In re Florida Rules of Criminal Procedure (196 So. 2d 124, 1967)

PER CURIAM.

Appended to this Order is a complete compilation of the Florida Rules of Criminal Procedure adopted pursuant to the power vested in this Court by Article V of the Florida Constitution, F.S.A. This compilation of the Florida Rules of Criminal Procedure shall govern all proceedings within the scope of these rules after midnight December 31, 1967. This compilation shall supersede all conflicting rules and statutes. All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court

These rules shall be known and cited as Criminal Procedure Rules and may be abbreviated as “CrPR”,

Also appended to this Order regarding the Florida Rules of Criminal Procedure are notes and comments of the Florida Court Rules Committee Sub-Committee on Rules of Criminal Procedure. These committee notes and comments are not a part of the formal Order and do not have force of law or.approval of this Court. They are merely included for whatever benefit they may have to the bench and bar.

Adopted and approved by the Court en banc on March 1, 1967.

It is so ordered.

THORNAL, C. J., and THOMAS, ROBERTS, DREW, O’CONNELL, CALDWELL and ERVIN, JJ., concur.

TABLE OF CONTENTS

FLORIDA RULES OF CRIMINAL PROCEDURE

I SCOPE, PURPOSE AND CONSTRUCTION

Rule 1.010 — Scope

1.020 — Purpose and Construction

II GENERAL PROVISIONS

1.030 — Service of Pleadings and Papers

1.040 — Computation of Time

1.050 — Enlargement of Time

1.060 — Time for Service of Motions and Notice of Hearing

1.070 — Additional Time after Service by Mail

1.080 — Pleadings to be Signed by Attorney

1.090 — Pleadings to be Signed by Unrepresented Defendant

1.100 — -Attorney not to be Surety

1.110 — Televising, Photographing, Radio Broadcasting of Trial

III PRELIMINARY PROCEEDINGS

1.120 — Committing Magistrate

1.121 — Arrest Warrants

1.122 — Preliminary Hearing

1.130 — Bail

1.140 — Indictments, Informations and Affidavits

1.150 — Process Upon Indictment, Information and Affidavit

IV ARRAIGNMENT AND PLEAS

1.160 — Arraignment

1.170 — Pleas

1.180 — Presence of Defendant

V PRE-TRIAL MOTIONS AND DEFENSES

1.190 — Pre-Trial Motions

1.200 — Notice of Alibi

1.210 — Insanity

VI DISCOVERY

1.220 — Discovery

VII DISQUALIFICATION OF JUDGE

1.230 — Disqualification of Judge

VIII CHANGE OF VENUE

1.240 — Change of Venue

IX THE TRIAL

1.250 — Accused as Witness

1.260 — Waiver of Jury Trial

1.270 — Number of Jurors

1.280 — Alternate Jurors

1.290 — Jury Panel; Examinations; Oath and Excusing of Member

1.300 — Challenge to Panel

1.310 — Time for Challenge

1.320 — Manner of Challenge

1.330 — Determination of Challenge for Cause

1.340 — Effect of Sustaining Challenge

1.350 — Number of Peremptory Challenges

1.360 — -Oath of Trial Jurors

X CONDUCT OF TRIAL; THE JURY; INSTRUCTIONS

1.370 — Trial of Jointly Charged Defendants

1.380 — Regulation and Separation of Jurors

1.390 — Selection of Foreman of Jury

1.400 — Deliberation of Jury; What Jurors May Have With Them

1.410 — Return of Jury for Supplemental Instructions

1.420 — Recall of Jury for Additional Instructions

1.430 — Jury Not Recallable to Hear Additional Evidence

XI THE VERDICT

1.440 — Rendition of Verdict; Reception and Recording

1.450 — Polling the Jury

1.460 — Acquittal for Cause of Insanity

1.470 — Proceedings on Sealed Verdict

1.480 — Admonition to Jurors as to Sealed Verdict

1.490 — Determination of Degree of Offense

1.500 — Verdict of Guilty Where More Than One Count

1.510 — Conviction of Contempt; Lesser Included Offense

1.520 — Verdict in Case of Joint Defendants

1.530 — Reconsideration of Ambiguous or Defective Verdict

1.540 — When Verdict May Be Rendered

1.550 — Disposition of Defendant

1.560 — Discharge of Jurors

1.570 — Irregularity in Rendition, Reception and Recording of the Verdict

XII POST-TRIAL MOTIONS

1.580 — Court May Grant New Trial

1.590 — Time for and Method of Making Motions; Procedure ; Custody Pending Hearing

1.600 — Grounds for New Trial

1.610 — Motion for Arrest of Judgment ; Grounds

1.620 — When Evidence Sustains Only Conviction of Lesser Offense

1.630 — Sentence Before or After Motion Filed; Evidence at Hearing

1.640 — Effect of Granting New Trial

XIII JUDGMENT

1.650 — Judgment Defined

1.660 — Motion for Judgment of Acquittal

1.670 — Rendition of Judgment

1.680 — Judgment on Informal Verdict

1.690 — Judgment of Not Guilty; Defendant Discharged and Sureties Exonerated

XIV SENTENCE

1.700 — Sentence Defined; Pronouncement and Entry

1.710 — How Defendant Brought Before Court When Not in Custody

1.720 — Defendant’s Right to Show Cause Why Sentence Should Not Be Pronounced

1.730 — Causes for Not Pronouncing Sentence

1.740 — Procedure When Insanity Is Alleged as Cause for Not Pronouncing Sentence

1.7S0 — Procedure When Pardon Is Alleged as Cause for Not Pronouncing Sentence

1.760 — Procedure When Non-Identity Is Alleged as Cause for Not Pronouncing Sentence

1.770 — -Procedure When Pregnancy Is Alleged as Cause for Not Pronouncing Sentence

1.780 — Inquiry into Mitigating or Aggravating Circumstances Prior to Sentence

1.790 — Probation Hearing; Presen-tence Investigation; Suspension of Sentence; Order of Probation

1.800 — Correction and Reduction of Sentences

XV EXECUTION OF SENTENCE

1.810 — Commitment of Defendant; Duty of Sheriff

1.820 — Habeas Corpus; Custody Pending Appeal

XVI CRIMINAL CONTEMPT

1.830 — Direct Criminal Contempt

1.840 — Indirect Criminal Contempt

XVII POST-CONVICTION RELIEF

1.8S0 — Motion to Vacate, Set Aside or Correct Sentence; Hearing; Appeal

1.860 — Criminal Practice by Senior Law Students

I SCOPE, PURPOSE AND CONSTRUCTION

RULE 1.010 SCOPE

These rules shall govern the procedure in all criminal proceedings in state courts.

Committee Note: These rules are not intended to apply to municipal courts, but are intended to apply to all state courts where “crimes” are charged.

RULE 1.020 PURPOSE AND CONSTRUCTION

Purpose.- — 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 Note: Substantially the same as Federal Rule 2.

II GENERAL PROVISIONS

RULE 1.030 SERVICE OF PLEADINGS AND PAPERS

(a) Service; When Required. — Every pleading subsequent to the initial indictment, information or affidavit upon which 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 as to which a hearing ex parte is authorized, and every written notice, demand and similar paper shall be served on each party; however, nothing herein shall be construed to require that a plea of not guilty- shall be in writing.

(b) Same; How Made. — Where under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or, if no address is known, by leaving it with the clerk of the court who shall place it in the court file. Delivery of a copy within this rule shall mean: handing it to the attorney or to the party; or, leaving it at his office with his secretary or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen years of age and informing such person of the contents thereof. Service by mail shall be deemed complete upon mailing.

(c) Filing. — All original papers, copies of which are required to be served upon parties, must be filed with the court either before service or immediately thereafter.

(d) Filing With the Court Defined.— The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the clerk.

(e) Certificate of Service. — When any attorney shall in substance certify:

“I do certify that copy (copies) hereof have been furnished to (here insert name or names) by (delivery) (mail) this_day of-, 19--

Attorney”

the certificate shall be taken as prima facie proof of such service in compliance with all rules of court and law.

Committee Note: Taken from rules of civil procedure.

RULE 1.040 COMPUTATION OF TIME

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

Committee Note: Taken from rules of civil procedure.

RULE 1.0S0 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 request therefor is made' before the expiration of the period originally prescribed or as 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 where 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 Note: Taken from rules of civil procedure.

RULE 1.060 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 Note: Taken from rules of civil procedure.

RULE 1.070 ADDITIONAL TIME AFTER SERVICE BY 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 oPother paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.

Committee Note: This is the same as Rule 1.6(e), Florida Rules of Civil Procedure, except for the omission of sub-paragraph (c) of the civil rules which appears to be inapplicable to criminal cases.

RULE 1.080 PLEADINGS TO BE SIGNED BY ATTORNEY

Every written pleading or paper of a party represented by an attorney shall be signed in his individual name by such attorney, whose address shall be stated, and he may be required by an order of court to vouch for his authority to represent such party. Except when otherwise specifically provided by these rules, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or paper; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading or paper is not signed, or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading or paper had not been served.

Committee Note: Taken from rules of civil procedure.

RULE 1.090 PLEADINGS TO BE SIGNED BY UNREPRESENTED DEFENDANT

A defendant who has no attorney but represents himself shall sign his written pleading and state his address.

Committee Note: Taken from rules of civil procedure.

RULE 1.100 ATTORNEY NOT TO BE SURETY

No attorney or other officer of court shall enter himself or be taken as bail or surety in any proceeding in court on pain of being considered in contempt.

Committee Note: This rule is the same as Rule 1.5(c), Rules of Civil Procedure.

RULE 1.110 TELEVISING, PHOTOGRAPHING, RADIO BROADCASTING OF TRIAL

The ' taking of television pictures or other photographs in or of the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.

Committee Note: This is the same as Federal Rule 53, except for the addition of “television” and the insertion “or of” the courtroom. This proposal was adopted unanimously by the committee.

Ill PRELIMINARY PROCEEDINGS

RULE 1.120 COMMITTING MAGISTRATE

Each state judicial officer is a committing magistrate and may issue a warrant for the arrest of a person against whom a complaint, in writing and under oath, is made, when the complaint states facts which show a violation of a criminal law. The magistrate may commit an offender to jail or recognize him to appear before the proper court at its next ensuing term to answer the charge in the complaint, or may discharge him from custody.

Committee Note: This is substantially the same as part of 901.01 (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 rule making power of the Supreme Court.

RULE 1.121 ISSUANCE OF ARREST WARRANTS

(a) A warrant may be issued for the arrest of a person designated in a written complaint, under oath, when the complaint states facts which show that such person violated a criminal law of this state, within the jurisdiction of the magistrate before whom the complaint is made. The magistrate may take testimony under oath to determine if there is reasonable ground to believe the complaint is true.

(b) The warrant of arrest 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 he arrested and brought before the magistrate issuing the warrant or, if he is absent or unable to act, before the nearest or most accessible magistrate in the same County;

(4) Specify the name of the person to be arrested or, if his name is unknown to the magistrate, designate such person by any name or description by which he can be identified with reasonable certainty;

(5) State the date when issued and the County and justice district where issued;

(6) Be signed by the magistrate with the title of his office; and,

(7)In all offenses bailable as of right be endorsed with the amount of bail and the return date on the back of the warrant

(c)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 magistrate to remedy such defect.

Committee Note: (a) This is substantially the same as 901.02, except that the rule requires a written complaint. Also, the rule does not incorporate that seldom used part of the statute which permits the magistrate to issue an arrest warrant upon affidavits made before the prosecuting attorney.

(b) This is the same as 901.03.

(c) This is the same as 901.05, except for modernizing the language.

RULE 1.122 PRELIMINARY HEARING

(a) Duty of Magistrate. — When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a complaint of having committed an offense, the magistrate shall immediately inform him:

(1) of the charge against him;

(2) of the purpose of a preliminary hearing;

(3) of his right to the aid of counsel during the preliminary hearing;

(4) of his right to have or to waive such hearing;

(5) of his right not to testify, and also caution him that in the event he does testify, anything that he says may he used against him in a subsequent hearing or proceeding.

(b) Waiver of Preliminary Hearing.

(1) The defendant may waive a preliminary hearing and if he does so such waiver shall be in writing. If he waives preliminary hearing, the magistrate shall hold him to answer and shall either admit him to bail or commit him to custody.

(2) Notwithstanding a waiver of the hearing by the defendant, the magistrate, on the demand of the prosecuting attorney, shall examine the witnesses for the state and have their testimony reduced to writing or recorded verbatim stenographically or by mechanical means. After hearing the testimony if it appears that there is no probable cause to believe the defendant guilty of any offense, the magistrate shall order that he be discharged.

(c) Sending for Counsel. — The magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the hearing for such purpose. He shall also, upon "request of the defendant, require an officer to communicate a message to such counsel in the county as the defendant may name. The officer shall with diligence and without cost to the defendant perform that duty.

(d) Magistrate to Proceed With Hearing Unless Waived.—

(1) If the defendant waives the aid of counsel, the magistrate shall immmediately proceed to examine the case unless the defendant waives hearing.

(2) If the defendant requests the aid of counsel the magistrate shall, immediately after the appearance of counsel, or, after waiting a reasonable time therefor, if none appears, proceed to examine the case unless the defendant waives hearing.

(e) Postponement of Hearing. — The magistrate may for good cause postpone the hearing. If no postponement is ordered, the hearing shall be completed at one session. No postponement shall be for more than two days, nor shall the postponements in all exceed six days, except for exceptional circumstances.

(f) Bail After Postponement. — If a postponement is ordered, unless the defendant is already admitted to bail, the magistrate, if the defendant is bailable as of right, shall admit him to bail for his appearance at the time to which the hearing is postponed. If bail is not furnished, the magistrate shall commit him to custody for further hearing of the case.

(g)Summoning of Witnesses. — The magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state, for the state or the defendant.

• (h) Presence of Defendant and Cross-examination of Witnesses. — All witnesses shall be examined in the presence of the defendant and may be cross-examined.

(i) Examination of Witnesses for Defendant. — At the conclusion of the testimony for the prosecution the defendant shall, if he so elects, be sworn and testify in his own behalf, and in such cases be warned in advance that anything he may say can be used against him at a subsequent trial. He may be cross-examined as other witnesses; and, whether he testifies or not any witness produced by him shall be sworn and examined.

(j) Exclusion and Separation of Witnesses. — Prior to the examination of any witness in the cause, the magistrate may and on the request of the defendant shall exclude all other witnesses. He also may cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(k) Testimony of Witnesses.- — At the request of the prosecuting attorney the testimony of the witnesses and of the defendant, if he testifies, shall be recorded verbatim stenographically or by mechanical means, and transcribed. If the testimony, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of such testimony shall be furnished free of cost to defendant or his counsel.

(l) If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has- committed it, the magistrate shall forthwith hold the defendant to answer to the court having trial jurisdiction, otherwise, the magistrate shall discharge him.

(m) Transmission of Papers by Magistrate.—

(1) When the magistrate has discharged the defendant, or has held him to answer, he shall transmit within 7 days thereafter to the clerk of the court having trial jurisdiction of the offense:

(a) The complaint and warrant;

(b) The written testimony of the witnesses if transcribed and filed;

(c) The recognizance or undertaking for the appearance of.witnesses;

(d) A copy of the order discharging or holding the defendant;

(e) Every article, writing, money, or other exhibit received in evidence; provided, however, that such articles, writings, moneys, or other exhibits so used in evidence before said magistrate may be returned to the owner thereof upon written order of the judge of the court having jurisdiction to try the defendant.

(2) Any magistrate who refuses or fails to transmit the papers and articles so mentioned, may be ordered to do so by the court having trial jurisdiction of the offense charged and if he disobeys such orders may be held for contempt.

Committee Note: (a) Substantially the same as 902.01; the word “examination” is changed to “hearing” to conform to modern terminology.

(b through j) Substantially the same as -902.02 through 902.10 and 902.13 and 902.14, except for exchange of “hearing” for “examination.”

(k) Parts of Section 902.11, and all of 902.12 were omitted because of conflict with case law: Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.

(l) Taken from Federal Rule. 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 902.18 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.

RULE 1.130 BAIL

(a) Offenses Less Than Capital. — All persons in custody for the commission of an offense, not capital, shall before conviction be entitled as of right to be admitted to bail, and after conviction bail may be granted at the discretion of either the trial or appellate court.

(b) Notice of Application for Admission to Bail; Subsequent Application.—

(1) The court to which an application for admission to bail is made shall in all cases require written notice thereof to be given to the prosecuting attorney of the court having trial jurisdiction of the offense at least one hour before the hearing, unless notice is waived in writing by such prosecuting attorney.

(2) When a committing magistrate, 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 is alleged to be excessive, application by motion may be made to the court having jurisdiction to try defendant, or in the absence of the judge of said trial court, to the circuit court.

(3) In thé event 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 shall be given to the attorney general.

(c) Application for Bail Denied. — If application for bail is made to an authorized court and denied, no court of inferior jurisdiction shall admit applicant to. bail, unless such court of inferior jurisdiction is the court having jurisdiction to try the defendant.

(d) Bail Before Conviction; Condition of the Undertaking.—

(1) If a person is admitted to bail for his appearance for a preliminary hearing, or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that he will appear for such hearing, or to answer the charge, and will submit himself to the orders and process of the magistrate trying the same, and will not depart without leave.

(2) If he is admitted to bail after he has been held to answer by a magistrate, or after an indictment, information or affidavit on which he is to be tried has been filed against him, the condition of the undertaking shall be that he will appear to answer the charges before the court in which he may be prosecuted and submit to the orders and process of the court, and will not depart without leave.

(e) Bail on Appeal; Condition of the Undertaking. — If the defendant is admitted to bail after conviction and upon appeal, the condition of the undertaking shall be:

(1) That he will duly prosecute his appeal;

(2) That he will surrender himself in execution of the judgment or sentence upon its being affirmed or modified or upon the appeal being dismissed; or in case the judgment is reversed and the cause remanded for a new trial, that he will appear in the court to which said cause may be remanded and submit himself to the orders and process thereof, and will not depart without leave.

(f) Increase or Reduction of Bail.— The court in which a prosecution is pending may for good cause, after notice, either increase or reduce the amount of bail or require new or additional bail.

(g) 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 him to the custody of the proper official to abide the judgment, sentence and any further order of the court.

(h) 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 in the following cases:

(1) When there has been a breach of the undertaking;

(2) When it appears that his sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state;

(3) When the court is satisfied that the bail should be increased or new or additional security required;

(4) When an indictment has been found against the defendant for an offense for which he is not bailable.

The order for the commitment of the defendant shall recite generally the facts upon 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 would be had he not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment or because an indictment has been found against him, for an offense for which he is not bailable, the defendant shall be committed. If the order is made for any other cause and the defendant is bailable the court may fix the amount of bail and direct in the order that the defendant be admitted to bail in the sum fixed, which sum shall be specified in the order.

(i) Bail After Recommitment. — If the ■ defendant applies to be admitted to bail after recommitment and he is bailable, he shall be admitted to bail by the court which ' recommitted him.

(j) 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.

■Committee Note:

(a) Same as 903.01.

(b) Same as 903.04.

(c) Same as 903.02.

(d) Same as 903.12.

(e) Substantially same as 903.13.

(f) Same as 903.19.

(g) Same as 918.01.

(h) Substantially same as 903.23.

(i) Same as 903.24.

(j) Same as 903.25.

. Although section (g) is the same as '918.01 its constitutionality was questioned by the sub-committee, constitutional right to bail and presumption of innocence.

RULE 1.140 INDICTMENTS, IN-FORMATIONS AND AFFIDAVITS

'(a) Methods -of Prosecution.—

(1) 'Capital Crimes. — An offense which may be punished by death shall be prose■cuted by indictment.

(2) '-Other Crimes. — The prosecution of ■all other criminal offenses shall be as follows :

In 'criminal courts of record and in the 'Court 'O'f Record of Escambia County, prosecution shall be solely by information; ;in County Judge’s Courts having elective prosecuting attorneys, by indictment, information or affidavit; in all courts not hereinabove mentioned which have elective prosecuting attorneys, by indictment or information; and in courts not having elective prosecuting attorneys, by indictment or affidavit. 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 commit or bail the accused for trial in a court having jurisdiction to try the offense, and such judge, or at his direction, the clerk of the circuit court shall certify the indictment and deliver it to the clerk of the court to which the accused is committed or bailed for trial or to the judge of such court if it has no clerk.

(b) Nature of Indictment, Information or Affidavit. — The indictment, information or .affidavit upon 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 and Date. — ■

(1) Caption. — No formal caption is essential to the validity of an indictment, information or affidavit upon which the defendant is to be tried. Upon objection 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)

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, informations or affidavits upon 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, information or affidavit 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.

(d)The Charge.—

(1) Allegation of Facts; Citation of Law Violated. — Each count of an indictment, information or affidavit upon 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 which 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 conviction based thereon if the error or omission did not mislead the defendant to his prejudice.

(2) Name of Accused. — The name of the accused person shall be stated, if known, and if not known, he may be described by any name or description by which he 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 he can be identified with reasonable certainty, the indictment, information or affidavit, 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, information or affidavit upon 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 count.

(4) Joinder of Offenses. — Two or more offenses which are triable in the same court may be charged in the same indictment, information or affidavit in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two or more acts or transactions connected together, provided the court in which the indictment, information or affidavit is filed has jurisdiction to try all of the offenses charged.

(5) Joinder of Defendants. — Two or more defendants may be charged in the same indictment, information or affidavit upon which the defendant is to be tried if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

(6) Allegation of Intent to Defraud.— When 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 one count shall not be incorporated by reference in another count.

(f) Indorsement and Signature — Indictment. — An indictment shall be signed by the foreman or the acting foreman of the grand jury returning the indictment. The state attorney, or acting state attorney shall make and sign a statement on the indictment ’to the effect that such prosecuting officer, as authorized and required by law, has advised the grand jury returning the indictment. No objection to the indictment on the ground that such statement has not been made shall be entertained after the defendant pleads to the merits.

(g) Signature and Oath — Information. —An information shall be signed by the legally authorized prosecuting attorney under oath stating his 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, information or affidavit on which the defendant is to be tried need contain no formal conclusion.

(i) Surplusage. — An unnecessary allegation may be disregarded as surplusage and, upon motion of the defendant, may be stricken from the pleading by the court.

(j) Amendment of Information. — An information or affidavit upon which the defendant is to be tried which 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:

(l) 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 aver-ments 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.

(3) ludgments; 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 such judgment, determination or proceeding, without alleging facts conferring jurisdiction on such 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 which may be committed by the doing of one or more of several acts, or by one or more of several means, or with one or more of several intents or results, it is permissible to allege in the disjunctive or alternative such two or more 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 and Inspection. — Unless otherwise ordered by the court having jurisdiction, all indictments, informations and affidavits 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 has been admitted to bail, or until one year has elapsed between the return of an indictment, or the filing of an information, or the making of the affidavit, after which time the same shall be open for inspection for public inspection.

(m) Defendant!s Right to Copy of Indictment, Information or Affidavit. — Each person who has been indicted or informed against for an offense, or charged by affidavit, shall, upon application to the clerk, be furnished a copy of the indictment, information, or affidavit and the indorse-ments thereon, at least twenty-four hours before he is required to plead thereto, and he shall not be required to plead to such indictment, information or affidavit if a copy has not been so furnished to him. A failure to furnish such copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment, information, or affidavit.

(n) Statement of Particulars. — The court, upon motion, shall order the prosecuting attorney to furnish a statement of ■particulars, when the indictment, information or affidavit upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Such 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. If there is no prosecuting attorney for the county judge’s court or the court of a justice of the peace to which application for a statement of particulars is made by a defendant charged by an affidavit lacking in such particulars the affiant shall be required to furnish the statement of particulars.

(o) Defects and Variances. — No indictment or information, or any count thereof, or any affidavit shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment, information or affidavit or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment, information, or affidavit is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Committee Note: 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. Clemmons, 150 So.2d 231, 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 determining its make-up 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 t® the Supreme Court the authority over this- phase of the judicial scheme, the following material' is- appr©>-priate for consideration: as a part of the proposed Rules:

(a) (1) Capital Crimes.- — This recommendation is consistent with present Florida law. (See sec. 10'HR’, Fla.Const.; sec:. 904.01 FS ’63.) 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 Criminal Procedure Rule 7(a) and in the American Law Institute’s Code of Criminal Procedure, sec. 11 Sr- The terminology used in the 1963 Code of Criminal Procedure of Illinois is “when death is a possible punishment.” (See sec. 110— 4.)

Sec. 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 ¡S' consistent with the apparent legislative construction placed on this section. Sec. 904.01 FS provides, “All capital offenses shall be tried on 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, he 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. (Sec’s. 9 (S) & 10, Art. V) In County Judges’ Courts having elective prosecuting attorneys present statutory law permits prosecutions by indictment (sec. 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 non-capital offenses, at least to the extent that a prosecutor desires to use an information. This addition involved a consideration of whether a non-elected 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 his use of an information.

In all courts not hereinabove mentioned which have elective prosecuting attorneys, trial by indictment or information is consistent with present Florida constitutional law and most of the, statutory law. (See Sec. 10, DR, Fla.Const., sec’s. 904.01 & 904.02 FS; cf. sec. 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 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, prosecutions by information is not recommended because of the aforemen--tioned doubt as to the authority of a non-elected 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 upon 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 when 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 sec. 32.18 FS)

(b) Nature of Indictment or Information. — This provision appears in Rule 7(c) of the Rules of Criminal Procedure for the United States District Courts (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. — Sec. 906.02 FS contains the essentials of this proposal. It was 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 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 contra to sec. 906.02(1) FS 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. Sec. 20, Art. V, of the Constitution of Florida provides i that the style of all process shall be “ ‘The State of Florida’ and all prosecutions shall ^e 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. Sec. 906.02(2) FS 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 Lazo Violated. — This proposal is consistent with various sections of chapter 906 FS 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 definitizing the charge and conserves time in ascertaining the exact nature of the charge. The 1963 Illinois Criminal Code, sec. 111-3 (a) (2) and Federal Rule 7(c) contain similar provisions.

(2) Name of Accused. — The provision concerning the method of stating the name of accused is consistent with the very elaborate Florida Statute, sec. 906.08, which seems unnecessarily long. It is deemed desirable that when a fictitious name is used the necessity therefor should be indicated by allegation.

(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 sec. 111-3(4) of the 1963 Illinois Code of Criminal Procedure.

(4) Joinder of Offenses. — The essence of this proposal is presently found in sec. 906.25 FS and Federal Rule 8(a), and in sec. lll-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 sec. Ill — 4(b) of the Illinois Code of Criminal Procedure. While sec. 906.25 FS 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 sec. 906.18 FS 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 sec. (n), 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) Indorsement and Signature — Indictment.- — The requirement that the indictment be indorsed “A true bill” and be signed by the foreman or acting foreman of the grand jury presently appears in sec. 905.23 FS. 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 sec. lll-3(b) and A.L.I. Model Code of Crim.Proc. sec. 125.

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 (sec.’s 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 that1 require the aforementioned officers to wait upon the grand jury as advisors, as examiners of witnesses, and to draw indictments. (See sec’s 905.16, 905.17, 905.19, 905.22, 27.02, 27.16, 27.21 & 27.22 FS.)

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 sec. 905.17 FS) and has no voice in the decision of whether an indictment is found (see sec. 905.23 FS), a logical question arises concerning the necessity for his signature on the indictment. The provision for the statement is made for the purpose of clarifying the reason for the signature.

(g) Signature and Oath — Information. —Sec. 10, DR, Florida Constitution requires that informations be under oath of the prosecuting1 attorney of the court wherein the information is filed. Sec. 9(5), Art. V, 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 sec. 906.04 FS. This statute has received judicial approval. '(See Champlin v. State, Fla.App., 122 So.2d 412 (1960).) It should be noted here that .the prosecutor’s statement under oath is definitized as to the purpose served by the signature.

(h) Conclusion.- — -A similar provision currently appears in sec. 906.03 FS 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 thet proposal, providing for the disregarding of unnecessary allegations, as surplusage, is ■ similar to sec. 906.24 FS. The part concerned with striking such material is patterned after Federal Rule 7(d). The parts are properly complementary.

(j) Amendment of Information. — Note —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. Juris. Indictments and Informations, see 9 (1958).) . A federal indictment cannot be amended without reassembling .the grand jury; (see Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (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 sec. 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 FS 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) — sec. 906.09.

Proposal (2) — sec. 906.10.

'Proposal (3) — sec. 906.11.

Proposal (4) — sec. 906.12.

Proposal (5) — sec. 906.13.

Proposal (6) — sec. 906.23.

Proposal (7) — sec. 906.17.

(!) Custody and Inspection. — -The proposal is taken verbatim from sec. 906.27. The necessity for specific provision for the custody and inspection of accusatorial writs seems to be proper to include here.

(m) Defendanfs Right to Copy of Indictment or Information. — The procedure contained in this proposal is presently required under sec. 906.28 FS and seems to be unob j ectionable.

(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 sec. 906.27 FS, 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 sec. 906.25 FS. 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.

RULE 1.150 PROCESS UPON INDICTMENT, INFORMATION AND AFFIDAVIT

(a)Capias Issued Upon Felony Charge Bail Specified. — Upon the filing of either an indictment or information charging the commission of a felony, 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 such person. Upon the filing of the indictment or information, the judge shall indicate the amount of bail, if the offense is bailable, in which case an indorsement shall be made on the capias and signed by the judge or clerk, to the following effect: The defendant is to be admitted to bail in the sum of- dollars.

(b) Summons Upon Misdemeanor Charge. — Upon the filing of an indictment, information, or affidavit upon which the defendant is to be tried, charging the commission of a misdemeanor only, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall direct the clerk to issue or shall 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, whereupon a capias shall be issued with the amount of bail endorsed thereon. The summons shall set forth substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the magistrate issuing the summons at a time and place stated therein

(c) Summons When Defendant is Corporation. — Upon the filing of an indictment or information or affidavit 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 dees not appear, a plea of not guilty shall be en