RULE 3.852. 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.