-mail
address of
trial counsel]
(i) Notice by Attorney General to Person or Agency
Having Pertinent Information.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE BY ATTORNEY GENERAL TO PERSON
OR AGENCY HAVING PERTINENT INFORMATION
TO:
[name, address, and e-mail address of person or agency]
Pursuant to Florida Rule of Criminal Procedure 3.852(d)(2),
the undersigned has been notified by …..(name of trial counsel or
state attorney)….., that you have public records pertinent to this
case.
Under the provisions of rule 3.852(e)(5), you must:
1. Within 90 days of receipt of this notice, copy, index, and
deliver to the records repository of the Secretary of State all public
records in your possession pertinent to this case, except those
previously filed in the trial court; and
2. Provide written notice to me that you have complied with
these provisions.
I HEREBY CERTIFY that a true and correct copy of the
pleading has been served on …..(name of person or agency)…... and
…...(name of trial court)….., on .....(date)......
[name, address, and e-mail
address of
attorney general]
(j) Notice of Compliance by Person or Agency.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF COMPLIANCE BY PERSON OR AGENCY
TO:
[name, address, and e-mail address of attorney general]
The undersigned having received notice under Florida Rule of
Criminal Procedure 3.852(e)(5) from the Attorney General on
.....(date)....., to copy, index, and deliver all public records in my
possession or in the possession of the undersigned agency to the
records repository of the Secretary of State, hereby gives notice to
the Attorney General and further certifies that, to the best of my
knowledge and belief, all of these public records in my possession
or in the possession of the undersigned agency pertaining to this
case, except those previously filed in the trial court, have been
copied, indexed, and delivered to the records repository of the
Secretary of State.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney general)….., …..(name of state attorney)….., and
…..(name of collateral counsel)….., on .....(date)......
[name, address, and e-mail
address of
person or agency]
(k) Defendant’s Demand for Production of Additional
Public Records Pertaining to Defendant’s Case.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
DEFENDANT’S DEMAND FOR ADDITIONAL PUBLIC
RECORDS PERTAINING TO DEFENDANT’S CASE
TO:
[name, address, and e-mail address of person or agency]
The defendant, by and through undersigned counsel, hereby
makes demand of …..(name of person or agency submitting public
records)….., under Florida Rule of Criminal Procedure 3.852(i), for
additional public records pertinent to this case.
1. Undersigned counsel represents that, after a timely and
diligent search, the records specifically described below:
(a) are relevant to a pending proceeding under rule
3.850; or
(b) appear reasonably calculated to lead to the
discovery of admissible evidence; and
(c) have not been obtained previously in discovery or
from a prior public records request from either the above-named
person or agency or any other; and
(d) presently are not available from the public records
repository.
2. The public records requested are as follows:
[list public records requested]
3. Under rule 3.852, any objection to production, including
any claim of exemption, must be filed with the trial court and
served on all counsel of record within 60 days of receipt of this
demand, or that objection will be considered waived.
4. Under rule 3.852, you shall, within 90 days after receipt
of this demand:
(a) copy, index, and deliver to the records repository of
the Secretary of State any additional public records in the
possession of your agency that pertain to this case; and
(b) certify that, to the best of your knowledge and
belief, all additional public records have been delivered to the
records repository of the Secretary of State; and
(c) recertify that the public records previously delivered
are complete if no additional public records are found.
[name of attorney for
defendant]
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of person or agency)….., …..(name of attorney general)….., and
…..(name of state attorney)….., on .....(date)......
[name, address, and e-mail
address of
attorney for defendant]
(l) Objection to Defendant’s Request for Production of
Additional Public Records Pertaining to Defendant’s Case and
Motion for Hearing.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
OBJECTION TO DEFENDANT’S REQUEST FOR PRODUCTION
OF ADDITIONAL PUBLIC RECORDS PERTAINING TO
DEFENDANT’S CASE AND MOTION FOR HEARING
The undersigned person or agency, having received on
.....(date)..... defendant’s demand for production of additional public
records pertaining to defendant’s case, hereby files this objection
and respectfully moves the court to hold a hearing to determine if
the requirements of Florida Rule of Criminal Procedure 3.852[(g)(3)]
have been met. The grounds for this objection are:
[specify grounds and identify records]
Respectfully submitted,
[name of attorney]
Attorney for
[name of person or agency]
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of attorney for defendant)….., and …..(name of attorney general)…..,
on .....(date)......
[name, address, and e-mail
address of
attorney]
(m) Notice of Delivery of Exempt Public Records to
Records Repository.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF DELIVERY OF EXEMPT PUBLIC
RECORDS TO RECORDS REPOSITORY
TO: Records Repository
[address of records repository]
The undersigned, …..(name of person or agency)….., hereby
gives notice to the records repository of the Secretary of State that
certain delivered records are confidential or exempt from the
requirements of section 119.07(1), Florida Statutes. These public
records have been separately contained without being redacted,
sealed, and the nature of the public records and the legal basis
under which the public records are exempt has been identified.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of records repository)….., …..(name of attorney general)…..,
…..(name of state attorney)….., and …..(name of collateral
counsel)….., on .....(date)......
[name, address, and e–mail
address of
person or agency]
(n) Order to Deliver Exempt Public Records to the Clerk
of Circuit Court.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
ORDER TO DELIVER EXEMPT
PUBLIC RECORDS
TO: Records Repository
[address of records repository]
This court having received notice on .....(date)....., that certain
records for which a claim of confidentiality or exemption from
disclosure has been made have been copied, indexed, separately
contained without being redacted, sealed, identified as to their
nature and the legal basis for their confidentiality or exemption,
and delivered to the records repository of the Secretary of State, it is
ordered that said records be delivered to …..(name of clerk of circuit
court)….. for further proceedings consistent with Florida Rule of
Criminal Procedure 3.852(f). …..(name of moving party)….. shall
bear all costs associated with the transportation and inspection of
these records by the trial court.
DONE AND ORDERED in County, Florida, on
.....(date)......
Judge
Judge’s address and e-mail
address
(o) Notice of Delivery of Exempt Public Records to the
Clerk of Circuit Court.
In the Circuit Court of the
Judicial Circuit, in and for
County, Florida
Case No.
Division
State of Florida,
Plaintiff,
v.
,
Defendant.
NOTICE OF DELIVERY OF EXEMPT
PUBLIC RECORDS TO CLERK
OF CIRCUIT COURT
TO:
[name, address, and e-mail address of clerk of circuit court]
The Secretary of State, by and through the undersigned,
having received an appropriate court order under Florida Rule of
Criminal Procedure 3.852, hereby gives notice that the sealed
container(s) of exempt public records has/have been shipped to the
above-listed clerk of circuit court. Under the provisions of rule
3.852(f)(2), these public records may be opened only for an
inspection by the trial court in camera.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been served on …..(name of trial court)….., …..(name
of clerk of circuit court)….., …..(name of attorney general)….., and
…..(name of collateral counsel)….., on .....(date)......
[name of secretary of state]
By:
[name of representative of
secretary
of state]
Address and e-mail address
RULE 3.994 cases. ORDER CERTIFYING NO INCARCERATION
In the Court of the
Judicial Circuit
in and for
County, Florida
Case No.:
Division
State of Florida )
Plaintiff, )
)
v. )
)
(name) ,)
Defendant. )
)
ORDER CERTIFYING NO INCARCERATION
1. The court hereby certifies that it will not impose any
period of incarceration upon the defendant if there is a finding of
guilt, a plea of guilty or nolo contendere on the substantive
charge(s), or any probation revocation in this case.
2. The court hereby finds that the defendant is not
incarcerated in this case.
3. Accordingly,
[] The court declines to appoint counsel in this case.
[] The court having found that the defendant will not be
substantially prejudiced by the discharge of appointed counsel,
counsel is discharged in this case.
[] The court finds that the defendant would be substantially
prejudiced by the discharge of appointed counsel and, therefore, the
Court will not discharge counsel in this case.
4. This certification of no incarceration may be withdrawn
by the court after notice to the defendant unless the court has
made a finding of guilt or the defendant has pled guilty or nolo
contendere.
5. If this order certifying no incarceration is withdrawn after
appointed counsel has been discharged pursuant to this order,
there shall be an immediate redetermination of indigency and
appointment of counsel.
DONE AND ORDERED at .........., Florida, on .....(date)......
Judge
RULE 3.995 cases. ORDER OF REVOCATION OF PROBATION /
COMMUNITY CONTROL
Officer
Office Location
Judge/Division
In the Circuit/County Court,
County, Florida
Case Number
State of Florida
v.
Defendant
ORDER OF REVOCATION OF
PROBATION/COMMUNITY CONTROL
THIS CAUSE, having been brought upon an affidavit of
violation of probation/community control, and it appearing that the
defendant was placed on probation/community control in
accordance with the provisions of Chapter 948, Florida Statutes
and, it further appearing that the defendant,
___ entered an admission to a material violation(s), or
___ after hearing has been found by the Court to be in
material violation of the following conditions(s):
IT IS THEREFORE ORDERED AND ADJUDGED that the
probation/community control of the defendant be revoked in
accordance with Section 948.06, Florida Statutes.
DONE AND ORDERED IN OPEN COURT, this ___ day of
__________.
Judge
RULE 3.996. APPLICATION FOR SENTENCE REVIEW
HEARING
APPLICATION FOR SENTENCE REVIEW HEARING UNDER
FLORIDA RULE OF CRIMINAL PROCEDURE 3.802
INSTRUCTIONS FOR FILING APPLICATION FOR SENTENCE REVIEW HEARING
PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.802. READ
CAREFULLY
1. You may file this application at any point after you are statutorily eligible, pursuant to
section 921.1402, Florida Statutes.
2. You must complete the attached application by filling in the blank spaces.
3. You must tell the truth and sign the attached application. If you make a false statement of
a material fact in your application, you may be prosecuted for perjury.
4. You must file the attached application in the court of original jurisdiction, which imposed
the sentence to be reviewed.
5. You are not required to pay a filing fee to file the attached application.
6. A second or successive application shall be denied without a hearing unless the initial
application was denied as premature, or pursuant to section 921.1402(2)(d), Florida Statutes, the
initial application was submitted by a juvenile offender sentenced to a term of 20 years or more
under section 775.082(3)(c), Florida Statutes, and more than 10 years has elapsed since the initial
sentence review hearing.
In the Circuit Court of the
Judicial Circuit
in and for
County, Florida
State of Florida )
)
v. )
)
)
(your name) )
)
)
APPLICATION FOR SENTENCE REVIEW HEARING
1. .....(print your name)....., hereinafter “juvenile offender,” respectfully moves this
Honorable Court to hold a sentence review hearing pursuant to Florida Rule of Criminal
Procedure 3.802 and section 921.1402, Florida Statutes. In support of the application, the
juvenile offender states the following:
2. Juvenile offender has attached a copy of the written judgment and sentence to this
application or filled out the following:
On .....(date of sentencing/resentencing)....., juvenile offender was sentenced to
.....(number of years)..... in prison with a sentence review hearing after .....(number of years)......
3. Juvenile offender is entitled to a sentence review hearing because it has been
.....(number of years)..... since juvenile offender was incarcerated for the convictions that are the
subject of this application.
4. Has a previous application been filed?
a. If yes, what was the date the previous application was filed?
b. What was the disposition of the previous application?
5. Juvenile offender is indigent and will be seeking the appointment of counsel for
the sentence review hearing as authorized by section 921.1402(5), Florida Statutes; (only if
applicable);
6. Under penalties of perjury and administrative sanctions from the Department of
Corrections, including forfeiture of gain time if this application is found to be frivolous or made
in bad faith, I certify that I understand the contents of the foregoing application, that the facts
contained in the application are true and correct, and that I have a reasonable belief that the
application is timely filed.
/s/
Name
DC#
Certification of Mailing
(Must use Certification of Mailing OR Certificate of Service)
I certify that I placed this document in the hands of .....(here insert name of
institution official) for mailing to .....(here insert name or names and address(es) used for
service) on .....(date)......
/s/
Name
Address
DC#
Certificate of Service
(Must use Certification of Mailing OR Certificate of Service)
I certify that the foregoing document has been furnished to (here insert name or names,
address(es) used for service and mailing address(es)) by (e-mail) (delivery) (mail) (fax) on
.....(date)......
/s/
Attorney
Certification of an Accurate and Complete Translation
(To be used if translation of the application was necessary.)
I certify that a complete and accurate translation of this application was provided to the
juvenile offender in this case on .....(date)......
/s/
Name
Address
DC#