In re Florida Bar to Amend the Florida Rules of Juvenile Procedure (462 So. 2d 399, 1984)

PER CURIAM.

This proceeding is before the Court upon the petition of The Florida Bar for a general revision of the Florida Rules of Juvenile Procedure. The proposal for a general revision is made pursuant to Florida Rule of Judicial Administration 2.130(c). We have jurisdiction. Art. V, § 15, Fla.Const.

The Florida Rules of Juvenile Procedure are hereby amended to read as set forth below. The revision as proposed and as hereby adopted divides the Rules of Juvenile Procedure into two parts, with Part I governing delinquency proceedings and Part II governing dependency proceedings. Part I is based upon the former rules with additions indicated by underscoring and deletions indicated by struck-through type. Although Part II is to some extent also based upon the former rules, we consider all of Part II to be new material and we set it forth in ordinary type.

The notes of the Florida Bar Committee on Rules of Juvenile Procedure, where provided, are set forth following the rules to which they pertain. The Committee Notes are provided for the guidance of the reader but are not necessarily definitive and are not a part of the rules as adopted by this Court.

The following revised Rules of Juvenile Procedure will take effect on January 1, 1985.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

PART I: DELINQUENCY PROCEEDINGS

I» A. INTRODUCTORY RULES

Rule 8.010. Scope and Purpose

These rules shall govern the procedures in the Circuit Court in the exercise of its jurisdiction under the Florida Juvenile Justice Act.

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.RJuv.P.

When appropriate the use of singular nouns and pronouns shall be construed to include the plural and the use of plural nouns and pronouns shall be construed to include the singular. The use of male pronouns shall be construed in the universal sense of both male and female.

IL B. 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 or sworn testimony is filed with presented to 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. Thé 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) Order 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.

Rule 8.040. Detention Petition and Order

(a) Time Limitation. No child taken into custody shall be detained, as a result of the incident for which he is taken into custody, 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) (b) Petition. 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)(c) Order. 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) Order that the child shall be held in detention or shelter care and state the reasons therefor;

(5) Make a finding that probable cause exists that the child is delinquent or dependent, or that such a finding cannot 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.

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 court finds that the parent or custodian cannot be located, that-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.

(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 may be held in the county where the incident occurred, where the child is taken into custody, or where the child is detained.

(d) Notice. The intake officer shall make a diligent effort to notify the parent or custodian of the child of 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 nonattendance at the hearing shall not invalidate the proceeding or the order of detention.

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

(1) In delinquency cases the child shall be advised of:

(i) (1) The nature of the charge for which he was taken into custody.

(tí) (2) His right to be represented by counsel and if insolvent the right to appointed counsel.

(hi) (3) That he is not required to say anything and that anything he says may be used against him.

(iv) (4) 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) (5) The reason continued detention is requested.

(2) - In dependency-eases, the parent or Gustod-ian^-and-fee child, if he is of an age to understand, shall-be-advised of

(i) The reason for the child’s being in custodyy

(ii) — The-r-ight of the parent or guardian-to-be-represented-by-retained-eoun-sel and, when applicable, the right of insolvent parents or guardians to appointed counsel.

(iii)-T-he-reason-eontmued detention

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

(1) The existence of probable cause to believe the child has committed a delinquent act or is dependent. 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.

(2) 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.

(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 — sheiter-eare- 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-oare 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.

Rule 8.060. Tr-ansfer-of-Gases [Reserved]

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-cireuit-court-for-the county of the circuit-in-which-is-located -the domicile or usual -residence -of-the-child or such other-cipcuit-GOurb as- the-judge- may determine to be for-the-best interest of the child. — The trans-fer-r-ing — court- shall -enter an order transferring its — jurisdiction—and certifying the case — to—the-proper— cour-⅜⅛ furnishing the clerk-and-the-state-attor-ney-of the receiving court within five (5)-day-s-a certified-copy of the order of transfer and of-all-prev-ioas-order-s -entered by ■ the court in the interest-of-that-childT

C. DISCOVERY

Rule 8.070. Discovery

(a) Required disclosure in delinquency cases to child.

(1) After the filing of a petition alleging a child to be delinquent 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 or 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 the 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.

(b) Required Disclosure to Petitioner.

(5) (1) 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) (2) If the child demands discovery under section (a)(1), paragraphs (ii), (x), or (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.

⅝ (ii) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

(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 thp 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 ohild-to be a dependent child, on written-demand of any party, the party to whom the demand is directed-sha-U-disclose to-him and permit him to inspect, copy, test or photograph matters material to the causeT

(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-jn-eompliance with the preceding ■ paragraph.

(iii) Any- -w-ritten^or — recorded- statement and the substance of any oral statement made by the demanding par-the same transaction.

(iv) Tangible papers or objects belonging to the demanding party-which are to be used at the adjudicatory hear-tegv

(v) Reports — or-.statements—of—experts,- including-resulta-of-pby-sieal-or mental examinations and of scientific tests-ex-per-iments, or comparisons^

(3)The petitioner-shall-not-be-entitled to initiate discovery under section (b) of this-rule, and the-eourt-may, for good cause shown, deny or -partially restrict

(b)-of-this-rule-

(4-)-T-he--disclosures — required by this section (b) of- 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 disclosure 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 memoran-da, 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 delinquent the child may take the deposition upon oral examination of any person who may have information relevant to the offense charged. In dependency eases-an-y-partymay take such deposi-

(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—fehe—fene—and—may change the time or place of taking.

(iv) Except as otherwise provided by this rule, the procedure for taking the deposition, including the scope of the examination, objections, and the issuance, execution and return of service, 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 witnessjr

(-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-g-reater distance than one hundred (lOO)-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)-I-t-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—te—the importance — of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(⅛) — The—witness—is—an—expert—or

(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 prevent 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) Entitlement to Depositions in Delinquency Cases, — In delinquency-cases, 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-haviag 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 dur-ing-the examination.

(g) Rules governing depositions, — -Except as otherwise provided, the rules governing the taking and filing of oral depositions and objections thereto, the--issuing-,--execution? and return of comm!ssionsr-and the opening of depositions, under the-F-Ior-idar-Buies of Civil Procedure, shall -apply-in-cases covered by-these rules.-

(h) (|) Nontestimonial Discovery. 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 or custodian in dependency-eases to:

(i) Appear in a line-up.

(ii) Speak for identification by wit-' ness to an offense.

(iii) Be fingerprinted.

(iv) Pose for photographs not involving reenactment 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) (g) Limitations on Discovery. 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) (h) Supplemental Discovery. 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.

04 (}1 Sanctions.

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

(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.

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.

HL D. 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.”

Rule 8.100. Commencement of Formal Proceedings

All proceedings shall be initiated by the filing of a petition by a person authorized by law to do so. A uniform traffic complaint may be considered a petition, but shall not be subject to the requirements of Rule 8.110.

Rule 8.110. Petitions For Delinquency and Dependency

(a) Contents of Petition.

(1) Each petition shall be entitled either a petition for delinquency or a-petition for dependency and shall allege facts showing the child to be dependent or to have committed a delinquent act.

(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, including the degree of each offense.

(4) Two or more allegations of dependency^ or the commission of delinquent acts may appear in the same petition, in separate counts.

(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.

(b) Verification. The petition shall be signed by the state attorney, assistant state attorney, or other petitioner, stating under oath 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. If the court is of the opinion that the petition is so vague, indistinct, and indefinite as to mislead the child, parent, or custodian and prejudice any of them him in the preparation of a defense, the petitioner may be required to furnish a statement of particulars in-delinquency cases or a more definite-statement in - dependency — cases.

(e) Prompt Filing. On motion by or in behalf of a child a petition alleging delinquency shall be dismissed with prejudice if it was not filed within for-ty-five-(4g-)-days from the date the complaint was-refer-red to the-intake-office the time provided by law. However, the court may grant an extension of time not to-exceed an additional fifteen (15) days upon-motion therefor by the state attorney when, in the-opinion-of the court, such-additional time is-justified because-of exceptional circumstances as provided by law.

Rule 8.120. Process

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

(b) 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. Service of process may be waived.

(c) Subpoena. Upon the application of a party, fee-petitioner, or the state attorney7 the clerk shall issue, and the court on its own motion may¿ issue7 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.

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 cases the child may plead 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,—fee parent, custodian, or any other party-except the petitioner may at any hearing after the filing of the petition admit or deny-the-allegutions-of — the petition or consent — to-the - court — adjudicating the child.dependent. — The court shall determine that the admission-or consent — ⅛ made voluntarily and -w-ith-a-full-ander-standing of the nature of the allegations and the possible-consequences of such admission or consent.

(3)(2) After the filing of a petition and prior to the adjudicatory hearing, the child or his counsel, the parent or-custodian 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 may be submitted on behalf of the child in lieu of a plea. 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 the allegations of the petition of delinquency 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 parents or custodians state attorney, the child, and, when represented, their by his eounseb, and, unless excused by the court, by the parents or custodian. In delinquency cases, the plan — must also be agreed to and signed by — the child and, when represented, by his counsel. 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. If the plan is rejected by the court, the court shall state on the record the reasons for rejection.

(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) (3] ⅛-delinquency cases a 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 constitute-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

(6) (4) If;-in a delinquency case, 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.

(?) (5) The court may for good cause shown 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 a» adjudication a finding that the child committed a delinquent act has been entered thereon, set aside such adjudication finding 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 Cases. 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 Filing. — 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 hear-img-

(iii)(ii) 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.

(4) Motion to Sever. A motion may be made for the severance of two or more counts in a multi-count petition, or for the severance of the cases of two or more children to be adjudicated in the same hearing. The court may grant motions for severance of counts and severance of jointly-brought cases for good cause shown.

(5) Time for Filing. Any motion to suppress, sever, or dismiss shall be made prior to the date of the adjudicatory hearing unless an opportunity to make such motion previously did not exist or the party making the motion was not aware of the grounds for the motion.

(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_”

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 thereof 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 and telephone number, including area code, 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 Party. A party who has no attorney but represents himself shall sign his written pleading or other paper and state his address and telephone number, including area code.

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 shall contain findings of fact as required by law.

1⅜ E, EXCEPTIONAL PROCEDURES PRIOR TO ADJUDICATION

Rule 8.150. Waiver of Jurisdiction

(a) On Demand. On demand for waiver of jurisdiction, 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, as required in the form provided by law, in writing or orally-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 child 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; Hearing.

(1) Where As provided by law, the state attorney may, within the time-provided by law, or later with the approval of the court, and before- an adjudicatory hearing and after considering the recommendation of the-intake officer- 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.

(2) Following the filing of the motion of the state attorney, summons 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.

(3) No plea to a petition shall be accepted by the court prior to the disposition of the motion to waive jurisdiction.

(4) After the filing of the report required by law, the court shall conduct a hearing on all such the motions to determine the existence of the criteria established by law for waiver of jurisdiction.

(4) (5) After hearing as provided in this rule,

(i) 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 that is to try him as an adult is located.

(5){ii) If waiver is denied, the same judge, with the consent of the child and the state, may proceed immediately with the adjudicatory hearing.

(c) Bail. If the child is delivered to the sheriff under (a) or (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. A certified copy of the order shall be furnished to the sheriff.

Rule 8.160. Transfer of Cases

The court may transfer any case after adjudication, when adjudication is withheld, or when a plan under Rule 8.130(a)(2) 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.

Rule 8.170. Procedure When Child Believed to be Incompetent

(a) At Time of Adjudicatory Hearing in Delinquency Cases.

(1) If at any time prior to or during the adjudicatory hearing, 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.

(i) If the child is not hospitalized because of the fact that the child does not meet the criteria for involuntary hospitalization according to law, the court may order any non-delinquent treatment for the child in order to restore the child’s competence to proceed with an adjudicatory hearing.

(ii) 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.

(4) 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 compentency 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.

⅜ F. TIME OF PROCEEDINGS

Rule 8.180. Speedy Trial

(a) Time. Every case in which If a petition has been filed alleging a child to be delinquent or dependent have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:

(1) The date the child was taken into custody.

(2) The date the petition was filed.

(b) Dismissal. If the an adjudicatory hearing fe has not begun commenced within ninety (90) days2 or an extension thereof as hereinafter provided upon motion timely filed with the court and served upon the prosecuting attorney the petition shall be dismissed with prejudice; provided, the court before granting such motion shall make the required inquiry under subsection (d) of this rule.

(c) W-ai-ver-v — In-a delinquency proceeding the child may voluntarily waive his right to a speedy trial. Commencement. A child shall be deemed to have been brought to trial if the adjudicatory hearing begins before the judge within the time provided.

(d) Extensions of Time. — The-courbmay extend the period -of — time- established by this order on motion of any party, after hearing, on a finding- that the interest of justice will be served by such extension. The order-w-ill-recite the reasons for such extension, — The general congestion of the court's docket, lack of diligent preparation, or failure to obtain available witnesses, or other avoidable-or-foreseeable delays shall not constitate-g-r-ounds for such extension. Motion to Dismiss. If the adjudicatory hearing is not commenced within the periods of time established, a motion to dismiss shall be granted by the court, unless:

(1) The child has voluntarily waived his right to speedy trial;

(2) An extension of time has been ordered under (e); or

(3) The failure to hold an adjudicatory hearing is attributable to the child, a co-respondent in the same adjudicatory hearing, or their counsel; or

(4) The child was unavailable for the adjudicatory hearing. A child is unavailable if:

(i) The child or his counsel fails to attend a proceeding when their presence is required; or

(ii) The child or his counsel is not ready for the adjudicatory hearing on the date it is scheduled.

No presumption of non-availability attaches, but if the state objects to dismissal and presents any evidence tending to show non-availability, the child must, by competent proof, establish availability during the term.

(5) If the court finds dismissal is not appropriate, the pending motion to dismiss shall be denied, and an adjudicatory hearing shall commence within ninety (90) days of a written or recorded order of denial.

(e) Effect of-Mlstrial,- Order of New Trial,.A-person who is to be tried-again shall be brought-to-trial-within ninety (90) days from-the-date of declaration of a mistrial by the trial court, the date of an order by the-tr-ial-court, granting a^-new — trial, the date of an order by the trial court granting a-motion-to -vacate a judgment, or the date of receipt by the tr-ial-court of a mandate, order — or--notice of whatever-for-m-from an appellate or other — reviewing court which makes possible a new-trial, whichever is last in time. Extension of Time. The period of time established by (a) may be extended as follows:

(1) Stipulation. Upon stipulation, announced to the court or signed by the child or his counsel and the state.

(2) Exceptional circumstances. By written or recorded order of the court on the court's own motion or motion by either party in exceptional circumstances. The order extending the period shall recite the reasons for the extension and the length of the extension. Exceptional circumstances are those which require an extension as a matter of substantial justice to the child or the state or both. Such circumstances include:

(i) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;

(ii) a showing by the state that the case is so unusual and so complex, due to the number of respondents or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;

(iii) a showing by the state that specific evidence or testimony is not available, despite diligent efforts to secure it, but will become available at a later time;

(iv) a showing by the child or the state of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial;

(v) a showing that a delay is necessary to accomodate a co-respondent, where there is a reason not to sever the cases in order to proceed promptly with trial of the respondent;

(vi) a showing by the state that the child has caused major delay or disruption of preparation or proceedings, as by preventing the attendance of witnesses or otherwise;

(vii) exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.

(3) By written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including, but not limited to, an examination and hearing to determine the mental competency or physical ability of the respondent to stand trial for hearings or pretrial motions, for appeals by the state, and for adjudicatory hearings of other pending charges against the child.

(f) Permanent Commitment. — This rule shall not apply to proceedings for permanent commitment-of the child to a licensed child placing agency or to the Department of Health and Rehabilitative Services-for-subsequent adoption; Speedy Trial Upon Demand.

(1) If the child has waived his right to Speedy Trial under (d), he shall, by written demand filed with the court and upon service upon the prosecuting attorney, be brought to an adjudicatory hearing within sixty (60) days of filing the demand.

(2) A child charged by a petition alleging a delinquent act shall be brought to an adjudicatory hearing within sixty (60) days of filing a written demand with the court and service upon the prosecuting attorney.

(g) Demand for Speedy Trial; Effect. A demand for speedy trial shall be deemed a pleading by the respondent that he is available for the adjudicatory hearing, has diligently investigated his case, and that he is prepared or will be prepared for the adjudicatory hearing within five (5) days. A demand may not be withdrawn by the child, except on order of the court, with consent of the State or on good cause shown. Good cause for continuances or delay on behalf of the accused shall not thereafter include nonreadiness for the adjudicatory hearing, except as to matters which may arise after the demand for the adjudicatory hearing is filed and which could not reasonably have been anticipated by the accused or his counsel.

(h) Dismissal after Demand. If an adjudicatory hearing has not commenced within sixty (60) days after a demand for speedy trial, upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney, the child shall forever be dismissed from the delinquent act; provided, the court before granting such motion shall make the required inquiry under (d).

(i) Effect of Mistrial, Appeal, or Order of New Trial. A child who is to be tried again or whose adjudicatory hearing has been delayed by an appeal by the state or the respondent, shall be brought to trial within ninety (90) days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, or the date of receipt by the trial court of a mandate, order or notice- of whatever form from an appellate or other reviewing court which makes possible a new trial for the respondent, whichever is last.

⅞ G. HEARINGS

Rule 8.190. Adjudicatory Hearings

(a) Appearances; Pleas.

In delinquency cases,■ ⅛ The child, and in dependency cases, the child, the parents, or custodian, shall appear before the court at the time set and, unless a written answer plea has been filed, enter a plea, admit or deny the allegations of dependency or consent to-the adjudication of-dependency of guilty, not guilty, or, with the consent of the court, nolo contendere.

(b) Preparation of Case. 1¾ — in delinquency cases, the child or — ⅛-dependenc-y cases, the parent or custodian, pleads not guilty or-denies the-allegations-of-the-petition the court may proceed at once to an adjudicatory hearing, or may continue the case to allow sufficient time on the court calendar for a hearing or to give the state or any party the child a reasonable time for the preparation of the case.

(c) Trial by Judge. The adjudicatory hearing shall be conducted by the judge without a jury. At this hearing the court determines whether the allegations of the peti