In re Florida Rules of Criminal Procedure (272 So. 2d 65, 1972)

PER CURIAM.

Appended to this order are amended and new rules of The Rules of Criminal Procedure. These rules shall govern all proceedings within their scope after 12:01 a. m., February 1, 1973. All conflicting rules and statutes are hereby superseded; statutes not superseded shall remain in effect as rules promulgated by the Supreme Court. The committee notes appended to each rule are not adopted by the Court.

It is so ordered.

CARLTON, BOYD, McCAIN and DEKLE, JJ., concur.

ADKINS, J., concurs specially with opinion.

DEKLE, J., concurs with ADKINS, J.

ROBERTS, C. J., concurs in part and dissents in part with opinion.

McCAIN and DEKLE, JJ., concur with ROBERTS, C. J.

ERVIN, J., dissents in part and concurs in part with opinion.

ADKINS, Justice

(concurring):

The question of whether a rule relates to substantive law or practice and procedure is one which constantly arises. In State v. Garcia, 229 So.2d 236 (Fla.1969), we said:

“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. See State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966).” (p. 238)

Similar definitions were used in Gaspin v. State, 76 Ga.App. 375, 45 S.E.2d 785 (Ga.App.1947); State v. Rodosta, 173 La. 623, 138 So. 124 (1931); Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897 (1960); State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966); State v. Capaci, 179 La. 462, 154 So. 419 (1934).

Practice and procedure pertains to the legal machinery by which substantive law is made effective. Herberle v. P.R.O. Liquidating Co., 186 So.2d 280 (Fla.App.1st, 1966); State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964); Woodward v. Southern Pac. Co., 35 Cal.App.2d 130, 94 P.2d 1028 (1939); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686 (1953); Jones v. Erie Railroad Co., 106 Ohio St. 408, 140 N.E. 366 (1922); Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963); King v. Schumacher, 32 Cal.App.2d 172, 89 P.2d 466 (1939); and Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948). It has also been said that substantive law creates, defines, adopts and regulates rights, while procedural law prescribes the method of enforcing those rights. Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958); Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555 (1928); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937); State v. District Court, 399 P.2d 583 (Wyo.1965).

Substantive rights are those existing for their own sake and constituting the normal legal order of society, i. e., the rights of life, liberty, property and reputation. Remedial rights arise for the purpose of protecting or enforcing substantive rights. Estate of Gogabashvele v. Kapanadze, 195 Cal.App.2d 503, 16 Cal.Rptr. 77 (1961).

We have said that “practice” means the method of conducting litigation involving rights and corresponding defenses, Skinner v. City of Eustis, 147 Fla. 22, 2 So.2d 116 (1941), or the manner in which the power to adjudicate or determine is exercised, Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930). It has also been said that “practice” is the method of conducting litigation. Dadswell v. State ex rel. Phillips, 186 So.2d 274 (Fla.App.2d 1966).

The entire area of substance and procedure may be described as a “twilight zone” and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made. From extensive research, I have gleaned the following general tests as to what may be encompassed by the term “practice and procedure.”

Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.

Examination of many authorities leads me to conclude that substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property. As to the term “procedure,” I conceive it to include the administration of the remedies available in cases of invasion of primary rights of individuals. The term “rules of practice and procedure” includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution. See Kellman v. Stoltz, 1 F.R.D. 726 (N.D., Iowa, 1941).

The Revised Criminal Rules of Procedure describe the machinery by which substantive rights are protected and enforced. They are within the purview of the term “practice and procedure” as used in Fla. Const., art. V, § 3, F.S.A.

DEKLE, J., concurs.

ROBERTS, Chief Justice.

I agree with that part of the opinion which defines the difference between “practice and procedure” and substantive law.

ROBERTS, Chief Justice

(concurring in part and dissenting in part).

I concur in that part of the order approving all of the attached Criminal Rules of Procedure except that I can not approve Rule 3.440, requiring a unanimous jury verdict. Specifically, this rule provides:

“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 foreman if an agreement has been reached on a verdict. If the foreman answers in the affirmative, the judge shall call upon him 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 be 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.” e. s.

On May 20, 1968, the Supreme Court of the United States in Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491, held that the Sixth Amendment guarantee of a jury trial was made applicable to the states by the Fourteenth Amendment. However, in the recent case of Apodaca et al. v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 the Supreme lourt of the United States went a step further and held that the Sixth Amendment guarantee of a jury trial made applicable to the states by Duncan, supra, does not require that the jury’s vote be unanimous. Of particular note, the Supreme Court of the United States opined as follows:

“Our inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, 399 U.S. 78, at 99-100, 90 S.Ct. 1893, at 1905, 26 L.Ed.2d 446. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a ‘safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.’ Duncan v. Louisiana, supra, 391 U.S. at 156, 88 S.Ct. 1444, at 1451. ‘Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . ’ Williams v. Florida, supra, at 100, 90 S.Ct. 1893, at 1906. A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant’s guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served.

“Petitioners nevertheless argue that unanimity serves other purposes constitutionally essential to the continued operation of the jury system. Their principal contention is that a Sixth Amendment ‘jury trial’ made mandatory on the States by virtue of the Due Process Clause of the Fourteenth Amendment, Duncan v. Louisiana, supra, should be held to require a unanimous jury verdict in order to give substance to the reasonable doubt standard otherwise mandated by the Due Process Clause. See In re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

“We are quite sure, however, that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable doubt standard developed separately from both the jury trial and the unanimous verdict. As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted. See id., at 361, 90 S.Ct. at 1070. And in that case, which held such a burden of proof to be constitutionally required, the Court purported to draw no support from the Sixth Amendment.

“Petitioners’ argument that the Sixth Amendment requires jury unanimity in order to give effect to the reasonable doubt standard thus founders on the fact that the Sixth Amendment does not require proof beyond a reasonable doubt at all. The reasonable doubt argument is rooted, in effect, in due process and has been rejected in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152.”

With more and more people being entitled to jury trials, with more and more people demanding jury trials for such minor offenses as parking by fire hydrants, on up to more serious crimes, and with the necessary increased compensation to jurors, a substantial load has been imposed on the taxpayers. Further, a heavy burden on Florida citizens in general is developing with the requirement that the jury unanimously agree as to their verdict. Not infrequently, it becomes necessary to try cases a second or even a third time before the jury is able to reach a unanimous verdict because of the stubbornness of one juror.

I know of no other form of parliamentary body which requires a unanimous vote. A grand jury indicts on two-thirds vote. Laws are promulgated by the legislature on a bare majority. Our District Courts of Appeal decide cases by a vote of two to one; the State Supreme Court decides a case by a vote of four to three; the Supreme Court of the United States often decides cases on a five to four vote. Our largest corporations operate by a mere majority of directors. But, still we adhere to an old tradition, without any legal foundation in the history of this nation known to me, that we must have unanimous verdicts. The Supreme Court of the United States in Apodaca, supra, carefully set out the absence of any such foundation with the following language,

“Like the requirement that juries consist of 12 men, the requirement of unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century. But, as we observed in Williams, ‘the relevant constitutional history casts considerable doubt on the easy assumption . that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.’ Id., 399 U.S. at 92-93, 90 S.Ct. at 1902. The most salient fact in the scanty history of the Sixth Amendment, which we reviewed in full in Williams, is that, as it was introduced by James Madison in the House of Representatives, the proposed Amendment provided for trial

‘by an impartial jury of the freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . . ’ 1 Annuals of

Cong. 435 (1789).

Although it passed the House with little alteration, this proposal ran into considerable opposition in the Senate, particularly with regard to the vicinage requirement of the House version. The draft of the proposed Amendment was returned to the House in considerably altered form, and a conference committee was appointed. That committee refused to accept not only the original House language but also an alternate suggestion by the House conferees that juries be defined as possessing ‘the accustomed requisites.’ Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 1 Letters and Other Writings of James Madison 492-493 (1865). Instead, the Amendment that ultimately emerged from the committee and then from Congress and the States provided only for trial.

‘by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . . ’

“As we observed in Williams, one can draw conflicting inferences from this legislative history. One possible inference is that Congress eliminated references to unanimity and to the other ‘accustomed requisites’ of the jury because those requisites were thought already to be implicit in the very concept of jury. A contrary explanation, which we found in Williams to be the more plausible, is that the deletion was intended to have some substantive effect. See 399 U.S., at 96-97, 90 S.Ct. at 1903-1904. Surely one fact that is absolutely clear from this history is that, after a proposal had been made to specify precisely which of the common-law requisites of the jury were to be preserved by the Constitution, the Framers explicitly rejected the proposal and instead left such specification to the future. As in Williams, we must accordingly consider what is meant by the concept 'jury’ and determine whether a feature commonly associated with it is constitutionally required. And, as in Williams, our inability to divine ‘the intent of the Framers’ when they eliminated references to the ‘accustomed requisites’ requires that in determining what is meant by a jury we must turn to other than purely historical considerations.”

We cannot escape the fact that numerous mistrials are a contributing factor to the greatest crime wave ever existing in this country.

In my opinion, certainly in misdemeanor cases where the punishment is light, a jury should be able to reach a verdict with an affirmative vote of five out of six jurors.

Therefore, I would adopt a rule that in misdemeanors providing for punishment of six months or less or a fine of $500 or less, five out of six jurors could reach a verdict. I have carefully read the Magna Charta, the Constitution of the United States and the Constitution of the State of Florida, and find nothing inconsistent in any of them with the views hereinabove expressed.

McCAIN and DEKLE, JJ., concur.

. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

ERVIN, Justice

(dissenting in part and concurring in part):

I concur in the adoption of the foregoing rules with the exceptions noted below.

RULE 3.130: PRETRIAL RELEASE

I am unable to support Rule 3.130 which will continue the current discriminatory bail bond system. I am deeply distressed by this Court’s rejection of the “pretrial release” rule unanimously recommended by our Special Advisory Committee.

In its “Note” following the proposed pretrial release rule, the Committee said:

“This rule replaces Rule 1.130, Florida Rules of Criminal Procedure, entitled ‘Bail.’ The existing rule placed almost complete emphasis on money bail rather than less onerous conditions of release. The proposed rule presumes that if the defendant is likely to appear, there is no need for an arrest, or, if an arrest has occurred, the defendant should be released on his own recognizance or promise to appear.”

The Rule adopted by this Court will perpetuate that money-bail emphasis; I am unwilling to further support Florida’s archaic bail bond system.

The inequities in the bail bond system are well described in the Introduction to the American Bar Association’s Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release:

“The Bail System as it now generally exists is unsatisfactory from either the public’s or the defendant’s point of view. Its very nature requires the practically impossible task of translating risk of flight into dollars and cents and even its basic premise — that risk of financial loss is necessary to prevent defendants from fleeing prosecution — is itself of doubtful validity. The requirement that virtually every defendant must post bail causes discrimination against defendants who are poor and imposes personal hardship on them, their families and on the public which must bear the cost of their detention and frequently support their dependents on welfare. Moreover, bail is generally set in such a routinely haphazard fashion that what should be an informed, individualized decision is in fact a largely mechanical one in which the name of the charge, rather than all the facts about the defendant, dictates the amount of bail. See generally Beeley, The Bail System in Chicago (1927); Freed & Wald, Bail in the United States: 1964 (hereafter cited as Bail in the United States); Foote, The Administration of Bail in New York City, 106 U.Pa.L.Rev. 693 (1958); Ares, Rankin & Sturz, The Manhattan Bail Project, 38 N.Y.U.L.Rev. 67 (1963) (hereafter cited as Manhattan Bail Project).

“Recent criticism of bail has focused principally on the fact that it inevitably discriminates against the poor. Of a sample of New York defendants studied in 1957, twenty-five percent of all defendants could not make $500 bail, forty-five percent were unable to raise $1,500 and sixty-three percent could not make it at $2,500. Foote, supra at 707. A later study in New York demonstrated the persistence of the discrimination. Manhattan Bail Project, supra at 79. The D. C. Bar Association’s Junior Bar Section made similar findings in its Bail System of the District of Columbia 2 (1963). Seventeen percent of the defendants whose cases were reviewed could not make $500, forty percent failed at $1,000 and at $2,500 bail, seventy-eight percent stayed in jail. A four-district survey in the federal system revealed that only when bail was set very low did a substantial number of defendants succeed in gaining pretrial release. Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice 66 (1963) ....

“Bail is usually set at the defendant’s first appearance before a magistrate or justice of the peace. In state courts, more often than not defense counsel has not yet entered the picture at this point. But even when he has, no particular effort is usually made to develop fully the facts that may bear on the question of bail. No systematic effort is made to tailor the decision to the condition and background of the individual defendant. See generally Note, Compelling Appearance in Court: Administration of Bail in Philadelphia, 102 U.Pa.L.Rev. 1031, 1036-1043 (1954).

“Recent experimental studies have demonstrated that if a quick but careful inquiry is made into the facts concerning the defendant’s roots in the community a vastly more rational bail decision can be made. More dramatically, a systematic development of the facts will show that in a large number of cases defendants safely can be released without bail. The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial Administration at New York University School of Law, found that about sixty-five percent of all felony defendants interviewed could be recommended for release without bail. Of 2,195 defendants released in this way less than one percent failed to appear when required. Bail ';n the United States 62. The D. C. Bail Project secured release without bail for 2,166 defendants in two and one-half years and ninety-seven percent returned without difficulty. Mol-leur, Bail Reform in the Nation’s Capital 31 (1966). In short, risk of financial loss is an insubstantial deterrent to flight for a large number of defendants whose ties to the community are sufficient to bring them to court.

“The consequences of pretrial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defense. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. Moreover, there is strong evidence that a defendant's failure to secure pretrial release has an adverse effect on the outcome of his case. Studies in Philadelphia, the District of Columbia and New York all indicate that the conviction rate for jailed defendants materially exceeds that of bailed defendants. For example, of defendants charged with grand larceny forty-three percent of those on bail pending trial were convicted while seventy-two percent of those in jail were convicted. Manhattan Bail Project, supra at 84; Foote, The Coming Constitutional Crisis in Bail: II, 113 U.Pa.L.Rev. 1125, 1137-1151 (1965). In terms of the sentence imposed on convicted persons, the bailed defendant is far more likely to receive probation; his jailed counterpart, having been unable to demonstrate his reliability under supervision, more frequently goes to prison. The Bail System of the District of Columbia 40. Of course some of the factors, such as strong evidence of guilt or a long criminal record, that lead to high bail and hence detention, will also cause a court to find the defendant guilty and to sentence him to prison rather than to give him probation. But a recent study which attempted to hold other causative factors constant indicates that there is a strong relationship between detention and unfavorable disposition. Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. 641 (1964).

“The public also suffers when defendants are unnecessarily detained. In 1962, defendants detained pending trial in New York City accounted for 1,775,778 jail days at a cost of $6.25 per day, or a total cost of over $10,000,000. Other cities report similar figures. People who cannot make bail are detained from 30 days to as much as eight months awaiting trial, at great cost to themselves and to the public that must maintain them as well as frequently bear the cost of welfare payments to their families. See generally Bail in the United States.”

The Advisory Committee’s rule attempted to eliminate these unjust results of the bail bond system by guaranteeing that all persons, regardless of financial status, would not needlessly be detained pending their appearance when detention would serve neither the ends of justice nor the public interest. It created a presumption that an accused is to be released without bail unless it is shown that there is reason to believe that his release should be conditioned in some fashion.

If conditions of release were found to be necessary, the Committee’s rule provided that “the judicial officer shall impose the least onerous condition reasonably likely to assure the defendant’s appearance in court.” Money bail was a last resort, and even fully secured bail was to be required only in extreme cases where no other condition would satisfactorily guarantee the defendant’s appearance. In each instance where a judicial officer or his authorized deputy, or law officer acting under his authority determined a summons, the defendant’s promise to appear, or personal recognizance to be insufficient to assure the defendant’s presence, the proposed rule required that the judicial officer give reasons for the imposition of conditions. In determining what conditions of release would reasonably insure the appearance of the defendant, the Committee recommended that the judicial officer take into account factors such as the length of his residence in the community and his past residences, his employment status and history, and his financial condition, his family ties and relationships, his reputation, character, and mental condition; his prior criminal record, including any record of prior release pending trial and record of appearance while released, the identity of responsible members of the community who would vouch for his reliability and agree to assist him in making required appearances, the nature of the offense charged, and any other factors indicating his ties to the community or bearing on the risk of willful failure to appear.

The Committee’s rule was an excellent attempt at eliminating from our legal system one more means of discriminating against the poor. It should have been approved.

Incidentally, the rejection of the entire proposed rule on pretrial release means the rejection of rules providing for the mandatory issuance of summons for misdemeanors (with exceptions) and mandatory issuance of summons when the defendant is a corporation. The proposed rule, in substance, incorporated existing Rule 3.150, Florida Rules of Criminal Procedure. By its rejection of the proposed rule, the Court has unwittingly omitted Rule 3.150.

RULE 3.210: INCOMPETENTS

Finally, I feel Rule 3.210 relating to the civil commitment of defendants who are incompetent to stand trial contains a major defect. Under the Supreme Court of the United States’ recent holding in Jackson v. Indiana, 1972, 406 U.S. 715, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435,

“ . . .a person charged by a State with a criminal offense who is committed [to a psychiatric institution] solely on account of his incapacity to proceed to trial cannot be held more them the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” (Emphasis supplied.)

Rule 3.210(a) of the majority’s Revision of the Florida Rules of Criminal Procedure provides in pertinent part:

“(3) If the Court decides that the defendant is insane, it shall commit him or her to the [proper institution.] The order of commitment shall require that the proper officer of such institution furnish the court a written report at least every six months, stating (1) whether there is a substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future and, if so, (2) whether progress toward that goal is being made. .

“(5) If at any time after such commitment the court decides, after hearing, (1) that there is no substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future or (2) that no progress is being made toward that goal, it shall enter an order accordingly and shall find and adjudge the defendant not guilty by reason of insanity and forthwith direct the institution of civil proceedings for the commitment of the defendant. The defendant shall remain in custody until determination of the civil proceedings.” (Emphasis supplied.)

While this Rule guarantees biannual reports on an incompetent defendant’s mental progress, it does not insure him either release or a Section 394.22 Florida Statutes, F.S.A., civil commitment proceeding within a reasonable time after his commitment. For this reason, I am unable to approve it.

REVISION OF FLORIDA CRIMINAL PROCEDURE RULES ADOPTED

DECEMBER 6, 1972

BY

THE SUPREME COURT OF FLORIDA

TABLE OF CONTENTS

FLORIDA CRIMINAL PROCEDURE RULES

I.SCOPE, PURPOSE AND CONSTRUCTION

Rule 3.010. Scope

3.020. Purpose and Construction

3.025. Court Administration

II.GENERAL PROVISIONS

3.030. Service of Pleadings and Papers

3.040. Computation of Time

3.050. Enlargement of Time

3.060. Time for Service of Motions and Notice of Hearing

3.070. Additional Time after Service by Mail

3.080. Pleadings to be Signed by Attorney

3.090. Pleadings to be Signed by Unrepresented Defendant

3.100. Attorney not to be Surety

3.110. Televising, Photographing, Radio Broadcasting of Trial

3.111. Providing Counsel to Indigents

3.115. Duties of State Attorney; Criminal Intake

III. PRELIMINARY PROCEEDINGS

3.120. Committing Magistrate

3.121. Arrest Warrants

3.130. Pre-Trial Release

3.131. Preliminary Hearing

3.140. Indictments, Informations

3.150. Joinder of Offenses and Defendants

3.151. Consolidation of Related Offenses

3.152. Severance of Offenses and Defendants

3.153. Timeliness of Defendant’s Motion; Waiver

IV. ARRAIGNMENT AND PLEAS

3.160. Arraignment

3.170. Pleas

3.171. Plea Discussions and Agreements

3.180. Presence of Defendant

V.PRE-TRIAL MOTIONS AND DEFENSES

3.190. Pre-Trial Motions

3.191. Speedy Trial

3.200. Notice of Alibi

3.210. Insanity

VI.DISCOVERY

3.220. Discovery

VII.DISQUALIFICATION AND SUBSTITUTION OF JUDGE

3.230. Disqualification of Judge

3.231. Substitution of Judge

VIII.CHANGE OF VENUE

3.240. Change of Venue

IX. THE TRIAL

3.250. Accused as Witness

3.251. Right to Trial by Jury

3.260. Waiver of Jury Trial

3.270. Number of Jurors

3.280. Alternate Jurors

3.281. List of Prospective Jurors

3.290. Challenge to Panel

3.300. Voir Dire Examination, Oath and Excusing of Member

3.310. Time for Challenge

3.320. Manner of Challenge

3.330. Determination of Challenge for Cause

3.340. Effect of Sustaining Challenge

3.350. Peremptory Challenges

3.360. Oath of Trial Jurors

X. CONDUCT OF TRIAL; THE JURY INSTRUCTIONS

3.370. Regulation and Separation of Jurors

3.380. Motion for Judgment of Acquittal

3.390. Jury Instructions

3.391. Selection of Foreman of Jury

3.400. Materials to the jury room

3.410. Jury Request to Review Evidence or for Additional Instructions

3.420. Recall of Jury for Additional Instructions

3.430. Jury Not Recallable to Hear Additional Evidence

XI.THE VERDICT

3.440. Rendition of Verdict; Reception and Recording

3.450. Polling the Jury

3.451. Judicial Comment on Verdict

3.460. Acquittal for Cause of Insanity

3.470. Proceedings on Sealed Verdict

3.490. Determination of Degree of Offense

3.500. Verdict of Guilty Where More Than One Count

3.510. Conviction of Attempt; Lesser Included Offense

3.520. Verdict in Case of Joint Defendants

3.530. Reconsideration of Ambiguous or Defective Verdict

3.540. When Verdict May be Rendered

XI.THE VERDICT — Continued

3.550. Disposition of Defendant

3.560. Discharge of Jurors

3.570. Irregularity in Rendition, Reception and Recording of Verdict

XII.POST-TRIAL MOTIONS

3.580. Court May Grant New Trial

3.590. Time for and Method of Making Motions; Procedure ; Custody Pending Hearing

3.600. Grounds for New Trial

3.610. Motion for Arrest of Judgment; Grounds

3.620. When Evidence Sustains Only Conviction of Lesser Offense

3.630. Sentence Before or After Motion Filed; Evidence at Hearing

3.640. Effect of Granting New Trial

XIII. JUDGMENT

3.650. Judgment Defined

3.670. Rendition of Judgment

3.680. Judgment on Informal Verdict

3.690. Judgment of Not Guilty; Defendant Discharged and Sureties Exonerated

3.691. Post-Trial Release

XIV. SENTENCE

3.700. Sentence Defined; Pronouncement and Entry; Sentencing Judge

3.710. Presentence Report

3.711. Presentence Report: When Prepared

3.712. Presentence Report: Disclosure

3.713. Presentence Investigation Disclosure: Parties

3.720. Sentencing Hearing

3.721. Record of the Proceedings

3.722. Concurrent and Consecutive Sentences

3.730. Issuance of Capias Where Necessary to Bring Defendant Before Court

3.740. Procedure When Insanity is Alleged as Cause for Not Pronouncing Sentence

3.750. Procedure When Pardon is Alleged as Cause for Not Pronouncing Sentence

3.760. Procedure When Non-Identity is Alleged as Cause for Not Pronouncing Sentence

3.770. Procedure When Pregnancy is Alleged Cause for Not Pronouncing Sentence

3.790. Probation

3.800. Correction and Reduction of Sentences

XV.EXECUTION OF SENTENCE

3.810. Commitment of Defendant; Duty of Sheriff

3.820. Habeas Corpus; Custody Pending Appeal

XVI.CRIMINAL CONTEMPT

3.830. Direct Criminal Contempt

3.840. Indirect Criminal Contempt

XVII.POST-CONVICTION RELIEF

3.850. Motion to Vacate, Set Aside or Correct Sentence; Hearing; Appeal

XVIII. FORMS

3.985. Standard Jury Instructions

I. SCOPE, PURPOSE AND CONSTRUCTION

3.010. SCOPE.

These rules shall govern the procedure in all criminal proceedings in State courts including proceedings involving direct and indirect criminal contempt, including proceedings under Rule 3.850 hereof, and including 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 may be cited as the Rules of Criminal Procedure and abbreviated as RCrP.

Committee Note: Amended to provide for applicability of Rules to Vehicular Traffic Offenses, when made so by the Traffic Court Rules.

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 Note: Same as prior rule.

3.025. COURT ADMINISTRATION.

(a) Purpose of Rule. The purpose of this rule is to secure the just, speedy and efficient disposition of criminal cases and administration of the court’s business. This rule shall apply to all courts having jurisdiction to try criminal cases and to all criminal proceedings.

(b) Administration. Administrative responsibilities shall be as provided by Rule 1.020, Court Administration, Florida Rules of Civil Procedure.

(c) Court Reporters. The fees to be allowed court reporters shall be in the amounts as provided by Rule 1.035, Florida Rules of Civil Procedure.

Committee Note: Same as prior rule.

II. GENERAL PROVISIONS

3.030. SERVICE OF PLEADINGS AND PAPERS.

(a) Service; When Required: Every pleading subsequent to the initial indictment or information 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 nol 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 conspicious 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: Same as prior rule; (a) amended by deleting reference to trial on affidavit.

3.040. COMPUTATION OF TIME.

In computing any period of time prescribed or allowed by these rules, except Rule 3.130, by order of court, or by any applicable statute, the day of the act or event from which the designated period of times begins to run is not to be included. The last day of the period so computed shall be counted, unless it is 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: Same as prior 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 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: Same as prior 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 Note: Same as prior rule.

3.070. 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 or other 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: Same as prior rule.

3.080. 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: Same as prior rule.

3.090. 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: Same as prior rule.

3.100. 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.

Committee Note: Reference to sanction of contempt deleted. The imposition of sanction is within the inherent power of the court and for this reason the committee felt it inappropriate to particularize the sanction to be imposed.

3.110. 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: Same as prior 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 he is formally charged with an offense, or as soon as feasible after custodial restraint or upon his first appearance before a committing magistrate, whichever occurs earliest.

(b) Cases Applicable:

(1) Counsel shall be provided to indigent persons in all prosecutions for offenses punishable by imprisonment (or by incarceration in a juvenile corrections institution) including appeals from the conviction thereof. 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, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned in the event he is convicted.

(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 which 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 upon his request provided that person shall defray that portion of the cost of such representation and the reasonable costs of investigation as he is able to without substantial hardship to himself or his family, as directed by the court.

(4) “Indigent” as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himself or his family; “partially indigent” as used herein 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 himself or his family.

(c) Duty of Booking Officer:

In addition to any other duty, the officer who commits a defendant to custody has the following duties:

(1)He shall immediately advise the defendant :

(1) of his right to counsel;

(ii) 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 he cannot afford counsel, said officer shall immediately and effectively place said defendant in communication with the (office of) Public Defender of the circuit in which the arrest was made.

(3) If the defendant indicates he has an attorney or is able to retain an attorney, the officer shall immediately and effectively place said defendant in communication with his attorney or the Lawyer Referral Service of the local bar association.

(4)The Public Defender of each Judicial Circuit may upon being contacted by, or on behalf of a defendant who is, or represents himself to be indigent as defined by law, forthwith interview said defendant and

(i) If the defendant is in custody and reasonably appears to be indigent, the Public Defender shall tender to him such advice as is indicated by the facts of the case; seek the set-ing of a reasonable bail and otherwise represent such defendant pending a formal judicial determination of indigency.

(ii) If the defendant is at liberty on bail or otherwise not in custody, the Public Defender shall elicit only such information from the defendant as 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 said defendant.

(d) Waiver of Counsel:

(1) The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understanding^ has been made.

(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

(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 two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.

(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.

Committee Note: 3.111. 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 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 when 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 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 upon 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 himself to contact a lawyer.

(d) From Standard 7.2 and the commentaries thereunder.

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 proceeding. This rule shall take effect at 11:59 p. m., Eastern Standard Time, January 1, 1973.

III. PRELIMINARY PROCEEDINGS

3.120. COMMITTING MAGISTRATE.

Each state and county judge is a committing magistrate 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 which show that such person violated a criminal law of this State within the jurisdiction of the magistrate to whom the complaint is presented. The magistrate may take testimony under oath to determine if there is reasonable ground to believe the complaint is true. The magistrate 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 him from custody or from any undertaking to appear. The magistrate may authorize the clerk to issue a summons.

Committee Note: Substantially same as former rule. Altered to incorporate the provision for testimony under oath formerly contained in Rule 3.121(a), and authorizes the execution of the affidavit before a notary or other persons authorized to administer oaths.

3.121. ARREST WARRANT.

(a) 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 magistrate;

(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 where issued;

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

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

(b) 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) of existing 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).

Former Rule 3.122 transferred to 3.131 in order to present a more accurate chronology-

RULE 3.130. PRE-TRIAL RELEASE.

(a) Offenses Less Than Capital. All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. After conviction bail may be granted in the discretion of either the trial or appellate court.

(b) First Appearance.

(1) Prompt First Appearance.

Except when he has been previously released in a lawful manner, every arrested person shall be taken before a judicial officer within twenty-four (24) hours of his arrest. The chief judge of the circuit for each county within the circuit shall designate one or more judicial officers from the circuit court, or county court, to be available for first appearance and proceedings.

(2) Advice to Defendant.

Upon the defendant’s first appearance the magistrate shall immediately inform him of the charge and provide him with a copy of the complaint. The magistrate shall also adequately advise the defendant as follows:

(i) That he is not required to say anything, and that anything he says may be used against him;

(ii) If he is as yet unrepresented, that he has a right to counsel, and, if he is financially unable to afford counsel, that counsel forthwith will be appointed;

(iii) That he has a right to communicate with his counsel, his family, or his friends, and that, if necessary, reasonable means will be provided to enable him to do so.

(3) Counsel for the Defendant.

(i) Appointed counsel. Where practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether he desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, he shall immediately appoint counsel. This determination must be made and, where required, counsel appointed no later than the time of the first appearance, and prior to 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 magistrate.

(ii) Retained counsel. Where the defendant has employed, or is financially able and desires to employ, counsel to represent him at first appearance, the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the first appearance hearing for such purpose. The magistrate shall also, upon 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 magistrate may appoint counsel to represent the defendant for the limited purpose of the first appearance hearing.

(iii) No further steps in the proceedings should be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.

(iv) Waiver of counsel. The defendant may waive his right to counsel at first appearance and if he does so, such waiver, containing an explanation of his 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.

(4) Hearing at First Appearance.

The purpose of bail is to insure the defendant’s appearance. The judge shall, therefore, at the defendant’s first appearance, consider all available relevant factors to determine whether bail is necessary to assure the defendant’s appearance and, if so, the amount of bail. The judge may, in his discretion, release a defendant on his own recognizance.

(c) Subsequent Application for Bail or Reduction of Bail-.

(1) 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.

(2) In the 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.

(d) 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.

(e) 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 or information 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.

(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 or information filed 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.

(k) Issuance of Capias; Bail Specified: Upon 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 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 endorsement 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.

(l) Summons Upon Misdemeanor Charge:

When a complaint is filed charging the commission of a misdemeanor only and the magistrate 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 magistrate or judge shall direct the clerk to issue a summons instead of a capias unless the magistrate or 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 o