Florida Bar (345 So. 2d 655, 1977)

PER CURIAM.

Appended to this order are amended and new Rules of Juvenile Procedure. These rules shall govern all proceedings within their scope after 12:01 a. m., July 1. 1977. All conflicting rules and statutes are hereby superseded; statutes not superseded shall remain in effect as rules promulgated by the Supreme Court.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.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur..

I. Introductory Rules

RULE 8.010. SCOPE AND PURPOSE

These rules shall govern the procedures in the Circuit Court in the exercise of its jurisdiction over children alleged to be or adjudicated delinquent, dependent, or ungovernable as defined in the Florida Statutes.

They are intended to provide a just, speedy, and efficient determination of the procedures covered by them and shall be construed to secure simplicity in procedure and fairness in administration.

They shall be known as the Florida Rules of Juvenile Procedure, and may be cited as Fla.R.Juv.P.

COMMITTEE NOTE

Language referring to “child in need of supervision” has been changed to conform to the changes in the law enacted by the 1975 legislature.

RULE 8.020. ADMINISTRATION

Administrative responsibilities shall be as provided by Rule 1.020 of the Florida Rules of Civil Procedure.

COMMITTEE NOTE

Section 8.020, Fla.Trans. Rule 11, Intake, provides for the procedures of an agency of the executive branch. It is now covered by statute and was therefore deleted. The same reasoning required that Section 8.040, Fla.Trans. Rule 11, be deleted.

Although, by statute, the jurisdiction of the court attaches when a child is taken into custody or when a summons is served, the committee decided we should not include any rules affecting the intake process. Intake is a function of the Executive Branch. Its procedures, covered by Section 8.020, Fla.Trans. Rule 11, are now included in the statute. Paragraph (5) has been added under rule 8.110 relating to the petition.

II. PRELIMINARY PROCEEDINGS

RULE 8.030. ORDERING CHILDREN INTO CUSTODY

If a verified petition has been filed, or, if prior to the filing of a petition, an affidavit is filed with the court, either of which alleges facts which under existing law are sufficient to authorize that a child be taken into custody, the court may issue an order to a person, authorized to do so, directing that the child be taken into custody. The order shall:

(a) Be in writing;

(b) Specify the name and address of the child, or if unknown, designate him by any name or description by which he can be identified with reasonable certainty;

(c) Specify the age and sex of the child; if his age is unknown, that he is believed to be of an age subject to the jurisdiction of the circuit court as a juvenile case;

(d) State the reasons why the child is being taken into custody;

(e) State that the child be brought immediately before the court or be taken to a place of detention designated by the court to be detained pending a detention hearing;

(f) State the date when issued, and the county and court where issued;

(g)Be signed by the judge with the title of his office.

COMMITTEE NOTE

Rule 8.030 provides that the court may issue an order to take a child into custody either after a verified petition has been filed or prior to the filing of such a petition if an affidavit is filed alleging facts which under existing law are sufficient to authorize this action. It then sets out what the order should contain. Substantive material deleted.

RULE 8.040. DETENTION PETITION AND ORDER

No child taken into custody, whether by an order of court or as otherwise provided by law, who has not been adjudicated dependent, delinquent, or defined as dependent or delinquent after an adjudication of ungovernable as a result of the incident for which he is taken into custody, shall be detained longer than twenty-four hours, excluding Sundays and legal holidays, unless a detention order so directing is made by the judge upon a petition therefor and following a hearing.

(a) The detention petition shall:

(1) Be in writing and be filed with the court;

(2) State the name and address of the child, or if unknown, designate him by any name or description by which he can be identified with reasonable certainty;

(3) State the age and sex of the child; or if his age is unknown, that he is believed to be of an age which will make him subject to the procedures covered by these rules;

(4) State the reasons why the child is in custody and needs to be detained;

(5) Recommend the place where the child is to be detained or the agency to be responsible for the detention;

(6) Be signed by an authorized agent of the Department of Health and Rehabilitative Services, or by the state attorney or assistant state attorney.

(b) The detention order shall:

(1) Be in writing;

(2) State the name and address of the child, or if unknown, designate him by any name or description by which he can be identified with reasonable certainty;

(3) State the age and sex of the child; or if his age is unknown, that he is believed to be of an age which will make him subject to the procedures covered by these rules;

(4) Make a finding that the child shall be held in detention or shelter care stating the reasons therefor;

(5) Make a finding that probable cause exists that the child is delinquent, ungovernable, or dependent, or that such a finding can not be made at this time and that the case is continued for such a determination to a time certain within seventy-two (72) hours from the time the child is taken into custody unless this time is extended by the court for good cause shown for not longer than an additional twenty-four (24) hours.

(6) Designate the place where the child is to be detained or the person or agency that will be responsible for his detention along with any special conditions found to be necessary;

(7) State the date and time when issued, and the county and court where issued, together with the date and time the child was taken into custody;

(8) Be signed by the judge with the title of his office.

COMMITTEE NOTE

§ 39.03(7)(a), Fla.Stat. (1975), reads that no child shall be detained longer than twenty-four (24) hours exclusive of Sunday and legal holidays unless a detention order is made by the judge. Fla.Trans. Rule 11 changed this to forty-eight (48) hours exclusive of Sundays and legal holidays. The rule has been changed so as to conform to the provision of the statute. State v. Golden (Case No. 46,321, opinion filed February 26, 1976).

(a)Provides for a detention petition setting out what it should contain to provide the court with the basic information necessary to make a decision.

(b)(5) Provides for a finding of probable cause at the detention hearing with extension of time for good cause. See also 8.050(f)(2) and (g).

RULE 8.050. DETENTION HEARING

(a) When required. No detention order, provided for in Rule 8.040, shall be entered without a hearing at which all parties shall have an opportunity to be heard on the necessity for the child’s being held in detention or shelter care unless the parent(s) or custodians cannot be found and the court finds the child is so young that to have him appear before the court would be of no value, or his mental or physical condition is such that a court appearance is not in his best interest.

(b) Time. The detention hearing shall be within twenty-four (24) hours after the child is taken into custody excluding Sundays and legal holidays.

(c) Place. The detention hearing in delinquency cases may be held in the county where the offense occurred or in the county where the child is taken into custody, if the court in the county where the detention facility is located consents thereto. In the absence of such consent it shall be held in the county where the detention facility is located. The detention hearing in cases of ungovernable children and in dependency cases may be held in the county in which the child is taken into custody, if the court in the county in which the detention facility is located consents thereto. In the absence of such consent it shall be held in the county where the detention facility is located.

(d) Notice. The intake officer shall make a diligent effort to notify the parent(s) or custodian of the child at the time and place of the hearing. The notice may be by the most expeditious method available. Failure of notice to parents or custodians or their non-attendance at the hearing shall not invalidate the proceeding or the order of detention.

(e) Presence of the child. The intake officer shall arrange for the child to be present unless the court finds the child is so young that to have him appear before the court would be of no value, or that the child’s mental or physical condition is such that a court appearance is not in his best interest.

(f) Issues. At this hearing the court shall determine the following:

(1) The need for detention or shelter care according to the criteria provided by law. In making this determination in addition to the sworn testimony of available witnesses all relevant and material evidence helpful in determining the specific issue, including oral and written reports, may be relied upon to the extent of its probative value, even though it would not be competent at an adjudicatory hearing.

(2) The existence of probable cause to believe the child is delinquent, dependent or ungovernable. This issue shall be determined in a nonadversary proceeding. The court shall apply the standard of proof necessary for an arrest warrant and its finding may be based upon a sworn complaint, affidavit, deposition under oath, or, if necessary, upon testimony under oath properly recorded.

(g) Probable cause. If the court finds that such probable cause exists, it shall enter an order making such a finding and may, if other statutory needs of detention exist, retain the child in detention or shelter care. If the court finds that such probable cause does not exist, it shall forthwith release the child from detention or shelter care. If the court finds that one or more of the statutory needs of detention exist, but is unable to make a finding on the existence of probable cause it may retain the child in detention or shelter care and continue the hearing for the purpose of determining the existence of probable cause to a time within seventy-two (72) hours of the time the child was taken into custody. The court may, on a showing of good cause, continue the hearing a second time for not more than twenty-four (24) hours beyond the seventy-two (72) hour period. Release of the child based on no probable cause existing shall not prohibit the filing of a petition and further proceedings thereunder, but shall prohibit the holding of the child in detention or shelter care prior to an adjudicatory hearing.

(h) Advice of rights. At the detention hearing the persons present shall be advised of the purpose of the hearing and

(1) In cases of delinquency and in cases in which it is alleged that a child previously adjudicated ungovernable is again ungovernable the child shall be advised of:

(i) The nature of the charge for which he was taken into custody.

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

(iii) That he is not required to say anything and that anything he says may be used against him.

(iv) If his parent, custodian, or counsel is not present, that he has a right to communicate with them and that, if necessary, reasonable means will be provided for him to do so.

(v) The reason continued detention is requested.

(2) In cases of dependency, the parent(s), or custodian, and the child, if he is of an age to understand, shall be advised of:

(i) The reason for his being in custody.

(ii) The reason continued' detention is requested.

COMMITTEE NOTE

(a) The committee desires to avoid a multiplicity of hearings and to provide for the most expeditious handling of cases consistent with due process. It is the belief of the committee that in most cases, since the Gerstein decision, the evidence necessary for the court to determine that probable cause does or does not exist will be before the court at the time of the detention hearing. When this is true that finding should be made at that time, but when the evidence is not available, for good cause, provision must be made for a continuance.

There appears to be little reason for the provision for an adversary preliminary hearing in view of Rule 8.040(c) and 8.110(e).

(c) Added to clarify where the hearing should take place.

(d) Requires that a diligent effort to notify parents or guardians be made rather than an “endeavor”.

(f) Substantive material deleted. Adds issue or probable cause to be determined at detention hearing.

(g) This combines substance of portions of Fla.R.Crim.P. 3.130 and 3.131 which the committee felt relevant to juveniles. The time periods coincide with those afforded adults; however, the rule applies only to children in detention.

(h) Requires advising children of constitutional rights which was not previously a part of Fla.Trans. Rule 11.

RULE 8.060. TRANSFER OF CASES

(a) The court may transfer any case after adjudication, when adjudication is withheld, or when a plan under Rule 8.130(a)(3) has been accepted, to the circuit court for the county of the circuit in which is located the domicile or usual residence of the child or such other circuit court as the judge may determine to be for the best interest of the child. The transferring court shall enter an order transferring its jurisdiction and certifying the case to the proper court, furnishing the clerk and the state attorney of the receiving court within five (5) days, a certified copy of the order of transfer and of all previous orders entered by the court in the interest of that child.

COMMITTEE NOTE

Allows for transfer for disposition in any case after a determination that the court can proceed with disposition whether there has been a plea, tried or consent to a plan.

RULE 8.070. DISCOVERY

(a) Required disclosure in delinquency cases and cases involving a second or subsequent adjudication for ungovernability.

(1) After the filing of a petition alleging a child to be delinquent or ungovernable after a previous adjudication of ungoverna-bility and prior to the adjudicatory hearing, the petitioner shall disclose to the child or his counsel upon written demand within five (5) days, and permit him to inspect, copy, test, and photograph the following information and material within the petitioner’s possession or control;

(i) The names and addresses of all persons known to the petitioner to have information which may be relevant to the allegations, and to any defense with respect thereto.

(ii) The statement of any person whose name is furnished in compliance with the preceding paragraph. The term “statement” as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the state and recorded contemporaneously with the making of such oral statement. The court shall prohibit the petitioner from introducing in evidence the material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

(iii) Any written or recorded statement and substance of any oral statements made by the child and known to the petitioner, together with the name and address of each witness to the statement.

(iv) Any written or recorded statements and the substance of any oral statements made by a co-defendant if the hearing is to be a joint one.

(v) Those portions of recorded grand jury minutes that contain testimony of the child.

(vi) Any tangible papers or objects which were obtained from or belonged to the child.

(vii) Whether the petitioner has any material or information which has been provided by a confidential informant.

(viii) Whether there has been any electronic surveillance, including wiretapping, of the premises of the child, or of conversations to which the child was a party; and any documents relating thereto.

(ix) Whether there has been any search or seizure and any document relating thereto.

(x) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.

(xi) Any tangible papers or objects which the petitioner intends to use in the hearing and which were not obtained from or belonged to the child.

(2) As soon as practicable after the filing of the petition the petitioner shall disclose to the child any material information within the State’s possession or control which tends to negate the guilt of the child as to the petition’s allegations.

(3) The Petitioner shall perform the foregoing obligations in any manner mutually agreeable to him and the child or as ordered by the court.

(4) Upon showing of materiality to the preparation of the defense, the court may require such other discovery to the child as justice may require.

(5) Within five (5) days after receipt by the child of the list of names and addresses furnished by the petitioner pursuant to this rule the child shall furnish to the petitioner a written list of all persons whom the child expects to call as witnesses at the hearing. When the petitioner subpoenas a witness whose name has been furnished by the child, except for hearing subpoenas, reasonable notice shall be given to the child as to the time and place of examination pursuant to the subpoena. At such examination, the child shall have the right to be present and to examine the witness.

(6) If the child demands discovery under Section (a)(1)(h), (x), (xi), of this Rule, the child shall disclose to the petitioner and permit him to inspect, copy, test and photograph, the following information and material which corresponds to that which the child sought and which is in the child’s possession or control:

(i) The statement of any person whom the child expects to call as a trial witness other than that of the child.

(ii) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific test, experiments, or comparisons.

(iii) Any tangible papers or objects which the child intends to use in the hearing.

The child shall make the foregoing disclosures within five (5) days after receipt by him of the corresponding disclosure from the prosecutor. Defense counsel shall perform the foregoing obligations in any manner mutually agreeable to him and the prosecutor or as ordered by the court.

The filing of a motion for protective order by the petitioner will automatically stay the times provided for in this section. If a protective order is granted, the child may, within two days thereafter, or at any time before the petitioner furnishes the information or material which is the subject of the motion for protective order, withdraw his demand and not be required to furnish reciprocal discovery.

(b) Required disclosure in dependency cases.

(1) At any time after the filing of a petition alleging a child to be a dependent child, on written demand of any party, the party to whom the demand is directed shall disclose to him and permit him to inspect, copy, test or photograph matters material to the cause.

(2) The following information shall be disclosed by any party upon demand:

(i) The names and addresses of all persons known to have information relevant to the proof or defense of the petition’s allegations.

(ii) The statement as defined in this rule of any person furnished in compliance with the preceding paragraph.

(iii) Any written or recorded statement and the substance of any oral statement made by the demanding party or a person alleged to be involved in the same transaction.

(iv) Tangible papers or objects belonging to the demanding party which are to be used at the adjudicatory hearing.

(v) Reports or statements of experts, including results of physical or mental examinations and of scientific tests, experiments or comparisons.

(3) The petitioner shall not be entitled to initiate discovery under this rule, and the court may, for good cause shown, deny or partially restrict the disclosures provided by this rule.

(4) The disclosures required by this rule shall be made within five (5) days from the receipt of the demand therefor.

(c) Limitations on disclosure.

(1) Upon application, the court may deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure, which outweighs any usefulness of the disclosure to the party requesting it.

(2) The following matters shall not be subject to disclosure:

(i) Work Products. Disclosure shall not be required of legal research or of records, correspondence, or memoranda, to the extent that they contain the opinion, theories, or conclusions of the prosecuting or defense attorney or members of his legal staff.

(ii) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or a failure to disclose his identity will infringe the constitutional rights of the child.

(d) Depositions.

(1) Time and Place.

(i) At any time after the filing of the petition alleging a child to be ungovernable subsequent to a previous adjudication of ungovernability or to be delinquent the child may take the deposition upon oral examination of any person who may have information relevant to the offense charged. In dependency cases, any party may take such deposition.

(ii) The deposition shall be taken in a building where the adjudicatory hearing may be held, in such other place as agreed upon by the parties or where the trial court may designate by special or general order. A resident of the state may be required to attend an examination only in the county wherein he resides, or is employed, or regularly transacts his business in person.

(2) Procedure.

(i) The party taking the deposition shall give written notice to each other party. The notice shall state the time and place the deposition is to be taken and the name of each person to be examined.

(ii) Upon application the court or its clerk shall issue subpoenas for the persons whose depositions are to be taken.

(iii) After notice to the parties the court, for good cause shown, may extend or shorten the time and may change the place of taking.

(iv) Except as otherwise provided by this rule, the procedure for taking the deposition, including the scope of the examination, shall be the same as that provided by the Florida Rules of Civil Procedure.

(3) Any deposition taken pursuant hereto may be used at any hearing covered by these rules by any party for the following purposes:

(i) For the purpose of impeaching the testimony of the deponent as a witness;

(ii) In dependency proceedings, for testimonial evidence when the deponent, whether or not a party, is unavailable to testify because:

(a) He is dead.

(b) He is at a greater distance than one hundred (100) miles from the place of hearing, or is out of the state unless it appears that the absence of the witness was procured by the party offering the deposition.

(c) The party offering the deposition has been unable to procure the attendance of the witness by subpoena.

(d) He is unable to attend or testify because of age, illness, infirmity or imprisonment.

(e) It has been shown on application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(f) The witness is an expert or skilled witness.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.

(5) A person who refuses to obey a subpoena served upon him for the taking of a deposition may be adjudged in contempt of the court from which the subpoena issued.

(e) Perpetuating Testimony.

(1) After the filing of the petition and upon reasonable notice, any party may apply for an order to perpetuate testimony of a witness. The application shall be verified or supported by the affidavits of credible persons, and shall state that the prospective witness resides beyond the territorial jurisdiction of the court, or may be unable to attend or be prevented from attending the subsequent court proceedings, or grounds exist to believe that he will absent himself from the jurisdiction of the court, and that his testimony is material, and that it is necessary to take his deposition to present a failure of justice.

(2) If the application is well founded and timely made, the court shall order a commission to be issued to take the deposition of the witness to be used in subsequent court proceedings, and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. The commission may be issued to any official court reporter, whether the witness be within or without the state, transcribed by him and filed in the court. The commission shall state the time and place of the deposition and be served on all parties.

(3)No deposition shall be used or read in evidence when the attendance of the witness can be procured. If it shall appear to the court that any person whose deposition has been taken has absented himself by procurement, inducements, or threats by or on behalf of any party, the deposition shall not be read in evidence on behalf of that party.

(f) In cases seeking an adjudication of delinquency or for a second or subsequent adjudication for ungovernability, the child shall be entitled to have any statement of the deponent in the possession of the petitioner if he would be so entitled at an adjudicatory hearing. If the movant be the petitioner and the child be in detention, or if the place of deposition be outside the county where the petition is filed, the agency having the child in detention or responsible for the filing of the petition shall be notified of the time and place and shall produce the child at the examination and keep him in the presence of the witness during the examination.

(g) Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution and return of the commission and the opening of the depositions in civil actions shall apply in cases covered by these rules.

(h) After the filing of the petition, upon application, and subject to constitutional limitations, the court may with directions as to time, place and method, and upon conditions which are just, require:

(1) The child in all proceedings and the parent(s) or legal custodian(s) in dependency cases to:

(i) Appear in a line-up.

(ii) Speak for identification by witness to an offense.

(iii) Be fingerprinted.

(iv) Pose for photographs not involving re-enactment of a scene.

(v) Try on articles of clothing.

(vi) Permit the taking of specimens of material under his fingernails.

(vii) Permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof.

(viii) Provide specimens of his handwriting.

(ix) Submit to a reasonable physical or medical inspection of his body.

(2) Such other discovery as justice may require upon a showing that such would be relevant or material.

(i) Upon a showing of good cause, the court may, by order, alter the time for compliance with any discovery rule, or restrict or defer any disclosure and may permit any such showing in camera, provided that all material and information to which a party is entitled, be disclosed to him in time to make beneficial use thereof.

(j) If subsequent to compliance with these rules, a party discovers additional witnesses, evidence or material which he would have been under a duty to disclose or produce at the time of such previous compliance, he shall promptly disclose or produce such witnesses, evidence or material in the same manner as required under these rules for initial discovery.

(k) Sanctions.

(l) If at any time during the course of the proceedings, it is brought to the attention of a court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may:

(i) Order such party to comply with the discovery or inspection of materials not previously disclosed or produced;

(ii) Grant a continuance;

(iii) Grant a mistrial;

(iv) Prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed;

(v)Enter such order as it deems just under the circumstances.

(2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanction by the court.

COMMITTEE NOTE

The committee felt that neither Fla.R. Crim.P. nor Fla.R.Civ.P. met the needs of juveniles. As to delinquency, the rule tracks the Fla.R.Crim.P. fairly closely, although times are shortened as they must be, because of the speed with which juvenile proceedings are required to move.

The rule calls for required disclosure in delinquency and dependency cases. Of course, the state’s right to reciprocal disclosure is limited as it is in Fla.R.Crim.P. In dependency cases the petitioner is not permitted to initiate disclosure, but upon its being initiated by the child, his parents or custodians, may have reciprocal disclosure.

We have provided for depositions, both for discovery and for perpetuating testimony but have limited their use at a hearing, in delinquency and ungovernability cases, to introduction for impeachment, as in Fla.R. Crim.P., and in dependency cases having placed similar limitations to those imposed by Fla.R.Civ.P.

Appearances in a line-up, fingerprinting, photographing, etc., for the purpose of investigation is permitted as in the Fla.R. Crim.P. but with some additional controls given the court.

RULE 8.080. NOTICE OF DEFENSE OF ALIBI

(a) After a petition has been served, the state attorney may demand, in writing, that the child, if he intends to offer an alibi in his defense, shall provide the state attorney with the details of the alibi as to the time and place where the child claims to have been at the time of the alleged offense, and the names and addresses of such witnesses as may appear to testify thereon. The child shall comply as above not less than ten (10) days before the trial date.

(b) The state attorney shall, within five (5) days of the receipt thereof, provide the child with a list of such witnesses as he chooses to call, to rebut the alibi testimony.

(c) Should the child fail or refuse to comply with the provisions hereof, the court may, in its discretion, exclude testimony of alibi witnesses other than that of the child himself, or should the state attorney fail to comply herewith, the court may, in its discretion, exclude rebuttal testimony offered by the state.

(d) For good cause shown, the court may waive the requirements of this rule.

COMMITTEE NOTE

Rule 8.080 is the alibi rule taken from the Fla.R.Crim.P. 3.200. The committee has tried to simplify without doing violence to the criminal rule.

III. PLEADINGS, PROCESS, AND ORDERS

RULE 8.090. STYLE OF PLEADINGS AND ORDERS

All pleadings and orders shall be styled: “In the interest of-, a child,” or: “In the interest of -, children.”

COMMITTEE NOTE

The style of the pleadings is kept as it has been since 1951. We hope that this will serve to remind all parties that this is still a court for children and that, despite all of the changes of recent years, concern for the child has not been lost.

RULE 8.100. COMMENCEMENT OF FORMAL PROCEEDINGS

All proceedings seeking an adjudication that a child is delinquent, dependent, or ungovernable shall be initiated by the filing of a petition by a person authorized by law to do so.

COMMITTEE NOTE

The committee considered Section 8.070, Fla.Trans. Rule 11, to be in large part substantive. Who can initiate the proceedings is covered by statutory law. How they can be initiated is covered here.

RULE 8.110. PETITION

(a) Contents of Petition.

(1) The petition shall allege facts showing the court to have jurisdiction of the cause as a juvenile case and facts causing the child to be either dependent, delinquent, or ungovernable.

(2) The petition shall contain allegations as to the identity and residence of the parents or custodians, if known.

(3) In petitions alleging delinquency, each count shall recite the official or customary citations of the statute, ordinance, rule, regulation, or other provision of the law which the child is alleged to have violated. Error in or omission of the citation shall not be grounds for dismissing the petition or for a reversal of the adjudication based thereon, if the error or omission did not mislead the child to his prejudice. In petitions alleging ungovernability if the child has been adjudicated ungovernable previously, this fact shall be alleged and the petition shall notify the parties that should the court, on this petition, adjudicate the child to be ungovernable it may define and treat the child as a delinquent child.

(4) Two or more charges of dependency, delinquency, or ungovernability may appear in the same petition, in a separate count for each charge. However, if the petition contains two or more counts, the court may grant a severance thereof upon timely motion for good cause shown.

(5) Two or more children may be the subject of the same petition 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, or if they are alleged to be dependent, because of the neglect of, or mistreatment by the same persons. The children may be named in one or more counts together or separately and all of them need not be named in each count. However, the court shall order a severance and separate hearings for a child or children who are jointly alleged to be dependent or to have committed an offense or offenses upon a showing that such order is necessary to protect their right to a speedy trial, or to promote a fair determination of the cause.

(b) Verification. The petition shall be signed by the state attorney or assistant state attorney, or other petitioner, under oath, stating his good faith in filing the petition. No objection to a petition on the grounds that it was not signed or verified, as herein provided, shall be entertained after a plea to the merits.

(c) Amendments. At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party.

(d) Defects and Variances. No petition or any count thereof, shall be dismissed, or any judgment, vacated, on account of any defect in the form of the petition or of misjoinder of offenses or for any cause whatsoever unless the court shall be of the opinion that the petition is so vague, indistinct, and indefinite as to mislead the child, his parent(s), or custodian(s) and prejudice him (them) in the preparation of his (their) defense.

(e) On motion by or in behalf of a child a petition alleging delinquency or ungoverna-bility subsequent to a prior adjudication of ungovernability shall be dismissed with prejudice if it was not filed within thirty (30) days from the date the complaint was referred to the intake office.

COMMITTEE NOTE

(a)(4) Provides for multiple counts and for a joinder of two or more children in the same petition under specified circumstances, but it provides for a severance of counts for good cause shown or for separate hearings for the children in order to protect their right to a speedy trial or to promote a fair disposition of the cause.

(e) Provides that the court shall dismiss with prejudice a delinquency petition or a second ungovernability petition if the petition is not filed within thirty (30) days after the complaint was referred to the intake office. The statue has this same paragraph. Fla.Trans. Rule 11 reads may. The rule now conforms to the statute. State v. Golden (Case No. 46,321, op. filed February 26,1976).

RULE 8.120. PROCESS

(a) Issuance of Summons. Upon the filing of a petition, the clerk shall issue a summons.

(b) Contents of the Summons. The summons shall require the person on whom it is served to appear for a hearing at a time and place specified. Except in cases of medical emergency, the time of hearing shall not be less than twenty-four (24) hours after service of the summons. If the child is not detained by an order of the court, the summons shall require the custodian to produce the child at the said time and place. A copy of the petition shall be attached to the summons.

(c) Service. The summons and other process shall be served upon such persons and in such manner as required by law. If the parents or custodian are out of the state and their address is known the clerk shall give them notice of the proceedings by mail.

(d) Subpoena. Upon the application of a party, the petitioner or the state attorney, the clerk shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents or other tangible objects at any hearing. This section shall not in any way limit the state attorney’s power to issue subpoenas.

(e) Nothing herein shall be construed to prevent a party from waiving the service of process.

COMMITTEE NOTE

(b) The statute has provided since 1951 that the time of hearing set in the summons be not less than twenty-four (24) hours after service. This has been retained, but we have added an exception for a medical emergency. Frequently the court is called upon to find a child dependent and order medical care to which the parents have for some reason objected. Sometimes a twenty-four (24) hour delay can endanger the child’s life.

(c) This replaces both Paragraphs (d) and (f) which were largely substantive law.

RULE 8.130. RESPONSIVE PLEADINGS AND MOTIONS

(a) Pleas. No written answer to the petition, nor any other pleading need be filed.

(1) In delinquency or ungovernability proceedings the child may at any hearing after the filing of the petition admit or deny the state of delinquency or ungoverna-bility by pleading guilty, nolo contendere, or not guilty. The court may refuse to accept a plea of guilty or nolo contendere, and shall not accept either plea without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is a factual basis for such plea.

(2) In dependency proceedings, the parent, custodian, or any other party charged with the abuse or neglect may at any hearing after the filing of the petition admit, deny, or enter a plea of nolo contendere to the allegations of the petition. The court may refuse to accept a plea of admission or nolo contendere and shall not accept either plea without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is factual basis for such plea.

(3) Prior to the beginning of the adjudicatory hearing, the child or his counsel, the parent(s) or custodian(s) or their counsel, or an authorized agent of the Department of Health and Rehabilitative Services on behalf of the child may submit, in lieu of a plea, a plan of proposed treatment, training, or conduct. The appropriate agencies of the Department of Health and Rehabilitative Services shall be the supervising agencies for said plan and the terms and conditions of all such plans shall be formulated in conjunction with the supervising agency involved. The submission of a plan is not an admission of delinquency, ungo-vernability, or dependency.

If such a plan is submitted the procedure shall be as follows:

(i) The plan must be in writing, agreed to and signed in all cases by the parent(s) or custodian(s) and their counsel, when represented. In delinquency and ungovernability eases, the plan must also be agreed to and signed by the child and his counsel, when represented. An authorized agent of the supervising agency involved shall indicate whether the agency recommends the acceptance of the plan.

(ii) The plan shall contain a stipulation that the speedy trial rule is waived and in delinquency cases, shall include the state attorney’s consent to defer the prosecution of the petition.

(iii) After hearing, which may be waived by stipulation of the parties and the supervising agency, the court may accept the plan and order compliance therewith, or may reject it.

(iv) Violations of the conditions of the plan shall be presented to the court by motion by the supervising agency or by any party. If the court, after hearing, finds a violation has occurred, it may take such action as is appropriate to enforce the plan, modify the plan by supplemental agreement, or it may set the case for hearing on the original petition.

(v) The plan shall be effective for an indeterminate period, or for such period as is stated therein, or until the petition is dismissed.

(vi) Unless otherwise dismissed, the petition may be dismissed on the motion of the person submitting the plan or the supervising agency, after notice of hearing and a finding of substantial compliance with the provisions and intent of the plan.

(4)In delinquency or ungovernability cases a written answer admitting or denying the allegations of the petition may be filed by the child joined by a parent, custodian or the child’s counsel. If the answer admits the allegations of the petition it must acknowledge that the child has been advised of his right to counsel, of his right to remain silent, and of the possible dispositions available to the court and shall include a consent to a pre-dispositional study. Upon the filing of such an answer a hearing for adjudication or adjudication and disposition shall be set at the earliest practicable time.

(5) In dependency cases a written answer admitting or denying the allegations of the petition may be filed by a parent or custodian or by his counsel. If the answer admits the allegations of the petition it shall include consent to a pre-dispositional study. Upon the filing of such an answer, a hearing for adjudication or adjudication and disposition shall be set at the earliest practicable time.

(6) If, in a delinquency or ungovernability proceeding, a child stands mute or pleads evasively, a plea of not guilty shall be entered by the court. If, in a dependency proceeding, the parent or custodian stands mute or pleads evasively, a plea denying the dependency shall be entered by the court.

(7) The court may at any time prior to the beginning of a disposition hearing permit a plea of guilty or an admission of the allegations of the petition to be withdrawn, and if an adjudication has been entered thereon, set aside such adjudication and allow another plea to be substituted for the plea of guilty or the admission of the allegations of the petition. In the subsequent adjudicatory hearing the court shall not consider the plea which was withdrawn as an admission.

(b) Pre-Hearing Motions.

(1)Motions in General. Every motion made before a hearing and any pleading in response to the motion shall be in writing and shall be signed by the party making the motion or by his attorney. This requirement may be waived by the court for good cause shown.

(2) Motion to Dismiss. All defenses not raised by a plea of not guilty or denial of the allegations of the petition shall be made by a motion to dismiss the petition.

(i)If a motion to dismiss is granted the child who is detained under an order entered under Rule 8.040 may be continued in detention under the said order upon the representation that a new or amended petition will be filed.

(3) Motion to Suppress in Delinquency and Ungovernability Proceedings. Any confession or admission obtained illegally or any evidence obtained by an unlawful search and seizure may be suppressed on motion by the child.

(i) Contents. Every motion to suppress shall clearly state the particular evidence sought to be suppressed, the reason for the suppression and a general statement of the facts on which the motion is based.

(ii) Time for Piling. The motion to suppress shall be made prior to the adjudicatory hearing unless an opportunity therefore did not exist or the party making the motion was not aware of the grounds for the motion. The court may entertain the motion or an appropriate objection at the adjudicatory hearing.

(iii) Hearing. Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the moving party shall present evidence in support thereof and the state may offer rebuttal evidence.

(c) Service of Pleadings and Papers.

(1) Service, When Required. Unless the court orders otherwise every pleading subsequent to the initial petition, every order, every written motion, unless it is one as to which hearing ex parte is authorized, and every written notice, filed in the case shall be served on each party; however, nothing herein shall be construed to require that a plea be in writing or that an application for witness subpoena be served.

(2) Service, How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or 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. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall mean:

(i) Handing it to the attorney or the party;

(ii) Leaving it at the attorney’s office with the person in charge thereof;

(iii) If there is no one in charge of the office leaving it in a conspicuous place therein;

(iv) If the office is closed or the person to serve 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.

(3) 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.

(4) Filing with 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.

(5) Certificate of Service. When any authorized person 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_”

Title

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

(6)Service of pleadings and orders required to be served as provided by subdivision (2) may be certified by an attorney of record, clerk or deputy clerk, judge, or authorized agent of the Department of Health and Rehabilitative Services in the form provided in subdivision (5).

(d) 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 hereof, shall be served a reasonable time before the time specified for the hearing.

(e) 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 notice or other paper upon him and the notice or paper is served upon him by mail, three (3) days shall be added to the prescribed period.

(f) Pleading to be Signed by Attorney.

Every written paper or pleading of a party represented by an attorney shall be signed in his individual name by such attorney, whose address shall be stated, and who shall be duly licensed to practice law in Florida. He may be required by an order of court to vouch for his authority to represent such party and to give the address of such party. Except when otherwise specifically provided by these rules or applicable statute, 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 paper or pleading; 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 and the action may proceed as though the pleading or paper had not been served.

(g) Pleading to be Signed by Unrepresented Defendant.

A party who has no attorney but represents himself shall sign his written pleading or other paper and state his address.

COMMITTEE NOTE

(a)(1) Retains the basic features of Sections 8.080(a)(1) and 8.080(a)(2) of Fla.Trans. Rule 11. The rewording and rearrangement does not change the meaning; added is the requirement that the court determine a factual basis for the plea and that the person pleading understands the possible consequences of the plea.

(a)(4)(5) Paragraphs (4) and (5) provide for a written answer to avoid unnecessary appearances before the court.

(a)(7) Substantially the same as Fla.R. Crim.P. 3.170(f).

(b)(1) Based on Fla.R.Crim.P. 3.190(a) but does not provide for service of the adverse party’s attorney before filing of the original nor require certification of service. Paragraph (b) below covers service of such motions.

(b)(2) General provision for all defenses not raised by a guilty plea to be made by a motion to dismiss. [See Fla.R.Crim.P. 3.190(b), (c), and (d)].

(b)(3) Provides one rule for Motion to suppress evidence, confession or admission. [See Fla.R.Crim.P. 3.190(h) and (i)].

(c) Same as Fla.R.Crim.P. 3.030 with sub-paragraph (6) added which permits certification by persons who normally do so in the juvenile system.

(e) Same as Fla.R.Crim.P. 3.070 and Fla. R.Civ.P. 1.090(e).

(f) Based on Fla.R.Crim.P. 3.080 and Fla. R.Civ.P. 1.030(a).

(g) Based on Fla.R.Crim.P. 3.090 and Fla. R.Civ.P. 1.030(b).

RULE 8.140. ORDERS

All orders of the court shall be reduced to writing as soon after they are entered as is consistent with orderly procedure and good practice. After an adjudicatory hearing, unless the petition is dismissed, the court will incorporate in the order a brief statement of the facts which it finds to be true and will thereafter adjudicate the child or in its discretion, withhold adjudication, as provided by law. In cases of ungovernability, after the adjudication, the court will define the child as delinquent or dependent.

COMMITTEE NOTE

Provides that orders be placed in writing and that in the adjudicatory order the court incorporate “. . .a brief statement of the facts which it finds to be true . .” This little rule seems insignificant, but if a child, or his allegedly neglectful parents, come back before a judge six months or a year or more after the order is entered it is so important that the judge understand what the prior offense or neglect actually was, and not read an order couched in the cold language of a legalistic charge.

IV. EXCEPTIONAL PROCEDURES PRIOR TO ADJUDICATION

RULE 8.150. WAIVER OF JURISDICTION

(a) On Demand. If a demand is made, as provided by law, that the court waive its jurisdiction and certify the case for trial as if the child were an adult, the court shall enter a written order setting forth the demand, waiving jurisdiction, and certifying the case for trial as if the child were an adult. The demand shall be made in writing or orally in open court, but must be made prior to the commencement of an adjudicatory hearing. A certified copy of the order shall be furnished the clerk of the court having jurisdiction to try the child as an adult and to the prosecuting officer of the said court within five (5) days of the demand being made. The court may order that the child be delivered to the sheriff of the county in which the court that is to try him is located.

(b) Involuntary Waiver. After hearing as provided in Rule 8.160, the court may enter an order waiving jurisdiction and certifying the case for trial as if the child were an adult as provided by law. The order shall set forth the basis for waiver of jurisdiction and certification to the appropriate court. A certified copy of the order shall be furnished to the clerk of the court having jurisdiction to try the child as an adult, and to the prosecuting officer of the said court, within five (5) days of the date of the order. The child shall be delivered immediately to the sheriff of the county in which the court thát is to try him as an adult is located.

(c) If the child is delivered to the sheriff under (a) and (b) above the court shall fix bail in all cases unless it is a capital offense or an offense punishable by imprisonment for life and the proof of guilt is evident or the presumption is great.

COMMITTEE NOTE

This rule deals with the two types of waiver: (a) On demand, and (b) Involuntary after a hearing. Waiver, of course is a matter of right, (a) sets out when and how the demand shall be made; what the order shall contain; and when and to whom it shall be sent. It also provides that the court may order the child to be delivered to the sheriff of the county in which he is to be tried, (b) provides for the contents of the order waiving jurisdiction after a hearing, and provides when and to whom this order shall be sent. You will note that this paragraph provides that the child shall be delivered immediately to the sheriff of the county in which the court that is to try him is located.

Section 8.100(c), Fla.Trans. Rule 11, regarding involuntary waiver simply tracked the statutory language at the time Fla. Trans. Rule 11 was adopted which allowed waiver of felony charges only.

§ S9.03(5)(a) and § 39.09(2)(a), Fla.Stat. (1975), now allow involuntary waiver for a child over the age of fourteen (14) charged with a violation of law. The committee feels that this goes to the jurisdiction of the court and is substantive.

RULE 8.160. WAIVER HEARING

(a)The state attorney may, within five (5) days of the date a delinquency petition has been filed, or later with the approval of the court, and before a hearing on the petition on its merits, and following consultation with the intake office, file a motion requesting the court to waive its jurisdiction and certify the case to the appropriate court for trial as if the child were an adult as provided by law.

(b) Following the filing of the motion of the state attorney, summonses shall be issued and served in conformity with the provision of Rule 8.120. A copy of the motion and a copy of the delinquency petition, if not already served, shall be attached to each summons.

(c) The court shall conduct a hearing on all such motions to determine the existence of the criteria required by law for waiver of jurisdiction.

(d) If waiver is denied, the same judge, with the consent of the child and the state, may proceed immediately with the adjudicatory hearing using and considering the evidence presented at the waiver hearing to establish probable cause which is also competent for adjudicatory purposes and shall then consider such other evidence as is presented by the state and the child. If objected to by the child or the state the same judge shall not participate in any proceeding subsequent to the waiver hearing relating to that offense.

COMMITTEE NOTE

See comment RULE 8.150.

RULE 8.170. PROCEDURE WHEN CHILD BELIEVED TO BE INSANE

(a) At Time of Adjudicatory Hearing.

(1) If at any time prior to or during the adjudicatory hearing in delinquency or un-governability hearings, the court has reasonable grounds to believe the child named in the petition may be incompetent to proceed with an adjudicatory hearing, the court shall immediately stay the proceedings and fix a time for a hearing for the' determination of the child’s mental condition.

(2) If at the hearing provided for in (1) above the child is found to be competent to proceed with an adjudicatory hearing, the court shall proceed therewith.

(3) If at the hearing provided for in (1) above the child is found to be incompetent to proceed with the adjudicatory hearing, proceedings shall be commenced for the involuntary hospitalization of the child as provided by law.

(4) If the child is not hospitalized, or upon his release from the hospital, any interested party or the court on its own motion may call the matter up for the purpose of setting an adjudicatory hearing.

(5) If after any civil proceeding for involuntary hospitalization, the court determines, after hearing, that there is no reasonable probability that the child will become competent for the purpose of an adjudicatory hearing in the foreseeable future and that no progress is being made toward that goal, it shall enter an order dismissing the petition.

(b) At time of the Offense.

(1) If the child named in the petition intends to plead insanity as a defense, he shall so advise the court in writing not less than ten (10) days in advance of the adjudicatory hearing and shall provide the court with a statement of particulars showing as nearly as he can the nature of the insanity he expects to prove and the names and addresses of witnesses by whom he expects to prove such insanity. Upon the filing of said statement, upon motion of the state, or on its own motion, the court may cause the child to be examined in accordance with the procedures set forth in this rule.

(2) The court, upon good cause shown and in its discretion, may waive the requirements herein set forth and permit the introduction of such defense, or may continue the hearing for the purpose of an examination in accordance with the procedures set forth in the rule. A continuance granted for this purpose will toll the speedy trial rule and the limitation on detention pending adjudication.

(c) Appointment of Expert Witnesses; Detention of Child for Examination.

(1) Where a question has been raised concerning the sanity or competency of the child named in the petition and the court has set the matter for an adjudicatory hearing or a hearing to determine the mental condition of the child, the court may appoint not exceeding three (3) disinterested qualified experts to examine the child and testify at the hearing. Other competent evidence may be introduced at the hearing. The appointment of experts by the court shall not preclude the state nor the child from calling other expert witnesses to testify at the adjudicatory hearing or at the hearing to determine the mental condition of the child.

(2) The court, in its discretion, may order the child held in detention pending such examination and hearing.

COMMITTEE NOTE

A procedure when a child is believed to be insane presented some difficulty, for the authorit