RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE
HAS BEEN IMPOSED AND AFFIRMED ON DIRECT
APPEAL

(a) Scope. This rule shall apply to all postconviction
proceedings that commence upon 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 shall apply 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) Upon the issuance of the mandate affirming a
judgment and sentence of death on direct appeal, the Supreme
Court of Florida shall 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 shall 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 shall 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 shall 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 shall rule on the motion and appoint new
postconviction counsel if necessary. The appointment of new
collateral counsel shall 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
shall be designated as lead counsel for the defendant. The lead
counsel shall be the defendant’s primary lawyer in all state court
litigation. No lead counsel shall be 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
shall 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. Upon 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 shall 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 shall maintain the confidentiality
of all confidential information received. Postconviction counsel shall
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 shall 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 shall 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 shall 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 shall be filed or considered pursuant to
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, shall 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 shall not exceed 75 pages exclusive of the attachments.
Each claim or subclaim shall be separately pled and shall be
sequentially numbered beginning with claim number 1. If upon
motion or upon the court’s own motion, a judge determines that
this portion of the rule has not been followed, the judge shall give
the movant 30 days to amend. If no amended motion is filed, the
judge shall deem the non-compliant claim, subclaim, and/or
argument waived. Attachments shall include, but are not limited to,
the judgment and sentence. The memorandum of law shall set forth
the applicable case law supporting the granting of relief as to each
separately pled claim. This rule does not authorize relief based
upon 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 shall 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 shall
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 shall 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 shall not exceed 25 pages, exclusive
of attachments, and shall 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 upon 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 shall be filed with the clerk of the trial
court and served on the assigned judge, opposing party, and the
attorney general. Upon the filing of any original court document in
the postconviction proceeding, the clerk of the trial court shall
determine that the assigned judge has received a copy. All motions
other than the postconviction motion itself shall be accompanied by
a notice of hearing.

(2) Duty of Clerk. A motion filed under this rule shall be
immediately delivered to the chief judge or the assigned judge along
with the court file.

(3) Answer.
(A) Answer to the Initial Motion. Within 60 days of
the filing of an initial motion, the state shall file its answer. The
answer and accompanying memorandum of law shall not exceed 75
pages, exclusive of attachments and exhibits. The answer shall
address the legal insufficiency of any claim in the motion, respond
to the allegations of the motion, and address any procedural bars.
The answer shall 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 shall 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 shall file its answer.
The answer shall not exceed 25 pages, exclusive of attachments and
exhibits. The answer shall use the same claim numbering system
contained in the defendant’s motion. The answer shall 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 shall
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 shall 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 shall hold a case management conference. At the case
management conference, the defendant shall disclose all
documentary exhibits that he or she intends to offer at the
evidentiary hearing and shall 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 shall be specifically
designated on the witness list and copies of all expert reports shall
be attached. Within 60 days after the case management conference,
the state shall disclose all documentary exhibits that it intends to
offer at the evidentiary hearing and shall 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 shall be
specifically designated on the witness list and copies of all expert
reports shall be attached. At the case management conference, the
trial court shall:

(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 shall hold a case management
conference. At the case management conference, the trial court also
shall 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 shall schedule the
hearing to be held within 90 days. If a death warrant has been
signed, the trial court shall 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. Upon motion, or upon 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 shall
order a transcript of the hearing, which shall 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 shall be filed by both parties within 30 days of the filing
of the transcript of the hearing. No answer or reply arguments shall
be allowed. Written arguments shall be in compliance with the
requirements for briefs in rule 9.210(a)(1) and (a)(2), shall not
exceed 60 pages without leave of court, and shall 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 shall render its order
within 30 days of the filing of the transcript of the hearing. If the
court permits written closing arguments, the court shall 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 shall 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 shall resolve all the
claims raised in the motion and shall be considered the final order
for purposes of appeal. The clerk of the trial court shall promptly
serve upon 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 shall 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 shall 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 shall 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 shall 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 shall 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. Pursuant to 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 shall 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 shall 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 shall be in
writing and shall 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 shall 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 shall 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 shall:

(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 shall be
submitted and to whom it shall be submitted.

(7) Counsel for both the death-sentenced defendant
and the state may be present at the examination, which shall be
conducted at a date and time convenient for all parties and the
Department of Corrections.

(8) On appointment by the court, the experts shall
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 shall evaluate
the defendant as ordered.

(A) The experts first shall 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 shall 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
shall:

(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 shall report on
any recommended treatment for the defendant to attain competence
to proceed. In considering the issues relating to treatment, the
experts shall 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
shall 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
shall enter its order so finding and shall proceed with a
postconviction motion. The defendant shall 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 shall 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 shall follow the procedures set forth in rule
3.212(c), except that, to the extent practicable, any treatment shall
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 shall take precedence over all other cases.
The assigned judge shall 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 shall not apply after a death warrant has been signed. All
motions shall 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 shall 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 shall be considered successive motions and
subject to the content requirement of subdivision (e)(2) of this rule.

(6) Case Management Conference. The assigned judge
shall 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
shall set a time for filing a postconviction motion and shall 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 shall 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 shall 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 shall be transcribed
expeditiously considering the time limitations set by the execution
date.

(8) Procedures After Hearing. The court shall obtain a
transcript of all proceedings and shall render its order as soon as
possible after the hearing is concluded. A copy of the final order
shall be electronically transmitted to the Supreme Court of Florida
and to the attorneys of record.

(9) Transmittal of Record. The record shall 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 shall also be electronically transmitted if the technology
is available. A notice of appeal shall not be 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 shall 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 shall review the motion and the
responses and schedule a hearing. The defendant, collateral
counsel, and the state shall be present at the hearing.

(4) The judge shall examine the defendant at the
hearing and shall hear argument of the defendant, collateral
counsel, and the state. No fewer than 2 or more than 3 qualified
experts shall 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 shall file reports with the court setting forth their findings.
Thereafter, the court shall 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 shall 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 previously discharged
pursuant to this rule, collateral counsel eligible pursuant to rule
3.112 must be appointed within thirty days of May 5, 2022.

(j) Attorney General Notification to Clerk. The Office of
the Attorney General shall 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 shall 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.