Florida Rules of Criminal Procedure
Table of Contents
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES ............ 10
I. SCOPE, PURPOSE, AND CONSTRUCTION ............................................. 14
RULE 3.010. SCOPE ...................................................................................... 14
RULE 3.020. PURPOSE AND CONSTRUCTION ....................................... 15
RULE 3.025. STATE AND PROSECUTING ATTORNEY DEFINED ....... 15
II. GENERAL PROVISIONS ............................................................................ 16
RULE 3.030. SERVICE OF PLEADINGS AND PAPERS ........................... 16
RULE 3.040. COMPUTATION OF TIME .................................................... 16
RULE 3.050. ENLARGEMENT OF TIME ................................................... 17
RULE 3.060. TIME FOR SERVICE OF MOTIONS AND NOTICE
OF HEARING .......................................................................... 18
RULE 3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL,
WHEN PERMITTED, OR E-MAIL ........................................ 18
RULE 3.080. NONVERIFICATION OF PLEADINGS ................................ 18
RULE 3.090. PLEADING CAPTIONS .......................................................... 19
RULE 3.111. PROVIDING COUNSEL TO INDIGENTS ............................ 19
RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN
CAPITAL CASES .................................................................... 26
RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN
FELONY CASES ..................................................................... 33
RULE 3.115. DUTIES OF STATE ATTORNEY; CRIMINAL INTAKE .... 34
III. PRELIMINARY PROCEEDINGS .............................................................. 34
RULE 3.120. COMMITTING JUDGE ........................................................... 34
RULE 3.121. ARREST WARRANT .............................................................. 35
RULE 3.125. NOTICE TO APPEAR ............................................................. 36
RULE 3.130. FIRST APPEARANCE ............................................................ 45
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RULE 3.131. PRETRIAL RELEASE ............................................................. 47
RULE 3.132. PRETRIAL DETENTION........................................................ 55
RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS
AND ADVERSARY PRELIMINARY HEARINGS .............. 57
RULE 3.134. TIME FOR FILING FORMAL CHARGES ............................ 62
RULE 3.140. INDICTMENTS; INFORMATIONS ....................................... 63
RULE 3.150. JOINDER OF OFFENSES AND DEFENDANTS .................. 75
RULE 3.151. CONSOLIDATION OF RELATED OFFENSES.................... 78
RULE 3.152. SEVERANCE OF OFFENSES AND DEFENDANTS ........... 79
RULE 3.153. TIMELINESS OF DEFENDANT’S MOTION; WAIVER ..... 81
IV. ARRAIGNMENT AND PLEAS ................................................................. 82
RULE 3.160. ARRAIGNMENT ..................................................................... 82
RULE 3.170. PLEAS ...................................................................................... 85
RULE 3.171. PLEA DISCUSSIONS AND AGREEMENTS ........................ 89
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE
PLEA ........................................................................................ 92
RULE 3.180. PRESENCE OF DEFENDANT ............................................... 97
RULE 3.181. NOTICE TO SEEK DEATH PENALTY ................................ 99
V. PRETRIAL MOTIONS AND DEFENSES ................................................ 100
RULE 3.190. PRETRIAL MOTIONS .......................................................... 100
RULE 3.191. SPEEDY TRIAL..................................................................... 107
RULE 3.192. MOTIONS FOR REHEARING ............................................. 117
RULE 3.200. NOTICE OF ALIBI ................................................................ 117
RULE 3.201. BATTERED-SPOUSE SYNDROME DEFENSE ................. 119
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION
DURING PENALTY PHASE OF CAPITAL TRIAL;
NOTICE AND EXAMINATION BY STATE EXPERT ...... 120
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RULE 3.203. DEFENDANT’S INTELLECTUAL DISABILITY AS A
BAR TO IMPOSITION OF THE DEATH PENALTY ......... 121
RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE FOR
RAISING THE ISSUE ........................................................... 124
RULE 3.211. COMPETENCE TO PROCEED: SCOPE OF
EXAMINATION AND REPORT .......................................... 130
RULE 3.212. COMPETENCE TO PROCEED: HEARING AND
DISPOSITION ........................................................................ 135
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING: DISPOSITION ............................................ 142
RULE 3.214. INCOMPETENCY TO PROCEED TO SENTENCING:
DISPOSITION ........................................................................ 145
RULE 3.215. EFFECT OF ADJUDICATION OF INCOMPETENCY
TO PROCEED: PSYCHOTROPIC MEDICATION ............. 145
RULE 3.216. INSANITY AT TIME OF OFFENSE OR PROBATION
OR COMMUNITY CONTROL VIOLATION: NOTICE
AND APPOINTMENT OF EXPERTS .................................. 147
RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF
INSANITY: DISPOSITION OF DEFENDANT ................... 151
RULE 3.218. COMMITMENT OF A DEFENDANT FOUND
NOT GUILTY BY REASON OF INSANITY ...................... 152
RULE 3.219. CONDITIONAL RELEASE .................................................. 153
VI. DISCOVERY ............................................................................................. 155
RULE 3.220. DISCOVERY.......................................................................... 155
VII. SUBSTITUTION OF JUDGE.................................................................. 179
RULE 3.231. SUBSTITUTION OF JUDGE ................................................ 179
VIII. CHANGE OF VENUE ........................................................................... 180
RULE 3.240. CHANGE OF VENUE ........................................................... 180
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IX. THE TRIAL ............................................................................................... 182
RULE 3.250. ACCUSED AS WITNESS ..................................................... 182
RULE 3.251. RIGHT TO TRIAL BY JURY ............................................... 182
RULE 3.260. WAIVER OF JURY TRIAL .................................................. 183
RULE 3.270. NUMBER OF JURORS ......................................................... 183
RULE 3.280. ALTERNATE JURORS ......................................................... 183
RULE 3.281. LIST OF PROSPECTIVE JURORS ...................................... 184
RULE 3.290. CHALLENGE TO PANEL .................................................... 185
RULE 3.300. VOIR DIRE EXAMINATION, OATH, AND
EXCUSING OF MEMBER .................................................... 185
RULE 3.310. TIME FOR CHALLENGE ..................................................... 186
RULE 3.315. EXERCISE OF CHALLENGES ............................................ 187
RULE 3.320. MANNER OF CHALLENGE ................................................ 187
RULE 3.330. DETERMINATION OF CHALLENGE FOR CAUSE ......... 187
RULE 3.340. EFFECT OF SUSTAINING CHALLENGE .......................... 188
RULE 3.350. PEREMPTORY CHALLENGES ........................................... 188
RULE 3.360. OATH OF TRIAL JURORS .................................................. 190
RULE 3.361. WITNESS ATTENDANCE AND SUBPOENAS ................. 190
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS .................................... 191
RULE 3.370. REGULATION AND SEPARATION OF JURORS ............. 191
RULE 3.371. JUROR QUESTIONS OF WITNESSES ............................... 192
RULE 3.372. JUROR NOTEBOOKS .......................................................... 193
RULE 3.380. MOTION FOR JUDGMENT OF ACQUITTAL ................... 193
RULE 3.381. FINAL ARGUMENTS ........................................................... 194
RULE 3.390. JURY INSTRUCTIONS ........................................................ 194
RULE 3.391. SELECTION OF FOREPERSON OF JURY ......................... 195
RULE 3.400. MATERIALS TO THE JURY ROOM .................................. 196
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RULE 3.410. JURY REQUEST TO REVIEW EVIDENCE OR
FOR ADDITIONAL INSTRUCTIONS ................................. 197
RULE 3.420. RECALL OF JURY FOR ADDITIONAL
INSTRUCTIONS ................................................................... 198
RULE 3.430. JURY NOT RECALLABLE TO HEAR ADDITIONAL
EVIDENCE ............................................................................ 198
XI. THE VERDICT ......................................................................................... 198
RULE 3.440. RENDITION OF VERDICT; RECEPTION AND
RECORDING ......................................................................... 198
RULE 3.450. POLLING THE JURY ........................................................... 199
RULE 3.451. JUDICIAL COMMENT ON VERDICT ................................ 199
RULE 3.470. PROCEEDINGS ON SEALED VERDICT ........................... 200
RULE 3.490. DETERMINATION OF DEGREE OF OFFENSE ................ 200
RULE 3.500. VERDICT OF GUILTY WHERE MORE THAN
ONE COUNT ......................................................................... 201
RULE 3.505. INCONSISTENT VERDICTS ............................................... 201
RULE 3.510. DETERMINATION OF ATTEMPTS AND
LESSER INCLUDED OFFENSES ........................................ 201
RULE 3.520. VERDICT IN CASE OF JOINT DEFENDANTS ................. 202
RULE 3.530. RECONSIDERATION OF AMBIGUOUS OR
DEFECTIVE VERDICT ........................................................ 202
RULE 3.540. WHEN VERDICT MAY BE RENDERED ........................... 203
RULE 3.550. DISPOSITION OF DEFENDANT ........................................ 203
RULE 3.560. DISCHARGE OF JURORS ................................................... 203
RULE 3.570. IRREGULARITY IN RENDITION, RECEPTION,
AND RECORDING OF VERDICT ....................................... 204
RULE 3.575. MOTION TO INTERVIEW JUROR ..................................... 204
XII. POST-TRIAL MOTIONS ........................................................................ 205
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RULE 3.580. COURT MAY GRANT NEW TRIAL ................................... 205
RULE 3.590. TIME FOR AND METHOD OF MAKING MOTIONS;
PROCEDURE; CUSTODY PENDING HEARING .............. 205
RULE 3.600. GROUNDS FOR NEW TRIAL ............................................. 208
RULE 3.610. MOTION FOR ARREST OF JUDGMENT; GROUNDS ..... 209
RULE 3.620. WHEN EVIDENCE SUSTAINS ONLY CONVICTION
OF LESSER OFFENSE ......................................................... 210
RULE 3.630. SENTENCE BEFORE OR AFTER MOTION FILED .......... 210
RULE 3.640. EFFECT OF GRANTING NEW TRIAL ............................... 211
XIII. JUDGMENT ........................................................................................... 211
RULE 3.650. JUDGMENT DEFINED ......................................................... 211
RULE 3.670. RENDITION OF JUDGMENT .............................................. 212
RULE 3.680. JUDGMENT ON INFORMAL VERDICT ............................ 213
RULE 3.690. JUDGMENT OF NOT GUILTY; DEFENDANT
DISCHARGED AND SURETIES EXONERATED ............. 213
RULE 3.691. POST-TRIAL RELEASE ....................................................... 213
RULE 3.692. PETITION TO SEAL OR EXPUNGE ................................... 215
XIV. SENTENCE ............................................................................................ 217
RULE 3.700. SENTENCE DEFINED; PRONOUNCEMENT
AND ENTRY; SENTENCING JUDGE ................................ 217
RULE 3.701. SENTENCING GUIDELINES .............................................. 218
RULE 3.702. SENTENCING GUIDELINES (1994) ................................... 227
RULE 3.703. SENTENCING GUIDELINES (1994 AS AMENDED) ....... 234
RULE 3.704. THE CRIMINAL PUNISHMENT CODE ............................. 245
RULE 3.710. PRESENTENCE REPORT .................................................... 256
RULE 3.711. PRESENTENCE REPORT: WHEN PREPARED ................ 257
RULE 3.712. PRESENTENCE REPORT: DISCLOSURE ......................... 257
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RULE 3.713. PRESENTENCE INVESTIGATION DISCLOSURE:
PARTIES ................................................................................ 258
RULE 3.720. SENTENCING HEARING .................................................... 259
RULE 3.721. RECORD OF THE PROCEEDINGS..................................... 260
RULE 3.730. ISSUANCE OF CAPIAS WHEN NECESSARY TO
BRING DEFENDANT BEFORE COURT ............................ 260
RULE 3.750. PROCEDURE WHEN PARDON IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING SENTENCE ............. 261
RULE 3.760. PROCEDURE WHEN NONIDENTITY IS ALLEGED
AS CAUSE FOR NOT PRONOUNCING SENTENCE ....... 261
RULE 3.770. PROCEDURE WHEN PREGNANCY IS ALLEGED
AS CAUSE FOR NOT PRONOUNCING
DEATH SENTENCE ............................................................. 262
RULE 3.780. SENTENCING HEARING FOR CAPITAL CASES ............ 263
RULE 3.781. SENTENCING HEARING TO CONSIDER THE
IMPOSITION OF A LIFE SENTENCE FOR
JUVENILE OFFENDERS...................................................... 263
RULE 3.790. PROBATION AND COMMUNITY CONTROL.................. 264
RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION
OF SENTENCES .................................................................... 269
RULE 3.801. CORRECTION OF JAIL CREDIT ........................................ 274
RULE 3.802. REVIEW OF SENTENCES FOR JUVENILE
OFFENDERS.......................................................................... 276
XV. EXECUTION OF SENTENCE ............................................................... 279
RULE 3.810. COMMITMENT OF DEFENDANT;
DUTY OF SHERIFF .............................................................. 279
RULE 3.811. INSANITY AT TIME OF EXECUTION:
CAPITAL CASES .................................................................. 280
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RULE 3.812. HEARING ON INSANITY AT TIME OF EXECUTION:
CAPITAL CASES .................................................................. 281
RULE 3.820. HABEAS CORPUS ................................................................ 282
XVI. CRIMINAL CONTEMPT ...................................................................... 283
RULE 3.830. DIRECT CRIMINAL CONTEMPT ...................................... 283
RULE 3.840. INDIRECT CRIMINAL CONTEMPT .................................. 284
XVII. POSTCONVICTION RELIEF .............................................................. 289
RULE 3.850. MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE ........................................................ 289
RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE
HAS BEEN IMPOSED AND AFFIRMED ON DIRECT
APPEAL ................................................................................. 301
RULE 3.852. CAPITAL POSTCONVICTION PUBLIC RECORDS
PRODUCTION ....................................................................... 321
RULE 3.853. MOTION FOR POSTCONVICTION DNA TESTING ........ 331
XVIII. FORMS ................................................................................................ 334
RULE 3.984. APPLICATION FOR CRIMINAL INDIGENT STATUS .... 334
RULE 3.985. STANDARD JURY INSTRUCTIONS.................................. 339
RULE 3.9855. JUROR VOIR DIRE QUESTIONNAIRE ............................ 340
RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE ... 341
RULE 3.987. MOTION FOR POSTCONVICTION RELIEF ..................... 369
RULE 3.9875. MOTION FOR JAIL CREDIT ............................................. 384
RULE 3.988. SENTENCING GUIDELINES .............................................. 389
RULE 3.989. AFFIDAVIT, PETITION, AND ORDER TO
EXPUNGE OR SEAL FORMS ............................................. 390
RULE 3.990. SENTENCING GUIDELINES SCORESHEET .................... 409
RULE 3.991. SENTENCING GUIDELINES SCORESHEETS
(OCTOBER 1, 1995) .............................................................. 409
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RULE 3.992. CRIMINAL PUNISHMENT CODE SCORESHEET ........... 409
RULE 3.993. FORMS RELATED TO CAPITAL POSTCONVICTION
RECORDS PRODUCTION ................................................... 410
RULE 3.994. ORDER CERTIFYING NO INCARCERATION ................. 441
RULE 3.995. ORDER OF REVOCATION OF
PROBATION / COMMUNITY CONTROL ......................... 442
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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 430.
Amended 1.840(a)(4).
Effective 9-30-68:
211 So.2d 203.
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 691.
Deleted 1.860.
Effective 2-24-71:
245 So.2d 33.
Added 1.191.
Effective 8-19-71:
251 So.2d 537.
Amended 1.191(i)(2).
Effective 12-13-71:
253 So.2d 421.
Renumbered rules 1.XXX to 3.XXX; added 3.025.
Effective 2-1-73:
272 So.2d 65.
Four-year-cycle revision.
Effective 2-1-73:
272 So.2d 513.
Amended 3.140, 3.170.
Effective 5-11-73:
281 So.2d 204.
Added 3.125.
Effective 1-16-74:
287 So.2d 678.
Amended 3.460.
Effective 3-1-74:
289 So.2d 3.
Amended 3.131(b).
Effective 7-18-74:
297 So.2d 301.
Amended 3.125(j).
Effective 3-31-75:
309 So.2d 544.
Amended 3.040, 3.131, 3.140(g).
Effective 7-11-75:
315 So.2d 172.
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 434.
Amended 3.125(m).
Effective 1-1-78:
353 So.2d 552.
Amended 3.850; added 3.987.
Effective 5-1-79:
370 So.2d 764.
Deleted 3.110.
Effective 7-1-79:
372 So.2d 449.
Amended 3.080; deleted 3.025, 3.090, 3.100.
Effective 10-9-79:
375 So.2d 855.
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 844.
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 610.
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 979.
Added 3.490, 3.510.
Effective 11-1-81:
408 So.2d 207.
Amended 3.986.
Effective 10-1-83:
436 So.2d 60.
Amended 3.130, 3.131; added 3.132; renumbered 3.122 to 3.133.
Effective 10-1-83:
439 So.2d 848.
Added 3.701, 3.988.
Effective 7-1-84:
451 So.2d 824.
Amended 3.701, 3.988.
Effective 1-1-85:
460 So.2d 907.
Amended 3.850.
Effective 1-1-85:
462 So.2d 386.
Four-year-cycle revision. Amended 3.130, 3.160, 3.191, 3.390,
3.692, 3.989.
Effective 7-1-85:
468 So.2d 220.
Amended 3.701, 3.988.
Effective 12-19-85:
481 So.2d 480.
Amended 3.850.
Effective 10-1-86:
482 So.2d 311.
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 643.
Added 3.811.
Effective 11-26-86:
498 So.2d 875.
Amended 3.220(d).
Effective 4-1-87:
503 So.2d 320.
Added 3.851.
Effective 7-1-87:
509 So.2d 1088.
Amended 3.701, 3.988.
Effective 12-31-87:
518 So.2d 256.
Amended 3.010, 3.811; added 3.812.
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Effective Date
Citation
Description
Effective 7-1-88:
522 So.2d 374.
Amended 3.701, 3.988.
Effective 1-1-89:
536 So.2d 992.
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 198.
Amended 3.710, 3.988.
Effective 7-1-89:
550 So.2d 1097.
Amended 3.220.
Effective 9-6-90,
and 1-1-91:
566 So.2d 770.
Amended 3.701, 3.988.
Effective 4-1-91:
573 So.2d 826.
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 271.
Amended 3.701, 3.988.
Effective 12-15-91:
591 So.2d 173.
Amended 3.130(a), 3.131(j).
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 227.
Four-year-cycle revisions. Numerous changes.
Effective 1-1-93:
609 So.2d 465.
Deleted 3.230.
Effective 2-11-93:
613 So.2d 1307.
Amended 3.701(c), 3.988.
Effective 7-1-93:
615 So.2d 692.
Amended 3.191(b).
Effective 10-21-93:
630 So.2d 172.
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 198.
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 552.
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 15.
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 83.
Adopted 3.202.
Effective 5-2-96:
654 So.2d 915.
Amended 3.202.
Effective 7-1-96:
675 So.2d 1374.
Amended 3.800.
Effective 10-1-96:
681 So.2d 666.
Amended 3.220.
Effective 10-1-96:
685 So.2d 1213
Amended 3.703.
Effective 10-31-96:
683 So.2d 475.
Adopted 3.852.
Effective 11-15-96:
684 So.2d 173.
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 4-2-98:
710 So.2d 961.
Amended 3.220(h)(1).
Effective 4-2-98:
711 So.2d 27.
Amended 3.702(d)(9)B(10), 3991.
Effective 7-16-98:
719 So.2d 873.
Amended 3.111(d)(2)B(3).
Effective 10-1-98:
721 So.2d 265.
Adopted 3.704, 3.992.
Effective 10-1-98:
723 So.2d 163.
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 319.
Amended 3.380(b).
Effective 2-18-99:
745 So.2d 319.
Amended 3.220(a).
Effective 5-27-99:
750 So.2d 592.
Amended 3.850.
Effective 5-27-99:
747 So.2d 931.
Amended 3.850(b).
Effective 7-1-99:
754 So.2d 640.
Amended 3.852, 3.993.
Effective 11-12-99:
760 So.2d 67.
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 997.
Amended 3.704(d).
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Effective Date
Citation
Description
Effective 1-1-00:
760 So.2d 67.
Amended 3.670.
Effective 1-14-00:
763 So.2d 273.
Readopted 3.850, 3.851, 3.852.
Effective 2-10-00:
763 So.2d 274
Amended 3.220(a).
Effective 7-1-00:
759 So.2d 610.
Adopted 3.112.
Effective 10-19-00:
779 So.2d 1290.
Amended 3.850(a).
Effective 11-22-00:
789 So.2d 262.
Amended 3.850(g).
Effective 1-1-01:
794 So.2d 457.
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 826.
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 298.
Amended 3.851, 3.852.
Effective 10-18-01:
807 So.2d 633.
Adopted 3.853.
Effective 7-1-02:
820 So.2d 185.
Amended 3.112.
Effective 9-19-02:
828 So.2d 999.
Amended 3.851.
Effective 1-1-03:
837 So.2d 924.
Two-year-cycle revisions. Adopted 3.994; amended 3.111, 3.170,
3.190, 3.361.
Effective 2-27-03:
842 So.2d 110.
Committee note to 3.704(d)(14)(B).
Effective 9-30-03:
857 So.2d 190.
Suspended 3.853 deadline until further order of court.
Effective 9-15-04:
884 So.2d 934.
Amended 3.853.
Effective 10-1-04:
875 So.2d 563.
Adopted 3.203.
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 197.
Amended 3.150, 3.191, 3.710, 3.800, 3.986; adopted 3.575, 3.995.
Effective 4-7-05:
900 So.2d 528.
Amended 3.111, 3.220, 3.670; adopted 3.984.
Effective 7-1-05:
910 So.2d 194.
Amended 3.984.
Effective 9-1-05:
911 So.2d 763.
Amended 3.172(c).
Effective 9-29-05:
935 So.2d 1218.
Amended 3.853(d).
Effective 9-21-06:
938 So.2d 977.
Amended 3.853.
Effective 9-21-06:
938 So.2d 978.
Amended 3.170, 3.172.
Effective 1-1-07
942 So.2d 407.
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 196.
Amended 3.800.
Effective 3-29-07:
953 So.2d 513.
Amended 3.170, 3.172.
Effective 4-1-07:
948 So.2d 731.
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 250.
Amended 3.131, 3.170.
Effective 7-5-07:
959 So.2d 1187.
Amended 3.790.
Effective 10-4-07:
967 So.2d 178.
Amended 3.390, 3.400; adopted 3.371, 3.372, 3.9855.
Effective 1-10-08:
972 So.2d 862.
Amended 3.992.
Effective 9-25-08:
992 So.2d 239.
Amended 3.992(a).
Effective 10-8-08:
993 So.2d 501.
Amended 3.112.
Effective 11-20-08:
998 So.2d 1128.
Amended 3.704, 3.986.
Effective 12-30-08:
1 So.3d 163.
Amended 3.851.
Effective 2-26-09:
3 So.3d 1175.
Amended 3.112.
Effective 3-19-09:
5 So.3d 662.
Amended 3.984.
Effective 5-28-09:
11 So.3d 341.
Amended 3.130.
Effective 7-16-09:
19 So.3d 274.
Amended 3.992.
Effective 8-28-09:
17 So.2d 272.
Amended 3.111.
Effective 9-10-09:
22 So.3d 1.
Amended 3.704 and 3.986.
Effective 10-1-09:
20 So.3d 376.
Amended 3.172, 3.985.
Effective 1-1-10:
19 So.3d 306.
Amended 3.132.
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Effective Date
Citation
Description
Effective 1-1-10:
26 So.3d 534.
Three-year-cycle revision. Adopted rule 3.192. Amended rules
3.131, 3.172, 3.190, 3.191, 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 688.
Amended 3.853.
Effective 9-23-10:
48 So.3d 17.
Amended 3.111, 3.704, 3.720, form 3.986.
Effective 6-9-11:
66 So.3d 851.
Amended 3.191.
Effective 7-1-11:
72 So.3d 735.
Amended 3.850 and 3.851.
Effective 9-28-11:
73 So.3d 202.
Amended 3.992(a).
Effective 10-1-11:
80 So.3d 317.
Amended 3.140, 3.211, 3.212, 3.218 and 3.219.
Effective 12-8-11:
76 So.3d 913.
Amended 3.800(c).
Effective 3-8-11:
84 So.3d 254.
Amended 3.130.
Effective 9-1-12:
102 So.3d 505.
Amended 3.030, 3.070, 3.852.
Effective 10-1-12:
95 So.3d 96.
Amended 3.040.
Effective 10-11-12:
101 So.3d 1263.
Amended 3.992.
Effective 10-1-13:
102 So.3d 451.
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 304.
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 207.
Amended 3.220(b).
Effective 7-1-13:
132 So.3d 734.
Amended 3.800, 3.850, and 3.851. Adopted 3.801.
Effective 12-12-13:
132 So.3d 123.
Amended 3.121, 3.203, 3.211, 3.212, 3.213, 3.851, and 3.852.
Effective 1-1-14:
132 So.3d 123.
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 292.
Adopted 3.113.
Effective 7-1-14:
140 So.3d 507.
Amended 3.852.
Effective 7-1-14:
140 So.3d 538.
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 476.
Amended 3.852.
Effective 6-11-15:
167 So.3d 395.
Amended 3.192, 3.800, 3.850.
Effective 10-8-15:
176 So.3d 980.
Amended 3.220 and 3.989. Adopted 3.781 and 3.802.
Effective 1-1-16:
176 So.3d 980.
Amended 3.220.
Effective 1-1-16:
177 So.3d 523.
Amended 3.800, 3.984, 3.987, 3.993 Adopted 3.9875.
Effective 1-1-16:
177 So.3d 567.
Amended 3.112, 3.121, 3.172, 3.192, 3.212, 3.220, 3.410, 3.590,
3.984, 3.986.
Effective 9-15-16:
200 So.3d 758.
Adopted 3.181, amended 3.202, 3.220, 3.780
Effective 9-29-16:
200 So.3d 1221.
Amended 3.781, 3.802,
NOTE TO USERS: Rules in this pamphlet are current through 200 So. 3d 1221. Subsequent
amendments, if any, can be found at www.floridasupremecourt.org/decisions/rules.shtml. The
Florida Bar also updates the rules on its website at www.FloridaBar.org (on the home page click
“Rules Updates”).
January 1, 2017 Florida Rules of Criminal Procedure 14
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I. SCOPE, PURPOSE, AND CONSTRUCTION
RULE 3.010. 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 vehicular and pedestrian traffic offenses insofar
as these rules are made applicable by the Florida Rules of Practice and Procedure
for Traffic Courts. 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.
* * *
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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. 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. 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.
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II. GENERAL PROVISIONS
RULE 3.030. SERVICE OF PLEADINGS AND PAPERS
(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 shall be served on each party in conformity with Florida
Rule of Judicial Administration 2.516; however, nothing herein shall be construed
to require that a plea of not guilty shall be in writing.
(b) Filing. All documents that are “court records” as defined in the
Florida Rules of Judicial Administration must be filed with the clerk in accordance
with Florida Rules of Judicial Administration 2.520 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 shall be filed and
deposited with the clerk immediately thereafter. The clerk shall maintain deposited
original paper documents in accordance with Florida Rule of 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. COMPUTATION OF TIME
Computation of time shall be governed by Florida Rule of Judicial
Administration 2.514(a), except for the periods of time of less than 7 days
contained in rules 3.130, 3.132(a) and (c), and 3.133(a).
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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. 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.
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RULE 3.060. 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 3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL,
WHEN PERMITTED, OR E-MAIL
Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
document on the party and the notice or document is served on the party by mail,
when permitted, or e-mail, 3 days shall be added to the prescribed period.
Committee Notes
1968 Adoption. This is the same as rule 1.6(e), Florida Rules of Civil Procedure, except
for the omission of subdivision (c) of the civil rules, which appears to be inapplicable to criminal
cases.
1972 Amendment. Same as prior rule.
RULE 3.080. 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.
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1972 Amendment. Same as prior rule.
RULE 3.090. 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. 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.
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(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:
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(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.
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(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.
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(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).
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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
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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.2d 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.
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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. 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 first-degree murder case
in which the State has not formally waived the death penalty 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 where 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.
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(d) List of Qualified Conflict Counsel.
(1) Every circuit shall 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 shall maintain a list of qualified
counsel pursuant to section 27.40(3)(a), Florida Statutes.
(e) Appointment of Counsel. A court must appoint lead counsel and,
upon 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 shall have the right to select co-counsel from
attorneys on the lead counsel or co-counsel list. Both attorneys shall be reasonably
compensated for the trial and sentencing phase. Except under extraordinary
circumstances, only one 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 shall 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 five
years of litigation experience in the field of criminal law; and
(3) have prior experience as lead counsel in no fewer than nine
state or federal jury trials of serious and complex cases which were tried to
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completion, as well as prior experience as lead defense counsel or co-counsel in at
least two state or federal cases tried to completion in which the death penalty was
sought. In addition, of the nine jury trials which were tried to completion, the
attorney should have been lead counsel in at least three cases in which the charge
was murder; or alternatively, of the nine jury trials, at least one was a murder trial
and an additional five 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 two years a continuing legal
education program of at least twelve 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 paragraph (f) of these standards or
meet the following requirements:
(A) are experienced and active trial practitioners with at least
three years of litigation experience in the field of criminal law; and
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(B) have prior experience as lead counsel or cocounsel in no
fewer than three state or federal jury trials of serious and complex cases which
were tried to completion, at least two of which were trials in which the charge was
murder; or alternatively, of the three jury trials, at least one 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 two years a continuing legal
education program of at least twelve 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 five years of experience in the field of criminal law; and
(3) have prior experience in the appeal of at least one case where a
sentence of death was imposed, as well as prior experience as lead counsel in the
appeal of no fewer than three felony convictions in federal or state court, at least
one of which was an appeal of a murder conviction; or alternatively, have prior
experience as lead counsel in the appeal of no fewer than six felony convictions in
federal or state court, at least two 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
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(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 two years a continuing legal
education program of at least twelve 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 shall immediately file a notice of appearance
certifying that he or she 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 shall 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 shall 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
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Chief Judge or his or her 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.
(Note that subdivision (k) applies to attorneys appointed or retained after
April 1, 2015.)
(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 shall 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 shall 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 shall 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.
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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.
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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. 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.
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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. 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.
III. PRELIMINARY PROCEEDINGS
RULE 3.120. 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
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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. 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.
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(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. 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;
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(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
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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.
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(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
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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.
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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
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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
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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):
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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
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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. FIRST APPEARANCE
(a) Prompt First Appearance. Except when previously released in a
lawful manner, every arrested person shall be taken before a judicial officer, either
in person or by electronic audiovisual device 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 shall 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 shall
designate 1 or more judicial officers 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 shall
attend the first appearance proceeding either in person or by other electronic
means. First appearance hearings shall be held with adequate notice to the public
defender and state attorney. An official record of the proceedings shall 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 shall follow the procedure
outlined in subdivision (c)(2).
(b) Advice to Defendant. At the defendant’s first appearance the judge
shall 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 shall also adequately advise the defendant that:
(1) the defendant is not required to say anything, and that anything
the defendant says may be used against him or her;
(2) if unrepresented, that the defendant has a right to counsel, and,
if financially unable to afford counsel, that counsel will be appointed; and
(3) the defendant has a right to communicate with counsel, family,
or friends, and if necessary, will be provided reasonable means to do so.
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(c) Counsel for Defendant.
(1) Appointed Counsel. If practicable, the judge should determine
prior to 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 shall 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 shall allow the defendant a reasonable time to send for
counsel and shall, if necessary, postpone the first appearance hearing for that
purpose. The judge shall also, on request of the defendant, require an officer to
communicate a message to such counsel as the defendant may name. The officer
shall, 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, shall be in writing and signed and dated by the defendant. This written
waiver of counsel shall, in addition, contain a statement that it is limited to first
appearance only and shall in no way be construed to be a waiver of counsel for
subsequent proceedings.
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(d) Pretrial Release. The judicial officer shall proceed to determine
conditions of release pursuant to rule 3.131. 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 judicial officer:
(1) May order the offender to be taken before the court that granted
the probation or community control if the offender admits the violation;
(2) If the offender does not admit the violation at first appearance
hearing, the judicial officer 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 judicial officer 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. 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
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victim of the provisions of this subsection 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
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(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 and/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,
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
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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 or a court of equal or inferior jurisdiction may modify or set a
condition of release, unless the judge:
(A) imposed the conditions of bail or set the amount of bond
required;
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(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 he or she may be prosecuted and
submit to the orders and process of the court and will not depart without leave.
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(f) Revocation of Bail. 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 he or she would be if he or she 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 shall determine
conditions of release, if any, subject to the limitations of (b) above.
(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.
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(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 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.
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(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.
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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. PRETRIAL DETENTION
(a) Motion Filed at First Appearance. A person arrested for an offense
for which detention may be ordered under section 907.041, Florida Statutes, shall
be taken before a judicial officer for a first appearance within 24 hours of arrest.
The state may file with the judicial officer at first appearance a motion seeking
pretrial detention, signed by the state attorney or an assistant, setting forth with
particularity the grounds and the essential facts on which pretrial detention is
sought and certifying that the state attorney has received testimony under oath
supporting the grounds and the essential facts alleged in the motion. If no such
motion is filed, the judicial officer may inquire whether the state intends to file a
motion for pretrial detention, and if so, grant the state no more than three days to
file a motion under this subdivision. Upon a showing by the state of probable cause
that the defendant committed the offense and exigent circumstances, the defendant
shall be detained in custody pending the filing of the motion. If, after inquiry, the
State indicates it does not intend to file a motion for pretrial detention, or fails to
establish exigent circumstances for holding defendant in custody pending the filing
of the motion, or files a motion that is facially insufficient, the judicial officer shall
proceed to determine the conditions of release pursuant to the provisions of rule
3.131(b). If the motion for pretrial detention is facially sufficient, the judicial
officer shall proceed to determine whether there is probable cause that the person
committed the offense. If probable cause is found, the person may be detained in
custody pending a final hearing on pretrial detention. If probable cause is
established after first appearance pursuant to the provisions of rule 3.133 and the
person has been released from custody, the person may be recommitted to custody
pending a final hearing on pretrial detention.
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(b) Motion Filed after First Appearance. A motion for pretrial
detention may be filed at any time prior to trial. The motion shall be made to the
court with trial jurisdiction. On receipt of a facially sufficient motion and a
determination of probable cause, unless otherwise previously established, that an
offense eligible for pretrial detention has been committed, the following shall
occur:
(1) In the event of exigent circumstances, the court shall issue a
warrant for the arrest of the named person, if the person has been released from
custody. The person may be detained in custody pending a final hearing on pretrial
detention.
(2) In the absence of exigent circumstances, the court shall order a
hearing on the motion as provided in (c) below.
(c) Final Order.
(1) Hearing Required. A final order of pretrial detention shall be
entered only after a hearing in the court of trial jurisdiction. The hearing shall be
held within 5 days of the filing of the motion or the date of taking the person in
custody pursuant to a motion for pretrial detention, whichever is later. The state
attorney has the burden of showing beyond a reasonable doubt the need for pretrial
detention pursuant to the criteria in section 907.041, Florida Statutes. The
defendant may request a continuance. The state shall be entitled to 1 continuance
for good cause. No continuance shall exceed 5 days unless there are extenuating
circumstances. The defendant may be detained pending the hearing, but in no case
shall the defendant be detained in excess of 10 days, unless the delay is sought by
the defendant. The person sought to be detained is entitled to representation by
counsel, to present witnesses and evidence, and to cross-examine witnesses. The
court may admit relevant evidence and testimony under oath without complying
with the rules of evidence, but evidence secured in violation of the United States
Constitution or the Constitution of the State of Florida shall not be admissible. A
final order of pretrial detention shall not be based exclusively on hearsay evidence.
No testimony by the defendant shall be admissible to prove the guilt of the
defendant at any other judicial proceeding, but may be admitted in an action for
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perjury based on the defendant’s statements made at the pretrial detention hearing
or for impeachment.
(2) Findings and Conclusions to Be Recorded. The court’s
pretrial detention order shall be based solely on evidence produced at the hearing
and shall contain findings of fact and conclusions of law to support it. The order
shall be made either in writing or orally on the record. The court shall render its
findings within 24 hours of the pretrial detention hearing.
(3) Dissolution of Order. The defendant shall be entitled to
dissolution of the pretrial detention order whenever the court finds that a
subsequent event has eliminated the basis for detention.
(4) Further Proceedings on Order. If any trial court enters a final
order of pretrial detention, the defendant may obtain review by motion to the
appropriate appellate court. If motion for review is taken to the supreme court or
the district court of appeal, notice and a copy of the motion shall be served on the
attorney general and the state attorney; if review is taken to the circuit court,
service shall be on the state attorney.
RULE 3.133. 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
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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
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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.
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(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
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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).
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(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. TIME FOR FILING FORMAL CHARGES
The state shall 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 upon them. If the defendants
remain uncharged, the court on the 30th day and with notice to the state shall:
(1) 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
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(2) 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.
In no event shall any defendants remain in custody beyond 40 days unless
they have been formally charged with a crime.
RULE 3.140. 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
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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
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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.
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(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.
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(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
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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
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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
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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
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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.
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(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.
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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
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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.
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(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. 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.
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(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.
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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.
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RULE 3.151. 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
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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. 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
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(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.
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(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. 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
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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. ARRAIGNMENT
(a) Nature of Arraignment. The arraignment shall be conducted in open
court or by audiovisual device in the discretion of the court and shall 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 shall 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
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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:
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“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
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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. 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.
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(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.
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(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
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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.
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(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. 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
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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.
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(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.
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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. 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.
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(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
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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
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determine whether the present or prior offenses were sexually motivated, as this
admonition shall be given to all defendants in all cases.
(10) Driver’s License Suspension or Revocation. If the defendant
pleads guilty or nolo contendre and the offense to which the defendant is pleading
is one for which automatic, mandatory driver’s 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’s 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.
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(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).
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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. PRESENCE OF DEFENDANT
(a) Presence of Defendant. In all prosecutions for crime the defendant
shall be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty shall be
made in writing under the provisions of rule 3.170(a);
(3) at any pretrial conference, unless waived by the defendant in
writing;
(4) at the beginning of the trial during the examination,
challenging, impanelling, 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.
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(b) Presence; Definition. A defendant is present for purposes of this rule
if the defendant is physically in attendance for the courtroom proceeding, and has a
meaningful opportunity to be heard through counsel on the issues being discussed.
(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.
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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. 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).
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V. PRETRIAL MOTIONS AND DEFENSES
RULE 3.190. 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 hereinabove provided
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.
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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 therefrom,
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.
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(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
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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.
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(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.
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(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.
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(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.
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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. 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 of arrest if the
crime charged is a misdemeanor, or within 175 days of arrest 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 (p). The time
periods established by this subdivision shall commence when the person is taken
into custody 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.
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(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 45 days from the date of the
calendar call.
(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 50 days of
the filing of the demand, the defendant shall have the right to the appropriate
remedy as set forth in subdivision (p).
(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) Custody. For purposes of this rule, a person is taken into custody (1)
when the person is arrested as a result of the conduct or criminal episode that gave
rise to the crime charged, or (2) when the person is served with a notice to appear
in lieu of physical arrest.
(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 by indictment or
information issued or filed under the laws of this state, 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
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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:
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(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 Judicial Administration 2.205(a)(2)(B)(iv), 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.
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If the court finds that discharge is not appropriate for reasons under subdivisions
(j)(2), (3), or (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
shall 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:
(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;
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(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; and
(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 (p).
(n) Discharge from Crime; Effect. Discharge 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
) Nolle Prosequi; Effect. The intent and effect of this rule shall not be
avoided by the state by entering a nolle prosequi to a crime charged and by
prosecuting a new crime grounded on the same conduct or criminal episode or
otherwise by prosecuting new and different charges based on the same conduct or
criminal episode whether or not the pending charge is suspended, continued, or is
the subject of entry of a nolle prosequi.
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(p) 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 10 days. A defendant not brought
to trial within the 10-day period through no fault of the defendant, on motion of the
defendant or the court, shall be forever discharged from the crime.
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.
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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.
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(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.
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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.
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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.”
RULE 3.192. 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. 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
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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).
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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. 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.
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RULE 3.202. 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 shall 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 shall give written notice of intent to present such
testimony.
(c) Time for Filing Notice; Contents. The defendant shall give notice of
intent to present expert testimony of mental mitigation not less than 20 days before
trial. The notice shall 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 shall order that, within 48 hours after the defendant is
convicted of capital murder, 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 shall be limited to those mitigating circumstances
the defendant expects to establish through expert testimony.
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(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. DEFENDANT’S INTELLECTUAL DISABILITY AS A
BAR TO IMPOSITION OF THE DEATH PENALTY
(a) Scope. This rule applies in all first-degree murder cases in which 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 two or more standard deviations from the mean score on a standardized
intelligence test authorized by the Department of Children and Family Services 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.
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(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 shall file a written motion to establish intellectual disability as a bar to
execution with the court.
(2) The motion shall state that the defendant is intellectually
disabled and, if the defendant has been tested, evaluated, or examined by one or
more experts, the names and addresses of the experts. Copies of reports containing
the opinions of any experts named in the motion shall be attached to the motion.
The court shall appoint an expert chosen by the state attorney if the state attorney
so requests. The expert shall promptly test, evaluate, or examine the defendant and
shall 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
one or more experts, the motion shall state that fact and the court shall appoint two
experts who shall promptly test, evaluate, or examine the defendant and shall
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.
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(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 shall be filed not later than 90 days prior to trial, or at such time
as is ordered by the court.
(e) Hearing on Motion to Determine Intellectual Disability. The
circuit court shall conduct an evidentiary hearing on the motion for a determination
of intellectual disability. At the hearing, the court shall consider the findings of the
experts and all other evidence on the issue of whether the defendant is
intellectually disabled. The court shall 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 shall 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 shall 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 shall 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).
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(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 shall not stay further proceedings without a separate order staying
execution.
RULE 3.210. 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 shall not be
proceeded against while incompetent.
(1) A “material stage of a criminal proceeding” shall include 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, shall refer to
mental competence or incompetence to proceed at a material stage of a criminal
proceeding.
(2) The incompetence of the defendant shall 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 Examination. If, at any material stage of a criminal
proceeding, the court of its own motion, or on motion of counsel for the defendant
or for the state, has reasonable ground to believe that the defendant is not mentally
competent to proceed, the court shall immediately enter its order setting a time for
a hearing to determine the defendant’s mental condition, which shall be held no
later than 20 days after the date of the filing of the motion, and may order the
defendant to be examined by no more than 3 experts, as needed, prior to the date of
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the hearing. Attorneys for the state and the defendant may be present at any
examination ordered by the court.
(1) A written motion for the examination made by counsel for the
defendant shall contain a certificate of counsel that the motion is made in good
faith and on reasonable grounds to believe that the defendant is 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 written motion for the examination made by counsel for the
state shall contain a certificate of counsel that the motion is made in good faith and
on reasonable grounds to believe the defendant is 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 shall not otherwise
affect the defendant’s right to release.
(4) The order appointing experts shall:
(A) identify the purpose or purposes of the evaluation,
including the nature of the material proceeding, 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.
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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
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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
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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.
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(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
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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. COMPETENCE TO PROCEED: SCOPE OF
EXAMINATION AND REPORT
(a) Examination by Experts. Upon appointment by the court, the experts
shall 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 shall evaluate the defendant as ordered.
(1) The experts shall 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 shall consider and include in their report:
(A) the defendant’s capacity to:
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(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 shall report on any recommended treatment
for the defendant to attain competence to proceed. In considering the issues
relating to treatment, the examining experts shall report on:
(1) the mental illness or intellectual disability causing the
incompetence;
(2) 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;
(3) the availability of acceptable treatment. If treatment is available
in the community, the expert shall so state in the report; and
(4) the likelihood of the defendant attaining competence under the
treatment recommended, an assessment of the probable duration of the treatment
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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 shall:
(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; and
(4) identify the sources of information used by the expert and
present the factual basis for the expert’s clinical findings and opinions.
The procedure for determinations of the confidential status of reports is governed
by Rule of 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 pursuant to this rule, shall 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, shall be governed by applicable rules
of evidence and rules of criminal procedure. If a part of the report is used by the
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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.
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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
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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. 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
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either party. The experts appointed by the court shall be 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 shall first consider the issue of the
defendant’s competence to proceed. If the court finds the defendant competent to
proceed, the court shall enter its order so finding and shall 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 shall 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
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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; and
(D) no appropriate treatment alternative less restrictive than
that involving commitment is available.
(4) If the court commits the defendant, the order of commitment
shall 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
pursuant to 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) The treatment facility shall admit the defendant 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 that shall address the issues and consider the factors set forth in
rule 3.211, with copies to all parties. If, at any time during the 6–month period or
during any period of extended commitment that may be ordered pursuant to 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
shall notify the court by such a report, with copies to all parties.
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(A) If, during the 6–month period of commitment and
treatment or during any period of extended commitment that may be ordered
pursuant to this rule, counsel for the defendant shall 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 shall 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 shall contain a recital of the specific observations of and conversations with
the defendant that have formed the basis for the motion.
(B) If, upon 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 shall order the administrator of the facility to report to the
court on such issues, with copies to all parties, and shall order a hearing to be held
on those issues.
(6) The court shall hold a hearing within 30 days of the receipt of
any such report from the administrator of the facility on the issues raised thereby.
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 shall order continued commitment or treatment
for a period not to exceed 1 year. When the defendant is retained by the facility,
the same procedure shall be repeated prior to the expiration of each additional 1–
year period of extended commitment.
(7) 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.
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(8) 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 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 shall 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 Judicial Administration 2.420.
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
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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.
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(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.
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(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. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING: DISPOSITION
(a) Dismissal without Prejudice during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a
person is incompetent to stand trial or proceed with a probation or community
control violation hearing when charged with a felony, or 1 year when charged with
a misdemeanor, the court, after hearing, determines that the defendant remains
incompetent to stand trial or proceed with a probation or community control
violation hearing, that there is no substantial probability that the defendant will
become mentally competent to stand trial or proceed with a probation or
community control violation hearing in the foreseeable future, and that the
defendant does not meet the criteria for commitment, it shall dismiss the charges
against the defendant without prejudice to the state to refile the charges should the
defendant be declared competent to proceed in the future.
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(2) If the incompetency to stand trial or to proceed is due to
intellectual disability or autism, the court shall dismiss the charges within a
reasonable time after such determination, not to exceed 2 years for felony charges
and 1 year for misdemeanor charges, unless the court specifies in its order the
reasons for believing that the defendant will become competent within the
foreseeable future and specifies the time within which the defendant is expected to
become competent. The dismissal shall be without prejudice to the state to refile
should the defendant be declared competent to proceed in the future.
(b) Commitment or Treatment during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a
person is incompetent to stand trial or proceed with a probation or community
control violation hearing when charged with a felony, or 1 year when charged with
a misdemeanor, the court, after hearing, determines that the defendant remains
incompetent to stand trial or proceed with a probation or community control
violation hearing, that there is no substantial probability that the defendant will
become mentally competent to stand trial or proceed with a probation or
community control violation hearing in the foreseeable future, and that the
defendant does meet the criteria for commitment, the court shall dismiss the
charges against the defendant and commit the defendant to the Department of
Children and Family Services for involuntary hospitalization or residential services
solely under the provisions of law or 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 the facility notify the state attorney of the committing
circuit no less than 30 days prior to the anticipated date of release of the defendant.
If charges are dismissed pursuant to this subdivision, the dismissal shall be without
prejudice to the state to refile the charges should the defendant be declared
competent to proceed in the future.
(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.
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(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.
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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. 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. 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.
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(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.
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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. 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
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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
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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.
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(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.
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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. 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 Family Services 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.
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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. COMMITMENT OF A DEFENDANT FOUND NOT
GUILTY BY REASON OF INSANITY
(a) Commitment; 6-Month Report. The Department of Children and
Family Services 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
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
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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. 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
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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 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 Family Services 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
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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. 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 shall bind 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, shall be 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 shall be deemed to have elected to participate in discovery.
(b) Prosecutor’s Discovery Obligation.
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(1) Within 15 days after service of the Notice of Discovery, the
prosecutor shall serve a written Discovery Exhibit which shall 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 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 shall
be clearly designated in the following categories:
(i) Category A. These witnesses shall 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 shall 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;
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(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
shall 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;
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(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’ 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.
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(4) As soon as practicable after the filing of the charging document
the prosecutor shall 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
shall be given by the prosecuting attorney to the defendant and his or her counsel.
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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 shall be made:
(A) Within 15 days after receipt by the defendant of the
Discovery Exhibit furnished by the prosecutor pursuant to subdivision (b)(1)(A) of
this rule, the defendant shall 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 shall apply.
(B) Within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant shall serve a written Discovery Exhibit which
shall 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 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 shall perform their
obligations under this rule in a manner mutually agreeable or as ordered by the
court.
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(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 shall 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 shall 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 shall 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 upon oral examination of any person
authorized by this rule. A party taking a deposition shall give reasonable written
notice to each other party and shall 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 shall state the time and the location
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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. After notice to the parties the court may, for good cause shown, extend
or shorten the time and may change the location of the deposition. Except as
provided herein, 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, shall be the same as that provided in the Florida Rules of Civil
Procedure and section 48.031, Florida Statutes. Any deposition taken pursuant to
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 shall 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 upon 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.
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(C) A witness listed by the prosecutor as a Category C
witness shall not be subject to deposition unless the court determines that the
witness should be listed in another category.
(D) No deposition shall 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’ 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 shall not be
applicable if following the furnishing of discovery by the defendant the state then
takes the statement of a listed defense witness pursuant to section 27.04, Florida
Statutes.
(2) Transcripts. No transcript of a deposition for which the state
may be obligated to expend funds shall be ordered by a party unless it is in
compliance with general law.
(3) Location of Deposition. Depositions of witnesses residing in
the county in which the trial is to take place shall be taken in the building in which
the trial shall be held, such other location as is agreed on by the parties, or a
location designated by the court. Depositions of witnesses residing outside the
county in which the trial is to take place shall 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) Depositions of Sensitive Witnesses. Depositions of children
under the age of 18 shall be videotaped unless otherwise ordered by the court. The
court may order the videotaping of a deposition or the taking of a deposition of a
witness with fragile emotional strength, or an intellectual disability as defined in
section 393.063, Florida Statutes, to be in the presence of the trial judge or a
special magistrate.
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(5) Depositions of Law Enforcement Officers. Subject to the
general provisions of subdivision (h)(1), law enforcement officers shall appear for
deposition, without subpoena, upon written notice of taking deposition delivered at
the address of the law enforcement agency or department, or an address designated
by the law enforcement agency or department, five days prior to the date of the
deposition. 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 pursuant to
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 shall 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 electronic or audio/visual means
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, shall be recorded and may be used for impeachment
at trial as a prior inconsistent statement pursuant to the Florida Evidence Code.
(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 shall advise
persons having relevant material or information (except the defendant) to refrain
from discussing the case with opposing counsel or showing opposing counsel any
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relevant material, nor shall 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 shall promptly disclose or produce the witnesses or material in the same
manner as required under these rules for initial discovery.
(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 shall 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
upon 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 (1) terminate the deposition, (2) limit the scope and manner of the
taking of the deposition, (3) limit the time of the deposition, (4) continue the
deposition to a later time, (5) order the deposition to be taken in open court, and, in
addition, may (6) impose any sanction authorized by this rule. If the order
terminates the deposition, it shall be resumed thereafter only upon the order of the
court in which the action is pending. Upon demand of any party or deponent, the
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taking of the deposition shall 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) Upon request, the court shall allow the defendant to make an ex
parte showing of good cause for taking the deposition of a Category B witness.
(3) A record shall 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 shall 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 pursuant to 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 pursuant thereto, shall
subject 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.
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(3) Every request for discovery or response or objection, including
a notice of deposition made by a party represented by an attorney, shall be signed
by at least 1 attorney of record in the attorney’s individual name, whose address
shall be stated. A party who is not represented by an attorney shall sign the request,
response, or objection and list his or her address. 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 shall 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 shall 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, shall 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.
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(1) The trial court may hold 1 or more pretrial conferences, with
trial counsel present, to consider such matters as will promote a fair and
expeditious trial. The defendant shall be present unless the defendant waives this in
writing.
(2) The court may set, and upon the request of any party shall 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
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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
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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:
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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
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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 therefor” 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.
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(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.
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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
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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).
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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).
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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
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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
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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.
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. 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
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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. 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.
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(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 enter on the minutes 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 one 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, and such new information shall be entitled in the county in which the
trial is had, but the allegations as to the place of commission of the crime shall
refer to the county in which the crime was actually committed.
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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. 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. 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.
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RULE 3.260. 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. 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. 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
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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. 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.
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RULE 3.290. 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. 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
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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. 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
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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. 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. 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. 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 on oath by either
party. The court may consider also any other evidence material to such challenge.
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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. 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. 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,
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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.
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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. 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. 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
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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. 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.
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(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. 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;
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(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. 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. 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
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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. 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. JURY INSTRUCTIONS
(a) Subject of Instructions. 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.
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(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. 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.
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1972 Amendment. Same as former rule 3.390.
RULE 3.400. 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].
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RULE 3.410. 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
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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. 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. 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. 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
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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. 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. 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.
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RULE 3.470. 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 next
convening of the court. When the court authorizes the rendition of a sealed verdict,
it shall admonish the jurors not to make any disclosure concerning it or to speak
with other persons concerning the cause, until their verdict shall have been
rendered in open court. The officer shall, forthwith, 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 the same proceedings shall be had as in the
receiving of other 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. 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.
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RULE 3.500. 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. 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. 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:
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(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. 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. 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
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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. 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. 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. DISCHARGE OF JURORS
After the jurors have retired to consider their verdict, the court shall
discharge them from the cause when:
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(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. 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. 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
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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. 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. 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 in arrest of judgment, or both
may be made, either orally in open court or in writing and filed with the clerk’s
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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 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 officer.
(e) Custody Pending Motion. Until the motion is disposed of, 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 motion is disposed of. If the defendant is already at liberty on bail
that is deemed by the court to be good and sufficient, it may permit the defendant
to continue at large on such bail until the motion for new trial is heard and
disposed of.
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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.
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RULE 3.600. GROUNDS FOR NEW TRIAL
(a) Grounds for Granting. The court shall grant a new trial if any of the
following grounds is established.
(1) The jurors decided the verdict by lot.
(2) The verdict is contrary to law or the weight of the evidence.
(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 Established. The court shall
grant a new trial if any of the following grounds is established, providing
substantial rights of the defendant were prejudiced thereby.
(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.
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(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. MOTION FOR ARREST OF JUDGMENT; GROUNDS
The court shall grant a motion in arrest of judgment only on 1 or more of the
following grounds:
(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 of which the defendant could
be convicted under the indictment or information under which the defendant was
tried.
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(d) The defendant was convicted of an offense for which the defendant
could not be convicted under the indictment or information under which the
defendant was tried.
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. 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. 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.
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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. 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. 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.
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RULE 3.670. RENDITION OF JUDGMENT
If the defendant is found guilty, a judgment of guilty and, if the defendant
has been acquitted, a judgment of not guilty shall 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 if the judge places the defendant
on probation.
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 shall forthwith inform the defendant concerning the rights of
appeal therefrom, including the time allowed by law for taking an appeal. Within
15 days after the signed written judgment and sentence is filed with the clerk of
court, the clerk of the court shall 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 shall be noted in the court file, but no further service shall be 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].
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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. 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. 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. POST-TRIAL RELEASE
(a) When Authorized. All persons who have been adjudicated guilty of
the commission of any offense, not capital, 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), provided
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that no person 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
such person has previously been convicted of a felony, the commission of which
occurred prior to the commission of the subsequent felony, and the person’s civil
rights have not been restored or if other felony charges are pending against the
person and probable cause has been found that the person 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 person
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 on appeal, the condition shall be: (1) the defendant will duly prosecute the
appeal; (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.
Committee Notes
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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. PETITION TO SEAL OR EXPUNGE
(a) Requirements of Petition.
(1) All relief sought by reason of sections 943.0585–943.059,
Florida Statutes, shall be by written petition, filed with the clerk. The petition shall
state the grounds on which it is based and the official records to which it is directed
and shall be supported by an affidavit of the party seeking relief, which affidavit
shall state with particularity the statutory grounds and the facts in support of the
motion. A petition seeking to seal or expunge nonjudicial criminal history records
must be accompanied by a certificate of eligibility issued to the petitioner by the
Florida Department of Law Enforcement. A copy of the completed petition and
affidavit shall be served on the prosecuting attorney and the arresting authority.
Notice and hearing shall be as provided in rule 3.590(c).
(2) All relief sought by reason of section 943.0583, Florida
Statutes, shall be by written petition, filed with the clerk. The petition shall state
the grounds on which it is based and the official records to which it is directed;
shall be supported by the petitioner’s sworn statement attesting that the petitioner
is eligible for such an expunction; and to the best of his or her knowledge or belief
that the petitioner does not have any other petition to expunge or any petition to
seal pending before any court; and shall be accompanied by official documentation
of the petitioner’s status as a victim of human trafficking, if any exists. A petition
to expunge, filed under section 943.0583, Florida Statutes, is not required to be
accompanied by a certificate of eligibility from the Florida Department of Law
Enforcement. A copy of 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. Notice and
hearing shall be as provided in rule 3.590(c).
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(b) State’s Response; Evidence. The state may traverse or demur to the
petition and affidavit. The court may receive evidence on any issue of fact
necessary to the decision of 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.
(d) Copies of Order. On the receipt of an order sealing or expunging
nonjudicial criminal history records, the clerk shall furnish a certified copy thereof
to each agency or department named therein except the court.
(e) Clerk’s Duties. In regard to the official records of the court, including
the court file of the cause, the clerk shall:
(1) 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;
(2) 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));
(3) in multi-defendant cases, make a certified copy of the contents
of the court file that shall be sealed under subdivision (2). Thereafter, all references
to the petitioner shall be expunged from the original court file.
(f) Costs. All costs of certified copies involved herein shall be borne by
the movant, unless the movant 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).
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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).
XIV. SENTENCE
RULE 3.700. 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.
[Editor’s Note: See Grossman v. State, 525 So.2d 833 (Fla. 1988), for
pronouncement procedure when defendant is sentenced to death.]
(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
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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. 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.
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(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.
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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.
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(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.
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(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
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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.
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(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
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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 require-ment 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.
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(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.
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RULE 3.702. 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
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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
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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
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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.
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(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
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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
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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.
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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. 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
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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.
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(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
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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
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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.
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(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;
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(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.
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(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.
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(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
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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
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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.
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(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. 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.
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(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.
(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
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prison releasee reoffender. The office of the state 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
one felony and the felonies were committed under more than one 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 one count of one offense before the court for sentencing shall be
classified as the primary offense.
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(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 one 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 one or more capital offenses before the
court for sentencing must not be included upon 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 one 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
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severity levels 3, 4, 5, 6, 7, 8, 9, and 10 must 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 under sections 775.0845, 775.087, 775.0875, or
794.023. Any such increase must be indicated in the space provided on the
Criminal Punishment Code score-sheet.
(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 must be considered prior serious felonies.
(13) If the offender has one 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.
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(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:
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(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 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.
(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 upon a failure to pay fines, costs, or restitution is
committed by a violent felony offender of special concern as defined in s. 948.06,
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twelve 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) while having in his or her 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) 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 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 the Law Enforcement
Protection Act under subsection 775.0823(2), (3), or (4), Florida Statutes, the
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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), the subtotal sentence points are
multiplied by 2.0. If the primary offense is a violation of section 784.07(3) or
775.0875(1) or the Law Enforcement Protection Act under subsection
775.0823(10) or (11), 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 three 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) with the victim or perpetrator, the subtotal sentence points are
multiplied by 1.5.
(24) “Total sentence points” are the subtotal sentence points or the
enhanced subtotal sentence points.
(25) 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 permissible range for sentencing
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must be the lowest permissible sentence up to and including the statutory
maximum, as defined in section 775.082, for the primary offense and any
additional offenses before the court for sentencing. The sentencing court may
impose such sentences concurrently or consecutively. However, any sentence to
state prison must exceed 1 year. If the lowest permissible sentence under the Code
exceeds the statutory maximum sentence as provided in section 775.082, the
sentence required by the Code must be imposed. If the total sentence points are
greater than or equal to 363, the court may sentence the offender to life
imprisonment. The sentence imposed must be entered on the scoresheet.
(26) 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.
(27) 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.
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(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).
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.
(28) 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 six 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 s. 921.00241, Florida Statutes, if the defendant meets
the requirements for that program as set forth in section 921.00241.
(29) 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.
(30) 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.
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RULE 3.710. 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 shall 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.
(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;
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and those matters listed in sections 948.015 (3)–(8) and (13), Florida Statutes. The Department
of Corrections should not recommend a sentence.
RULE 3.711. 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. 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.
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(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. 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
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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. 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) If the accused was represented by a public defender or other court
appointed counsel, the court shall notify the accused of the imposition of a lien
pursuant to section 938.29, Florida Statutes. The amount of the lien shall be given
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and a judgment entered in that amount against the accused. Notice of the accused’s
right to a hearing to contest the amount of the lien shall be given at the time of
sentence.
(2) If the accused requests a hearing to contest the amount of the
lien, the court shall set a hearing date within 30 days of the date of sentencing.
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. 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. 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
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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. 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. 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
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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. PROCEDURE WHEN PREGNANCY IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING DEATH SENTENCE
When pregnancy of a female 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 her alleged
pregnancy and to testify at the hearing as to whether she 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 she is pregnant, it shall
commit her to prison until it appears that she is not pregnant and shall then
pronounce sentence upon her.
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.
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RULE 3.780. SENTENCING HEARING FOR CAPITAL CASES
(a) Evidence. In all proceedings based on section 921.141, Florida
Statutes, 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. 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
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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 defendant to present evidence relevant to the offense, the defendant’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 defendant to present evidence relevant to whether or not the defendant
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 defendant is eligible for a
sentence review hearing under sections 921.1402(2)(a), (2)(b), or (2)(c), Florida
Statutes, based on whether the defendant killed, attempted to kill, or intended to
kill the victim.
(2) A defendant 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 defendant 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. 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 under the authority of the Department of Corrections to be supervised
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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
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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;
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(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;
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(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
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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. 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.
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(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(i).
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(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
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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.
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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
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“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. 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.
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(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).
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RULE 3.802. 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 pursuant to 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 pursuant to 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; or
(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 defendant was sentenced; and
(C) the sentence imposed;
(2) the nature of the relief sought;
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(3) whether a previous application has been filed, the date of filing
of the application, and the disposition of that application;
(4) a brief statement outlining the facts in support of the
application; and
(5) if the application is being filed by a juvenile offender sentenced
to life pursuant to section 775.082(1)(b)1., Florida Statutes, a statement certifying
that the applicant has not been previously convicted of one of the offenses
enumerated in sections 921.1402(2)(a)1.–(2)(a)10., Florida Statutes, or conspiracy
to commit one of offenses enumerated in sections 921.1402(2)(a)1.–(2)(a)10.,
Florida Statutes, in a separate criminal transaction or episode than that which
resulted in the sentence under section 775.082(1)(b)1., Florida Statutes.
(d) Procedure; Evidentiary Hearing; Disposition. Upon application
from an eligible juvenile offender, the trial court shall 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 shall attach such documents to the order. If an application is
denied as premature, the denial shall be without prejudice.
(1) At the sentence review hearing, the court shall 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;
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(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 shall 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 shall issue a
written order stating the reasons why the sentence is not being modified.
(e) Successive Applications. A second or successive application shall be
denied without a hearing, except under the following circumstances:
(1) the initial application was denied as premature; or
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(2) 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.
(f) Jurisdiction. The sentencing court shall retain original jurisdiction for
the duration of the sentence for the purpose of a sentence review hearing.
(g) 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 shall appoint a public defender to represent
the juvenile offender if the juvenile offender cannot afford an attorney.
XV. EXECUTION OF SENTENCE
RULE 3.810. 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, forthwith
commit the defendant to the custody of the sheriff under a commitment to which
shall be attached a certified copy of the sentence and, unless both are contained in
the same instrument if the sentence is imprisonment in the state prison, a certified
copy of the judgment of conviction and a certified copy of the indictment or
information, and the sheriff shall thereupon, within a reasonable time, if the sheriff
is not the proper official to execute the sentence, transfer the defendant, together
with the commitment and attached certified copies, 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 and make a return thereof 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
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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. 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.
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(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. 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.
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(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. 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.
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(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. DIRECT CRIMINAL CONTEMPT
A criminal contempt may be punished summarily if the court saw or heard
the conduct constituting the contempt committed in the actual presence of the
court. The judgment of guilt of contempt shall include a recital of those facts on
which the adjudication of guilt is based. 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. The defendant shall be
given the opportunity to present evidence of excusing or mitigating circumstances.
The judgment shall be signed by the judge and entered of record. Sentence shall be
pronounced in open court.
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
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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. 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
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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
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explanation. State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946); State ex rel.
Geary v. Kelly, 137 So.2d 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.
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(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
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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.2d 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
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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. 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.
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(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.
(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, or
(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 also include an explanation of:
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(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.
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(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 one or more claims for relief and it also attempts but fails
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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 one 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 one 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 one 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
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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
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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.
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(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.
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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 subsection.
(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.
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(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 excep¬tional 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.
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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.
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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).
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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.
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(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
bases for a defendant to seek to dismiss postconviction counsel in state court shall
be pursuant to statute due to actual conflict or subdivision (i) of this rule.
(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 shall assign the case to a judge qualified under the Rules of
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 shall conduct a status
conference not later than 90 days after the judicial assignment, and shall 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 electronically at the status conferences.
Requests to appear electronically shall be liberally granted. Pending motions,
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disputes involving public records, or any other matters ordered by the court shall
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 Appeal. The Clerk of the Supreme Court of Florida
shall promptly deliver the record on appeal to the records repository 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.
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(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
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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.
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(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
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(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.
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(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.
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(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 video communication
equipment 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 video communication equipment, there must be a notary public or
other person authorized to administer oaths in the witness’s jurisdiction who is
present with the witness and who administers the oath consistent with the laws of
the jurisdiction where the witness is located. The cost for the use of video
communication equipment 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
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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
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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
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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
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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;
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(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.
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(h) After Death Warrant Signed.
(1) Judicial Assignment. The chief judge of the circuit shall assign
the case to a judge qualified under the Rules of 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
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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 both to
dismiss pending postconviction proceedings and to discharge collateral counsel.
(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
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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 shall conduct a complete (Durocher/Faretta) inquiry to determine
whether the defendant knowingly, freely and voluntarily wants to dismiss pending
postconviction proceedings and discharge collateral counsel.
(7) If the court determines that the defendant has made the decision
to dismiss pending postconviction proceedings and discharge collateral counsel
knowingly, freely, and voluntarily, the court shall enter an order dismissing all
pending postconviction proceedings and discharging collateral counsel. But if the
court determines that the defendant has not made the decision to dismiss pending
postconviction proceedings and discharge collateral counsel knowingly, freely, and
voluntarily, the court shall enter an order denying the motion without prejudice.
(8) If the court grants the motion:
(A) a copy of the motion, the order, and the transcript of the
hearing or hearings conducted on the motion shall be forwarded to the Clerk of the
Supreme Court of Florida within 30 days; and
(B) discharged counsel shall, 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 shall, within 20 days after the filing of the
transcript, serve an initial brief. Both the defendant and the state may serve
responsive briefs. Briefs shall be served as prescribed by rule 9.210.
(9) If the court denies the motion, the defendant may seek review
as prescribed by Florida Rule of Appellate Procedure 9.142(b).
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(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
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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
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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.
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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
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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
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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.
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(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
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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
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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,
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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.
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(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.
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(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:
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(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
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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. 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 upon 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;
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(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) Upon receipt of the motion, the clerk of the court shall file it
and deliver the court file to the assigned judge.
(2) The court shall review the motion and deny it if it is facially
insufficient. If the motion is facially sufficient, the prosecuting authority shall be
ordered to respond to the motion within 30 days or such other time as may be
ordered by the court.
(3) Upon receipt of the response of the prosecuting authority, the
court shall 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 shall proceed to a hearing, the court
may appoint counsel to assist the movant if the court determines that assistance of
counsel is necessary and upon a determination of indigency pursuant to section
27.52, Florida Statutes.
(5) The court shall make the following findings when ruling on the
motion:
(A) Whether it has been shown that physical evidence that
may contain DNA still exists.
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(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 shall bear the cost of the DNA testing
ordered by the court.
(7) The court-ordered DNA testing shall be ordered to be
conducted by the Department of Law Enforcement or its designee, as provided by
statute. However, the court, upon 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 shall 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 shall 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
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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. 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.)
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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”)
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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
$ .
6. 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 ____
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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
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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.
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RULE 3.985. STANDARD JURY INSTRUCTIONS
The forms of Florida Standard Jury Instructions in Criminal Cases appearing
on the court’s website at www.floridasupremecourt.org/jury
_instructions/instructions.shtml may be used by the trial judges of this state in
charging the jury in every criminal case to the extent that the forms are applicable,
unless the trial judge shall determine that an applicable form of instruction is
erroneous or inadequate, in which event the judge shall modify or amend the form
or give such other instruction as the trial judge shall determine to be necessary to
instruct the jury accurately and sufficiently on the circumstances of the case; and,
in such event, the trial judge shall state on the record or in a separate order the
respect in which the judge finds the standard form erroneous or inadequate and the
legal basis of the judge’s finding. Similarly, in all circumstances in which the notes
accompanying the Florida Standard Jury Instructions in Criminal Cases contain a
recommendation that a certain type of instruction not be given, the trial judge may
follow the recommendation unless the judge shall determine that the giving of such
an instruction is necessary to instruct the jury accurately and sufficiently, in which
event the judge shall give such instruction as the judge shall deem appropriate and
necessary; and, in such event, the trial judge shall state on the record or in a
separate order the legal basis of the determination that the instruction is necessary.
Committee Notes
1972 Amendment. Same as prior rule.
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RULE 3.9855. JUROR VOIR DIRE QUESTIONNAIRE
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
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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. 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.
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(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
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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
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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 on this
judgment are the fingerprints of the defendant, , and that they were placed
thereon by the defendant in my presence in open court this date.
Judge
January 1, 2017 Florida Rules of Criminal Procedure 345
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(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 if checked:
$50.00 pursuant to section 938.03, Florida Statutes (Crimes
Compensation Trust Fund).
$3.00 as a court cost pursuant to section 938.01, Florida Statutes
(Criminal Justice Trust Fund).
$2.00 as a court cost pursuant to section 938.15, Florida Statutes
(Criminal Justice Education by Municipalities and Counties).
A fine in the sum of $ pursuant to section 775.0835, Florida
Statutes. (This provision refers to the optional fine for the Crimes Compensation
Trust Fund and is not applicable unless checked and completed. Fines imposed as
part of a sentence to section 775.083, Florida Statutes, are to be recorded on the
sentence page(s).)
A sum of $ pursuant to section 938.27, Florida Statutes
(Prosecution/Investigative Costs).
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A sum of $ pursuant to section 938.29, Florida Statutes (Public
Defender/Appointed Counsel Fees).
Restitution in accordance with attached order.
$201 pursuant to section 938.08, Florida Statutes (Funding Programs in
Domestic Violence).
A sum of $ for the cost of collecting the DNA sample required
by section 943.325, Florida Statutes.
Other
DONE AND ORDERED in open court in County, Florida, on
.....(date)......
Judge
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(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
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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 )
By appropriate notation, the following provisions apply to the sentence imposed:
Mandatory/Minimum Provisions:
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Firearm
It is further ordered that the 3–year minimum imprisonment
provision of section 775.087(2), Florida Statutes, is hereby
imposed for the sentence specified in this count.
Drug Trafficking
It is further ordered that the mandatory minimum
imprisonment provision of section 893.135(1), Florida Statutes,
is hereby imposed for the sentence specified in this count.
Controlled Substance Within 1,000 Feet of School
It is further ordered that the 3–year minimum imprisonment
provision of section 893.13(1)(c)1, Florida Statutes, is hereby
imposed for the sentence specified in this count.
Habitual Felony Offender
The defendant is adjudicated a habitual felony offender and has
been sentenced to an extended term in accordance with the
provisions of section 775.084(4)(a), Florida Statutes. The
requisite findings by the court are set forth in a separate order or
stated on the record in open court.
Habitual Violent Felony Offender
The defendant is adjudicated a habitual violent felony offender
and has been sentenced to an extended term in accordance with
the provisions of section 775.084(4)(b), Florida Statutes. A
minimum term of year(s) must be served prior to release.
The requisite findings of the court are set forth in a separate
order or stated on the record in open court.
Law Enforcement Protection Act
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It is further ordered that the defendant shall serve a minimum
of years before release in accordance with section 775.0823,
Florida Statutes. (Offenses committed before January 1, 1994.)
Capital Offense
It is further ordered that the defendant shall serve no less than
25 years in accordance with the provisions of section
775.082(1), Florida Statutes. (Offenses committed before
October 1, 1995.)
Short-Barreled Rifle, Shotgun, Machine Gun
It is further ordered that the 5–year minimum provisions of
section 790.221(2), Florida Statutes, are hereby imposed for the
sentence specified in this count. (Offenses committed before
January 1, 1994.)
Continuing Criminal Enterprise
It is further ordered that the 25–year minimum sentence
provisions of section 893.20, Florida Statutes, are hereby
imposed for the sentence specified in this count. (Offenses
committed before January 1, 1994.)
Taking a Law Enforcement Officer’s Firearm
It is further ordered that the 3–year mandatory minimum
imprisonment provision of section 775.0875(1), Florida
Statutes, is hereby imposed for the sentence specified in this
count. (Offenses committed before January 1, 1994.)
Sexual Offender/Sexual Predator Determinations:
Sexual Predator
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The defendant is adjudicated a sexual predator as set forth in section 775.21,
Florida Statutes.
Sexual Offender
The defendant meets the criteria for a sexual offender as set forth in section
943.0435(1)(a)1a., b., c., or d, Florida Statutes.
Age of Victim
The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve
the use of force or coercion.
Use of Force or Coercion/unclothed Genitals [Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or
genital area.
The molestation did did not involve the use of force or
coercion.
Other Provisions:
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Criminal Gang Activity
The felony conviction is for an offense that was found, pursuant
to section 874.04, Florida Statutes, to have been committed for
the purpose of benefiting, promoting, or furthering the interests
of a criminal gang.
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 .
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(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:
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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
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(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)
SECTION 1: Judgment Of Guilt
The Court hereby adjudges you to be guilty of the above offense(s).
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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.
(1) Not later than the fifth day of each month, you will make a full and
truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $ per
month toward the cost of your supervision, unless otherwise waived in compliance
with Florida Statutes.
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(3) You will not change your residence or employment or leave the
county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess,
carry, or own any weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law
shall not be necessary for such a violation to constitute a violation of your
probation.
(6) You will not associate with any person engaged in any criminal
activity.
(7) You will not use intoxicants to excess or possess any drugs or
narcotics unless prescribed by a physician. Nor will you visit places where
intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or
used.
(8) You will work diligently at a lawful occupation, advise your employer
of your probation status, and support any dependents to the best of your ability, as
directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you
by the court or the officer, and allow your officer to visit in your home, at your
employment site, or elsewhere, and you will comply with all instructions your
officer may give you.
(10) You will pay restitution, costs, and/or fees in accordance with the
attached orders.
(11) You will report in person within 72 hours of your release from
confinement to the probation office in County, Florida, unless
otherwise instructed by your officer. (This condition applies only if section 3 on
the previous page is checked.) Otherwise, you must report immediately to the
probation office located at .
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(12) You shall submit to the drawing of blood or other biological
specimens as required by section 943.325, Florida Statutes.
(13) You shall submit to the taking of a digitized photograph as required
by section 948.03, Florida Statutes.
SPECIAL CONDITIONS
You must undergo a (drug/alcohol) evaluation and, if treatment is deemed
necessary, you must successfully complete the treatment.
You will submit to urinalysis, breathalyzer, or blood tests at any time
requested by your officer, or the professional staff of any treatment center where
you are receiving treatment, to determine possible use of alcohol, drugs, or
controlled substances. You shall be required to pay for the tests unless payment is
waived by your officer.
You must undergo a mental health evaluation, and if treatment is deemed
necessary, you must successfully complete the treatment.
You will not associate with during the period of probation.
You will not associate with other criminal gang members or associates,
except as authorized by law enforcement officials, prosecutorial authorities, or the
court, for the purpose of aiding in the investigation of criminal activity.
You will not contact during the period of probation.
You will attend and successfully complete an approved batterers’
intervention program.
Other
(Use the space below for additional conditions as necessary.)
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You are hereby placed on notice that the court may at any time rescind or
modify any of the conditions of your probation, or may extend the period of
probation as authorized by law, or may discharge you from further supervision. If
you violate any of the conditions of your probation, you may be arrested and the
court may revoke your probation, adjudicate you guilty if adjudication of guilt was
withheld, and impose any sentence that it might have imposed before placing you
on probation or require you to serve the balance of the sentence.
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.
(This paragraph applies only if section 1 or section 2 is checked.)
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
January 1, 2017 Florida Rules of Criminal Procedure 360
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(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)
SECTION 1: Judgment of Guilt
The court hereby adjudges you to be guilty of the above offense(s).
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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.
(1) Not later than the fifth day of each month, you will make a full and
truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $ per month
toward the cost of your supervision, unless otherwise waived in compliance with
Florida Statutes.
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(3) You will not change your residence or employment or leave the
county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess,
carry, or own other weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law
shall not be necessary for such a violation to constitute a violation of your
community control.
(6) You will not associate with any person engaged in any criminal
activity.
(7) You will not use intoxicants to excess or possess any drugs or
narcotics unless prescribed by a physician. Nor will you visit places where
intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or
used.
(8) You will work diligently at a lawful occupation, advise your employer
of your community control status, and support any dependents to the best of your
ability as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you
by the court or your officer and allow your officer to visit in your home, at your
employment site or elsewhere, and you will comply with all instructions your
officer may give you.
(10) You will report to your officer at least 4 times a week, or, if
unemployed full time, daily.
(11) You will perform hours of public service work as directed by
your officer.
(12) You will remain confined to your approved residence except for one
half hour before and after your approved employment, public service work, or any
other special activities approved by your officer.
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(13) You will pay restitution, costs, and/or fees in accordance with the
attached orders.
(14) You will report in person within 72 hours of your release from
confinement to the probation office in County, Florida, unless otherwise
instructed by your officer. (This condition applies only if section 3 on the previous
page is checked.) Otherwise, you must report immediately to the probation office
located at .
(15) You shall submit to the drawing of blood or other biological
specimens as required by section 943.325, Florida Statutes.
(16) You shall submit to the taking of a digitized photograph as required
by section 948.101, Florida Statutes.
SPECIAL CONDITIONS
You must undergo a (drug/alcohol) evaluation, and if treatment is deemed
necessary, you must successfully complete the treatment.
You must undergo a mental health evaluation, and if treatment is deemed
necessary, you must successfully complete the treatment.
You will submit to urinalysis, breathalyzer, or blood tests at any time
requested by your officer, or the professional staff of any treatment center where
you are receiving treatment, to determine possible use of alcohol, drugs, or
controlled substances. You shall be required to pay for the tests unless payment is
waived by your officer.
You will not associate with during the period of community control.
You will not associate with other criminal gang members or associates,
except as authorized by law enforcement officials, prosecutorial authorities, or the
court, for the purpose of aiding in the investigation of criminal activity.
You will not contact during the period of community control.
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You will maintain an hourly accounting of all your activities on a daily log
which you will submit to your officer on request.
You will participate in self-improvement programs as determined by the
court or your officer.
You will submit to electronic monitoring of your whereabouts as required by
the Florida Department of Corrections.
You will attend and successfully complete an approved batterers’
intervention program.
Other
(Use the space below for additional conditions as necessary.)
You are hereby placed on notice that the court may at any time rescind or
modify any of the conditions of your community control, or may extend the period
of community control as authorized by law, or may discharge you from further
supervision or return you to a program of regular probation supervision. If you
violate any of the conditions and sanctions of your community control, you may be
arrested, and the court may adjudicate you guilty if adjudication of guilt was
withheld, revoke your community control, and impose any sentence that it might
have imposed before placing you on community control.
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. (This paragraph applies only if
section 1 or section 2 is checked.)
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.
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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
January 1, 2017 Florida Rules of Criminal Procedure 366
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(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.)
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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)
The sum of $ for medical and related services and devices
relating to physical, psychiatric, and psychological care,
including non-medical care and treatment rendered in
accordance with a recognized method of healing.
The sum of $ for necessary physical and occupational
therapy and rehabilitation.
The sum of $ to reimburse the victim for income lost as a
result of the offense.
The sum of $ for necessary funeral and related services if the
offense resulted in bodily injury resulting in the death of the
victim.
The sum of $ for damages resulting from the offense.
The sum of $ for
It is further ordered that the defendant fulfill restitution obligations in the
following manner:
Total monetary restitution is determined to be $ to be paid at
a rate of $ per (check one) month week other
(specify) and is to be paid (check one) through
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the clerk of the circuit court, to the victim’s designee,
or through the Department of Corrections, with an
additional 4% fee of $ for handling, processing, and
forwarding the restitution to the victim(s).
For which sum let execution issue.
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).
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RULE 3.987. 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
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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 also be submitted under oath and state as follows:
(a) that you are the defendant in the cause,
(b) that you understand English or, if you cannot understand
English, that you have had the motion translated completely into a language that
you 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,
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(c) that you have either read your motion or had it read to you,
(d) that you understand all of its contents,
(e) that your motion is filed in good faith, 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,
(f) that all of the facts stated in your motion are true and correct,
and
(g) that you are subject to sanctions, whether imposed by the court
or administratively by the Department of Corrections, including but not limited to
forfeiture of gain time, if your motion is found to be frivolous, malicious, or
otherwise made in bad faith or with reckless disregard for the truth.
(8) 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), 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):
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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
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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:
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(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:
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(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:
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(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:
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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.
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(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):
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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
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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.
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(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.
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2. Such other and further relief as the court deems just and proper.
OATH
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#
Certificate of Mailing
(Must use Certificate of Mailing OR Certificate of Service)
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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#
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RULE 3.9875. 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.
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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?
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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?
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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)
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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#
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RULE 3.988. 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/D64B801203BC91948525670900
6A561C/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument
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RULE 3.989. AFFIDAVIT, PETITION, AND ORDER TO EXPUNGE
OR SEAL FORMS
(a) Affidavit 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 )
)
AFFIDAVIT
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 affidavit.
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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 any
law.
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 ...........
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Type of identification produced ....................
My commission expires:
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(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 upon 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.
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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.
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.
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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
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(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.
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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.
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)......
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Circuit Court Judge
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(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 ..... 943.0585, 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)......
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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 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, former section 943.058,
Florida Statutes, former section 893.14, Florida Statutes, or former section 901.33,
Florida Statutes, or any other law, rule, or authority.
5. (To be used only when requesting expunction.) The petitioner’s record
has been sealed under section 943.059, Florida Statutes, former section 943.058,
Florida Statutes, former section 893.14, Florida Statutes, or former section 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).....; ....................
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(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.:
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(e) 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 3.692 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)......
January 1, 2017 Florida Rules of Criminal Procedure 403
The Florida Bar
2. The petitioner has been the victim of human trafficking, as discussed
in section 787.06, Florida Statutes, and has committed an offense, other than those
offenses listed in 775.084(1)(b)1, which was 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).....; ....................
(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.:
Personally known ………. or produced identification ……….
Type of identification procedure ………..
My commission expires:
January 1, 2017 Florida Rules of Criminal Procedure 404
The Florida Bar
(f) Affidavit 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. )
)
AFFIDAVIT/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 affidavit.
2. I have been the victim of human trafficking, as discussed in section
787.06, Florida Statutes, and have committed an offense, other than those offenses
listed in 775.084(1)(b)1, which was 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.
January 1, 2017 Florida Rules of Criminal Procedure 405
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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, and .....(do or do not)..... have any other petition to expunge or seal pending
before any 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:
January 1, 2017 Florida Rules of Criminal Procedure 406
The Florida Bar
(g) 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 3.692
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, other than those
offenses listed in 775.084(1)(b)1, which was committed as a part of a human
January 1, 2017 Florida Rules of Criminal Procedure 407
The Florida Bar
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 3.692; 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 943.0583, 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 3.692.
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
January 1, 2017 Florida Rules of Criminal Procedure 408
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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.
January 1, 2017 Florida Rules of Criminal Procedure 409
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RULE 3.990. SENTENCING GUIDELINES SCORESHEET
Available on this web page:
http://www.floridabar.org/tfb/TFBLegalRes.nsf/D64B801203BC91948525670900
6A561C/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument
RULE 3.991. SENTENCING GUIDELINES SCORESHEETS
(OCTOBER 1, 1995)
Available on this web page:
http://www.floridabar.org/tfb/TFBLegalRes.nsf/D64B801203BC91948525670900
6A561C/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument
RULE 3.992. CRIMINAL PUNISHMENT CODE SCORESHEET
(a) Criminal Punishment Code Scoresheet.
Available on this web page:
http://www.dc.state.fl.us/pub/sen_cpcm/index.html
(b) Supplemental Criminal Punishment Code Scoresheet.
Available on this web page:
http://www.floridabar.org/tfb/TFBLegalRes.nsf/D64B801203BC91948525670900
6A561C/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument
January 1, 2017 Florida Rules of Criminal Procedure 410
The Florida Bar
RULE 3.993. 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
January 1, 2017 Florida Rules of Criminal Procedure 411
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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]
January 1, 2017 Florida Rules of Criminal Procedure 412
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(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.
January 1, 2017 Florida Rules of Criminal Procedure 413
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 414
The Florida Bar
(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.
January 1, 2017 Florida Rules of Criminal Procedure 415
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 416
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(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)......
January 1, 2017 Florida Rules of Criminal Procedure 417
The Florida Bar
[name, address, and e-mail address of
attorney general]
January 1, 2017 Florida Rules of Criminal Procedure 418
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 419
The Florida Bar
[name, address, and e-mail address of
Secretary of Department of
Corrections]
January 1, 2017 Florida Rules of Criminal Procedure 420
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 421
The Florida Bar
[name, address, and e-mail address of
chief law enforcement officer]
January 1, 2017 Florida Rules of Criminal Procedure 422
The Florida Bar
(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.
January 1, 2017 Florida Rules of Criminal Procedure 423
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 424
The Florida Bar
(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.
January 1, 2017 Florida Rules of Criminal Procedure 425
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 426
The Florida Bar
(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.
January 1, 2017 Florida Rules of Criminal Procedure 427
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 428
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 429
The Florida Bar
[name, address, and e-mail address of
person or agency]
January 1, 2017 Florida Rules of Criminal Procedure 430
The Florida Bar
(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
January 1, 2017 Florida Rules of Criminal Procedure 431
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 432
The Florida Bar
[name, address, and e-mail address of
attorney for defendant]
January 1, 2017 Florida Rules of Criminal Procedure 433
The Florida Bar
(
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]
January 1, 2017 Florida Rules of Criminal Procedure 434
The Florida Bar
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]
January 1, 2017 Florida Rules of Criminal Procedure 435
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 436
The Florida Bar
[name, address, and e–mail address of
person or agency]
January 1, 2017 Florida Rules of Criminal Procedure 437
The Florida Bar
(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)......
January 1, 2017 Florida Rules of Criminal Procedure 438
The Florida Bar
Judge
Judge’s address and e-mail address
January 1, 2017 Florida Rules of Criminal Procedure 439
The Florida Bar
(
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)......
January 1, 2017 Florida Rules of Criminal Procedure 440
The Florida Bar
[name of secretary of state]
By:
[name of representative of secretary
of state]
Address and e-mail address
January 1, 2017 Florida Rules of Criminal Procedure 441
The Florida Bar
RULE 3.994. 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.
January 1, 2017 Florida Rules of Criminal Procedure 442
The Florida Bar
[ ] 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. 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
January 1, 2017 Florida Rules of Criminal Procedure 443
The Florida Bar
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
