Florida Rule of Criminal Procedure 3.160
RULE 3.160. 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.
(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.