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).