In re Florida Bar to Amend the Florida Rules of Juvenile Procedure (589 So. 2d 818, 1991)

Florida Supreme Court 1991-05-09

Citations

Full opinion text

PER CURIAM.

In connection with The Florida Bar re Advisory Opinion HRS Nonlawyer Counselor, 547 So.2d 909 (Fla.1989), and In re Amendments to Florida Rules of Juvenile Procedure (HRS Unlicensed Practice of Law), 557 So.2d 1360 (Fla.1990), this Court gave permission to the Florida Bar Juvenile Court Rules Committee to revise the Florida Rules of Juvenile Procedure outside the four-year cycle for rules revision. The proposed amendments reflect statutory changes through the 1990 legislative session. The Court has received comments and suggestions from the Jacksonville Public Defender regarding the delinquency rules and from the Florida Rules of Judicial Administration Committee regarding use of certified court reporters. The juvenile rules committee considered the public defender’s suggestions and agreed with some and disagreed with others.

After considering the juvenile rules committee’s proposed amendments and the suggestions received from others, the Court adopts the committee’s proposals. Therefore, the rules of juvenile procedure are amended as set out following this opinion. The amended rules will be effective at 12:01 a.m., July 1, 1991.

It is so ordered.

SHAW, C.J., and OVERTON, McDonald, barkett, grimes, KOGAN and HARDING, JJ., concur.

PART I. DELINQUENCY PROCEEDINGS

A. INTRODUCTORY RULES

RULE 8.010000. SCOPE AND PURPOSE

These rules shall govern the procedures in the Ccircuit Gcourt 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.R.Juv.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.-

Committee Note: All rules have been edited for style and to remove gender-bias. The rules have been reorganized and renumbered to correspond to the types and stages of juvenile proceedings. Cross-references have been changed accordingly.

■RU-LE-8,020 [RESERVED]

B. PRELIMINARY PROCEEDINGS RULE 8.030005. ORDERING CHILDREN INTO CUSTODY

Initial paragraph [No change]

(a) Bbe in writing;

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

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

(d) Sstate 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) Sstate the date when issued? and the county and court where issued; and

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

RULE 8.050010. DETENTION HEARING

(a) When Required. No detention order provided for in Brule 8.04013 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, unless the court finds that the parent or custodian cannot be located or that the child’s mental or physical condition is such that a court appearance is not in his the child’s best interest.

(b) — (e) [No change]

(1) Tthe nature of the charge for which he or she was taken into custody*;

(2) His the right to be represented by counsel and if insolvent the right to appointed counsel*;

(3) Tthat he the child is not required to say anything and that anything he says said may be used against him or her*;

(4) lif his the child’s parent, custodian, or counsel is not present, that he or she has a right to communicate with them and that, if necessary, reasonable means will be provided for him to do so*; and

(5) Tthe reason continued detention is requested.

(f) [No change]

(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. If the court finds that such probable cause does not exist, it shall forthwith release the child from detention. If the court finds that one or more of the statutory needs of detention exists, but is unable to make a finding on the existence of probable causez it may retain the child in detention 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 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 Hie holding of the child in detention prior to an adjudicatory hearing.

RULE 8.040013. DETENTION PETITION AND ORDER

(a) Time Limitation. No child taken into custody shall be detained, as a result of the incident for which he4s taken into custody, longer than twenty-four hour-s as provided by law unless a detention order so directing is made by the judge court following a detention hearing.

(b) Petition. The detention petition shall:

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

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

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

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

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

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

(c) Order. The detention order shall:

(1) Bbe in writing;

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

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

(4) ©order that the child shall be held in detention and state the reasons therefor;

(5) Mmake 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 hfe the detention along with any special conditions found to be necessary;

(7) Sstate 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; and

(8) Bbe signed by the judge court with the title of hfe office.

RULE 8.015. ARRAIGNMENT OF DETAINED CHILD

(a) When Required. If a petition for delinquency is filed and the child is being detained, whether in secure, nonsecure, or home detention, the child shall be given a copy of the petition and shall be arraigned within 48 hours of the filing of the petition, excluding Saturdays, Sundays, or legal holidays.

(b) Notice.

(1) Personal appearance of any person in a hearing before the court shall obviate the necessity of serving process on that person.

(2) The clerk of the court shall give notice of the time and place of the arraignment to the parent or guardian of the child and the superintendent of the detention center by:

(A) summons;

(B) written notice; or

(C) telephone notice.

(3) The superintendent of the detention center, or designee, also shall verify that a diligent effort has been made to notify the parent or guardian of the child of the time and place of the arraignment.

(4) Failure of notice to the parent or guardian, or nonattendance of the parent or guardian at the hearing, shall not invalidate the proceeding.

Committee Note: This rule corresponds to section 39.044(7), Florida Statutes, which requires detained children to be arraigned within 48 hours of the filing of the delinquency petition. This statutory requirement does not allow the normal summons process to take place. The rule, therefore, creates an option for the clerk of the court to notice the parent by phone or in writing.

DC. PLEADINGS, PROCESS, AND ORDERS

RULE 8.090025. STYLE OF PLEADINGS AND ORDERS

[No change in text]

RULE 8.400030. 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 Brule 8.440035.

RULE 8.440035. PETITIONS FOR DELINQUENCY

(a) [No change]

(b) Verification. The petition shall be signed by the state attorney, or assistant state attorney, or other petitioner, stating under oath hfe the petitioner’s 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) [No change]

(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 and prejudice him the child in the preparation of a defense, the petitioner may be required to furnish a statement of particulars.

(e) [No change]

RULE 8.420040. PROCESS

(a) Summons.

(1) Upon the filing of a petition upon a child who is not detained by order of the court, 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. The time of the hearing shall not be less than twenty-four (24) hours after service of the summons. If the child is not detained by order of the court, tThe summons shall require the custodian to produce the child at the said time and place. A copy of the delinquency petition shall be attached to the summons.

(2) If the child is being detained by order of the court, process shall be in accordance with the rule pertaining to the arraignment of a detained child.

(b) [No change]

(c) [No change]

Committee Note: This rule clearly defines the difference in procedures for summons for detained and nondetained children.

RULE 8.045. NOTICE TO APPEAR

(a)Definition. A notice to appear, unless indicated otherwise, means a written order issued by a law enforcement officer or authorized agent of the department, in lieu of taking a child into custody or detaining a child, which requires a child accused of violating the law to appear in a designated court or governmental office at a specified date and time.

(b) By Arresting Officer. If a child is taken into custody for a violation of law and the officer elects to release the child as provided by law to a parent, responsible adult relative, or legal guardian, a notice to appear may be issued to the child by the officer unless:

(1) the child fails or refuses to sufficiently identify himself or herself or supply the required information;

(2) the child refuses to sign the notice to appear;

(3) the officer has reason to believe that the continued liberty of the child constitutes an unreasonable risk of bodily injury to the child or others;

(4) the child has no ties with the jurisdiction reasonably sufficient to assure an appearance or there is substantial risk that the child will refuse to respond to the notice;

(5) the officer has any suspicion that the child may be wanted in any jurisdiction; or

(6) it appears that the child has previously failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

(c) By Departmental Agent. If a child is taken into custody by an authorized agent of the department as provided by law, or if an authorized agent of the department takes custody of a child from a law enforcement officer and the child is not detained, the agent shall issue a notice to appear to the child upon the child's release to a parent, responsible adult relative, or legal guardian.

(d) How and When Served. If a notice to appear is issued it shall be prepared in sextuplícate. One copy of the notice shall be delivered to the child and 1 copy shall be delivered to the person to whom the child is released. In order to secure the child’s release, the child and the person to whom the child is released shall give their written promise that the child will appear as directed in the notice by signing the remaining copies. One copy is to be retained by the issuer and 3 copies are to be filed with the clerk of the court. These 3 copies shall be sworn to by the issuer, a notary public, a deputy clerk, or an authorized agent of the department.

(e) Distribution of Copies. The clerk shall deliver 1 copy of the notice to appear to the state attorney and 1 copy to the department and shall retain 1 copy in the court's file.

(f) Contents. A notice to appear shall contain the following information:

(1) The name and address of the child and the person to whom the child was released.

(2) The date of the offense(s).

»(3) The offense(s) charged by statute and municipal ordinance, if applicable.

(4) The counts of each offense.

(5) The time and place where the child is to appear in court.

(6) The name and address of the trial court having jurisdiction to try the pí-fensete) charged.

(7) The name of the arresting officer or authorized agent of the department.

(8) The signatures of the child and the person to whom the child was released.

(g) Failure to Appear. When a child signs a written notice to appear and fails to respond to the notice, an order to take into custody shall be issued.

(h) Form of Notice. The notice to appear shall be substantially as found in form 8.930.

Committee Note: This rule allows juveniles to be released with definite notice as to when they must return to court. This should help decrease the number of juveniles held in detention centers awaiting a court date. It also should provide a mechanism to divert juveniles to programs more efficiently. The change also should decrease the number of summons issued by the clerk.

RULE 8.440055. ORDERS

[No change in text]

RULE 8.060 [RESERVED]

CD. DISCOVERY

RULE 8.070060. DISCOVERY

(a) Required-disclosure ■ to-childy Notice of Discovery.

(1) If a child should elect to utilize the discovery process provided by these rules, including the taking of discovery depositions, the child shall file with the court and serve upon the prosecuting attorney notice of the child’s intent to participate in discovery. Such “notice of discovery” shall bind both the petitioner and the child to all discovery procedures contained in these rules. The child may take discovery depositions upon the filing of such notice. The child’s participating in the discovery process, including the child’s taking of the deposition of any person, shall be an election to participate in discovery. If any child knowingly or purposely shares in discovery obtained by a codefendant, the child shall be deemed to have elected to participate in discovery.

(4)(2) After the filing of a petition alleging a child to be delinquent, and prior to the adjudicatory hearing, within 5 days of service of the child’s notice of election to participate in discovery, the petitioner shall disclose to the child or his the child’s counsel and permit him to inspecting, copying, testing, and photographing of the following information and material within the petitioner’s possession or control:

(iA) [No change in text]

(iiB) 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 by himT or her and also includes any statement of any kind or manner made by such person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case but shall not include the notes from which such reports are compiled, or a stenographic, mechanical, electrical, or other recordingf-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.

(iiiC) [No change in text]

(ivD) [No change in text]

(vE) [No change in text]

(viF) [No change in text]

(viiG) [No change in text]

(viiiH) [No change in text]

(⅛1) [No change in text]

(xJ) [No change in text]

(xiK) [No change in text]

(2){3) [No change in text]

(g)(4) The petitioner shall perform the foregoing obligations in any manner mutually agreeable to him the petitioner and the child or as ordered by the court.

(4)(5) [No change in text]

(b)[No change]

(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.

(2) If the child demands discovery under section (a)(1), paragraphs (ii), (x), or (xi) of this rule, If the child elects to participate in discovery, the child shall disclose to the petitioner and permit him to inspecting, copying, testing, and photographing of the following information and material which corresponds to that which the child sought and which is in the child’s possession or control:

(iA) [No change in text]

(ÜB) [No change in text]

(iiiC) [No change in text]

The child shall make the foregoing disclosure 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 or her 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 subdivision (b). If a protective order is granted, the child may, within two 2 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 the demand and not be required to furnish reciprocal discovery.

(c), (1) [No change]

(2) [No change]

(iA) 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 attorneys or members of his their legal staff.

(iiB) 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 the informant’s identity will infringe upon the constitutional rights of the child.

(d), (1) [No change]

(iA) [No change in text]

(iiB) 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 where he or she resides, or is regularly employed, or regularly transacts his business in person.

(2) Procedure.

(iA) [No change in text]

(iiB) [No change in text]

(iiiC) [No change in text]

(ivD) 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.

(8) Use of Deposition. [No change in text]

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

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

(6) Physical Presence of Child. The child shall not be physically present at a deposition except upon stipulation of the parties or upon court order for good cause shown.

(A) The child may move the court for an order permitting physical presence of the child upon a showing of good cause. In ruling on such a motion, the court may consider the need for the physical presence of the child to obtain effective discovery, the intimidating effect of the child’s presence on the witness, if any, and any cost or inconvenience related to the child’s presence.

(B) In considering the child’s motion to be physically present at a discovery deposition, the court may consider alternative electronic or audio-visual means to protect the child’s ability to participate in discovery without the child's physical presence.

(7) Statement of Law Enforcement Officer. Upon stipulation of the parties and the consent of the witness, the statement of a law enforcement officer may be taken by telephone in lieu of deposition of the officer. In such case, the officer need not be under oath. The statement, however, shall be recorded and may be used for impeachment at trial as a prior inconsistent statement pursuant to the Florida Evidence Code.

(8)Videotaped Depositions. Depositions of children under the age of 16 shall be videotaped upon demand of any party unless otherwise ordered by the court. The court may order videotaping of a deposition or taking of a deposition of a witness with fragile emotional strength to be in the presence of the trial judge or a special master.

(e) [No change]

(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 the witness will absent himself or herself from the jurisdiction of the court, and that fafe the testimony is material, and that it is necessary to take his the 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 the reporter, 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 or herself 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), (1) [No change]

(iA) Aappear in a lineup*;

(iiB) Sspeak for identification by a witness to an offense*;

(iiiC) Bbe fingerprinted*;

(ivD) Rpose for photographs not involving reenactment of a scene*;

(vE) Ttry on articles of clothing*;

(viF) Bgermit the taking of specimens of material under his the fingernails*;

(viiG) Bpermit the taking of samples of his blood, hair, and other materials of his the body which involve no unreasonable intrusion thereof*;

(viiiH) Pprovide specimens of his handwriting*; or

(M) Ssubmit to a reasonable physical or medical inspection of his or her body.

(2) [No change]

(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 the party in time to make beneficial use thereof.

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

(i), (1) [No change]

(iA) ©order such party to comply with the discovery or inspection of materials not previously disclosed or produced;

(SB) ©grant a continuance;

(iiiC) ©grant a mistrial;

(ivD) ^prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(vE) Eenter such order as it deems just under the circumstances.

(2) [No change]

Committee Note: This amendment tracks Florida Rule of Criminal Procedure 3.220. There are some sections of the criminal rule that have not been adopted for juvenile proceedings and a few that have been conformed to present juvenile rules.

(d)(6) The provision that a defendant child not be present at a deposition is similar to the corresponding criminal rule.

(d)(8) Many witnesses in juvenile court are children under 16 and the videotaping of testimony is not always necessary. The amendment mandates videotaping on demand of a party.

RULE 8.080065. NOTICE OF DEFENSE OF ALIBI

(a) Notice to State Attorney. After a petition has been served the state attorney may demand in writing that the child, ⅛ who 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) Rebuttal Witness List. The state attorney shall, within five -(5) days of the receipt thereof, provide the child with a list of such witnesses as he to be chooses to calledy to rebut the alibi testimony.

(c) Sanctions. 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 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) Waiver of Rule. For good cause shown, the court may waive the requirements of this rule.

E. ARRAIGNMENTS AND PLEAS RULE 8.070. ARRAIGNMENTS

Prior to the adjudicatory hearing the court may conduct a hearing to determine whether a guilty, nolo contendere, or not guilty plea to the petition shall be entered and whether the child is represented by counsel orentitled to appointed counsel as provided by law. If a plea of guilty or nolo contendere is entered, the court shall proceed as set forth under rule 8.115, disposition hearings. If a plea of not guilty is entered, the court shall set an adjudicatory hearing within the period of time provided by law and appoint counsel when required. If the child is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.

Committee Note: This rule creates an arraignment proceeding that is referred to in section 39.044(7), Florida Statutes.

RULE 8.430075. RESPONSIVE PLEADINGS AND MOTIONS PLEAS

(a) Pleas, [No change in text]

(4)(a) Acceptance of Plea. [No change in text]

(g)(b) Plan of Proposed Treatment, Training, or Conduct. [No change in text]

(i)(l) The plan must be in writing, agreed to and signed in all cases by the state attorney, the child, and, when represented, by his the child’s counsel, and, unless excused by the court, by the parents or custodian. An authorized agent of the supervising agency involved shall indicate whether the agency recommends the acceptance of the plan.

(h)(2) [No change in text]

(iii)(3) [No change in text]

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

(vi)(6) [No change in text]

(3)(c) Written Answer. A written answer admitting or denying the allegations of the petition may be filed by the child joined by a parent, custodia^ 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 the right to counsel, of his the right to remain silent, and of the possible dispositions available to the court and shall include a consent to a pre-dispositional predispositional study. Upon the filing of such an answer a hearing for adjudication or adjudication and disposition shall be set at the earliest practicable time.

(4)(d) Entry of Plea by Court. [No change in text]

(§)(e) Withdrawal of Plea. [No change in text]

RULE 8.080. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a) Voluntariness. Before accepting a plea of guilty or nolo contendere, the court shall determine that the plea is knowingly and voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the court in this determination.

(b) Determination by Court. The court, when making this determination, should place the child under oath and shall address the child personally. The court shall determine that the child understands the following:

(1) The nature of the charge to which the plea is offered and the possible dispositions available to the court.

(2) If the child is not represented by an attorney, that the child has the right to be represented by an attorney at every stage of the proceedings and, if necessary, one will be appointed.

(3) That the child has the right to plead not guilty, or to persist in that plea if it had already been made, and that the child has the right to an adjudicatory hearing and at that hearing has the right to the assistance of counsel, the right to compel the attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

(4) That, if the child pleads guilty or nolo contendere, without express reservation of the right to appeal, the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, is relinquished, but the right to review by appropriate collateral attack is not impaired.

(5) That, if the child pleads guilty or nolo contendere, there will not be a further adjudicatory hearing of any kind, so that by pleading so the right to an adjudicatory hearing is waived.

(6) That, if the child pleads guilty or nolo contendere, the court may ask the child questions about the offense to which the child has pleaded, and, if those questions are answered under oath, on the record, the answers may later be used against the child in a prosecution for perjury.

(7) The complete terms of any plea agreement including specifically all obligations the child will incur as a result.

(c) Acknowledgment by Child. Before the court accepts a guilty or nolo conten-dere plea, the court must determine that the child either:

(1) acknowledges guilt; or

(2) acknowledges that the plea is in the child’s best interest, while maintaining innocence.

(d) Of Record. These proceedings shall be of record.

(e) When Binding. No plea offer or negotiation is binding until it is accepted by the court after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

(f) Failure to Follow Procedures. Failure to follow any of the procedures in this rule shall not render a plea void, absent a showing of prejudice.

F. MOTIONS AND SERVICE OF PLEADINGS

RULE 8.130(b) — (e)085. PREHEARING MOTIONS AND SERVICE

(b)(a) Pre-Hearing Prehearing 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 and hfe the party’s 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 Rrule 8.040013 may be continued in detention under the said order upon the representation that a new or amended petition will be filed.

(3) [No change]

(iA) Contents, [No change in text]

(iiB) Hearing, [No change in text]

(4) Motion to Sever. A motion may be made for the severance of two 2 or more counts in a multi-count petition, or for the severance of the cases of twn 2 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) [No change]

(6) Sworn Motions to Dismiss. Before the adjudicatory hearing the court may entertain a motion to dismiss on the ground that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the child. The facts on which such motion is based shall be specifically alleged and the motion sworn to by the child. The motion shall be filed a reasonable time before the date of the adjudicatory hearing. The state may traverse or demur to this motion. Factual matters alleged in it shall be deemed admitted unless specifically denied by the state in a traverse. The court, in its discretion, may receive evidence on any issue of fact necessary to decide the motion. The motion shall be dismissed if the state files a written traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss. Any demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

(e)(b) Service of Pleadings and Papers.

(1) ServiceT When Required. [No change in text]

(2) ServiG% 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-hfe or by mailing it to the attorney or party’s 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:

(iA) Hhanding it to the attorney or party;

(iiB) Lleaving it at the attorney’s office with the person in charge thereof;

(iiiC) lif there is no one in charge of the office, leaving it in a conspicuous place therein; or

(ivD) lif the office is closed or the person to serve has no office, leaving it at his or her usual place of abode with some person of hfe the family above fifteen 15 years of age and informing such person of the contents thereof.

(3) [No change]

(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 court may permit the papers to be filed with hha the court in which event he shall-note thereon the filing date shall be noted thereon and the papers shall be transmitted them to the office of the clerk.

(5) [No change]

(6) People Who May Certify Service. 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, court, or authorized agent of the Department of Health and Rehabilitative Services in the form provided in subdivision (5).

(d)(c) [No change]

(e)(d) 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)(e) Pleading to be Signed by Attorney. Every written paper or pleading of a party represented by an attorney shall be signed in hfe the attorney’s individual name by such attorney, whose address and telephone number, including area code, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida. He The attorney may be required by an order of court to vouch for hfe the 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 hfe the attorney that he-has-read the paper or pleading has been read; that¿ to the best of his or her 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)(f) Pleading to be Signed by Unrepresented Party. A party who has no attorney but represents himself or herself shall sign hfe tiie written pleading or other paper and state his or her address and telephone number, including area code.

Committee Note: (a)(6) This creates a procedure for dismissal similar to Florida Rule of Criminal Procedure 3.190(c)(4).

RULE 8.48090. SPEEDY TRIAL

(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within ninety-(90) days of the earliestr of the following dates:

(1), (2) [No change]

(b) Dismissal. If an adjudicatory hearing has not commenced within ninety~(90) days, upon motion timely filed with the court and served upon the prosecuting attorney, the respondent shall be entitled to the appropriate remedy as set forth in section subdivision (j) below. The court before granting such motion shall make the required inquiry under subsection subdivision (d) of this rule.

(c) Commencement. A child shall be deemed to have been brought to trial if the adjudicatory hearing begins before the judge court within the time provided.

(d) Motion to Dismiss. If the adjudicatory hearing is not commenced within the periods of time established, the respondent shall be entitled to the appropriate remedy as set forth in section subdivision (j) below unless:

(1) The child has voluntarily waived his the right to speedy trial*.

(2) An extension of time has been ordered under subdivision (e)*.

(3) The failure to hold an adjudicatory-hearing is attributable to the child, a corespondent in the same adjudicatory hearing, or their counsel*.

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

(iA) the child or his the child’s counsel fails to attend a proceeding when their presence is required; or

(iiB) the child or his the child’s counsel is not ready for the adjudicatory hearing on the date it is scheduled.

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

(5) The demand referred to in section subdivision (f) is invalid.

(6)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) Extension of Time. The period of time established by subdivision (a) may be extended as follows:

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

(2) Exceptional — Circumstances, [No change in text]

(iA) [No change in text]

(iiB) [No change in text]

(iiiC) [No change in text]

(ivD) [No change in text]

(vE) [No change in text]

(viF) [No change in text]

(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) [No change]

(f) Speedy Trial Upon Demand. Except as otherwise provided by this rule and subject to the limitations imposed by section subdivision (g)L the child shall have the right to demand a trial within sixty (60) days, by written demand for speedy trial filed with the court and service upon the prosecuting attorney.

(1) No later than five (5) days from the filing of a demand for speedy trial, the court shall set the matter for report, with notice to all parties, for the express purpose of announcing in open court, receipt of the demand and of setting the case for trial.

(2) At the report the court shall set the case for trial to commence at a date no less than five (5) days nor more than forty-five (45) days from the date of the report.

(3) The failure of the court to hold such a report date on a demand which has been properly filed shall not interrupt the running of any time periods under this section subdivision (f).

(4) In the event that the child shall not have been brought to trial within fifty (50) days of the filing of the demand, the child shall have the right to the appropriate remedy as set forth in section subdivision (j) beloW.

(g) Demand for Speedy Trial; Effect. A demand for speedy trial shall be deemed a pleading by the respondent that he or she is available for the adjudicatory hearing, has diligently investigated his ⅛§ 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 continuance 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 defense counsel.

(h) Dismissal After Demand. If an adjudicatory hearing has not commenced within fifty-(50) 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 have the right to the appropriate remedy as set forth in section subdivision (j) below; provided the court has made the required inquiry under subdivision (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. If the child is not brought to trial within the prescribed time periods, the child shall be entitled to the appropriate remedy as set forth in section subdivision (j) below.

(j)[No change]

(1) No remedy shall be granted to any respondent under this Rrule until the court shall have made the required inquiry under section subdivision (d).

(2) The respondent may, at any time after the expiration of the prescribed time period, file a motion for discharge. Upon filing the motion the respondent shall simultaneously file a notice of hearing. The motion for discharge and its notice of hearing shall be served upon the prosecuting attorney.

(3) No later than five (5) days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in section subdivision (d) exists, shall order that the respondent be brought to trial within tea-(10) days. If the respondent is not brought to trial within the ten (10)-day 10-day period through no fault of the respondent, the respondent shall be forever discharged from the crime.

Committee Note: (j)(2) This rule requires a notice of hearing at the time of filing the motion for discharge to ensure that the child’s motion is heard in a timely manner. A dissenting opinion in the committee was that this change does not protect the child’s rights but merely ensures that the case is not dismissed because of clerical error.

RULE 8.4Í0095. PROCEDURE WHEN CHILD BELIEVED TO BE INCOMPETENT

(a), (1) [No change]

(2) If at the hearing provided for in subdivision (a)(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 subdivision (a)(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.

(iA) 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 nondelinquent treatment for the child in order to restore the child’s competence to proceed with an adjudicatory hearing.

(ÜB) If the child is not hospitalized, or upon hfe the child’s 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) [No change]

(b) At Time of the Offense.

(1) If the child named in the petition intends to plead insanity as a defense, he or she 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 or she can the nature of the insanity he expects to prove expected to be proved and the names and addresses of witnesses by whom he expects expected 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) [No change]

(c) [No change]

(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 sor 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) [No change]

G. HEARINGS

RULE 8.220100. GENERAL PROVISIONS FOR HEARINGS

Initial paragraph [No change]

(a)[No change]

(b)Absence of the Child. If the child is present at the beginning of a hearing and shall thereafter during the progress of the hearing voluntarily absent himself or herself from the presence of the court without leave of the court, or is removed from the presence of the court because of disruptive conduct during the hearing, the hearing shall not thereby be postponed or delayed, but shall proceed in all respects as if the child were present in court at all times.

(c), (d) [No change]

(e) Record of Testimony. A record of the testimony in all hearings shall be made by an official court reporter, a court approved stenographer, or by a recording device. The records shall be preserved for five 5 years from the date of the hearing. Official records of testimony shall be transcribed only upon order of the court.

(f) [No change]

RULE 8.450105. 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 in the form provided by law prior to the commencement of an adjudicatory hearing. 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 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 the child is located.

(b), (1) [No change]

(2) Following the filing of the motion of the state attorney, summons shall be issued and served in conformity with the provision of rule 8.420040. A copy of the motion and a copy of the delinquency petition, if not already served, shall be attached to each summons.

(3), (4) [No change]

(5) After hearing as provided in this ruleT:

(iA) tThe 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 the child as an adult is located.

(SB) The court may enter an order denying waiver of jurisdiction. If the 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 subdivision (a) or (b) above the court shall fix bail. A certified copy of the order shall be furnished to the sheriff. RULE 8.490110. ADJUDICATORY HEARINGS

(a) — (c) [No change]

(d) Testimony. The child may be sworn and testify in his or her own behalf. He The child may be cross-examined as other witnesses. No child shall be compelled to give testimony against himself or herself, nor shall any prosecuting attorney be permitted to comment on the failure of the child to testify in his or her own behalf. A child offering no testimony in his or her own behalf except .his or her own shall be entitled to the concluding argument.

(e) Joint and Separate Trials. When two 2 or more children are alleged to have committed a delinquent act or violation of law, they shall be tried jointly unless the court in its discretion orders separate trials.

(f) — (k) [No change]

RULE 8.200115. DISPOSITION HEARING

(a) [No change]

(b) Disclosure to - Child~or — Parent. The child, Ms the child’s attorney, and Ms the child’s parent or custodian shall be entitled to disclosure of all information in the predisposition report.

(c) Fingerprints. The child’s fingerprints shall be affixed to the order of disposition.

(d) Procedure for Placement as Serious or Habitual Offender.

(1) If the state elects to proceed under this subdivision, it shall file a petition to seek serious or habitual juvenile offender placement as provided by law.

(2) The petition shall be in writing and shall state the reasons why the child should be placed as a serious or habitual juvenile offender. A copy of the petition shall be served upon the child, the child’s attorney, and a representative of the Department of Health and Rehabilitative Services.

(3) The child shall not be placed as a serious or habitual juvenile offender unless the child is adjudicated delinquent, is committed to the department, and meets the criteria as prescribed by law. The court shall not make a determination of the child’s placement as a serious or habitual juvenile offender without allowing reasonable time for preparation of a response on behalf of the child.

Committee Note: (c) Section 39.032(3)(e)5, Florida Statutes, requires the court to fingerprint any child who is adjudicated or has adjudication withheld for a felony. This rule extends this requirement to all dispositions. Sentencing guidelines include scorable points for misdemeanor offenses as well as for felonies. This procedure also should assist in identifying juveniles who use false names and birthdates, which can result in the arrest of an innocent child whose name was used by the offender.

(d) Section 39.09(5), Florida Statutes, creates procedures to have a child placed in a serious or habitual juvenile offender program. This section allows for filing of a petition, service, and a reasonable time for preparation of a response on behalf of the child.

RULE 8.210120. POST DISPOSITION-POSTDISPOSITION HEARING

(a) Revocation of Community Control Programs. A child who has been placed in a community control program may be brought before the court by the agent supervising his the child’s probation community control or by the state attorney on a petition alleging the violation of the program. All interested persons, including the child, shall have an opportunity to be heard. After such hearing, the court shall enter an order revoking, modifying, terminating, or continuing the community control program. Upon the revocation of the program, the court shall, when the child has been placed in a community control program and adjudication has been withheld, adjudicate the child delinquent. In all cases after a revocation of the program, the court shall enter a new disposition order.

(b) [No change]

H. RELIEF FROM ORDERS AND JUDGMENTS

RULE 8.230130. MOTION FOR REHEARING

(a) [No change]

(b) Time and Method.

(1) A motion for rehearing may be made and ruled upon immediately after the court announces its judgment but must be made within ten--(10) days of the entry of the order being challenged.

(2), (3) [No change]

(c), (1) [No change]

(2) The court on its own initiative may vacate or modify any order within the time limitation provided in subdivision (b) above. RULE 8.240135. CLERICAL MISTAKES

[No change in text]

RULE 8.250140. EXTRAORDINARY RELIEF

(a) Basis. On motion* and upon such items as are just, the court may relieve a party or his the party’s legal representative from an order, judgment, or proceeding for the following reasons:

(1) Mistake, inadvertanee, surprise, or excusable neglect).

(2) — (4) [No change]

(b) Time. The motion shall be made within a reasonable timeT and¿ for reasons (1), (2), and (3), not more than one 1 year after the judgment, order, or proceeding was taken.

RULE 8.250145. SUPERSEDEAS ON APPEAL

[No change in text]

I. CONTEMPT

RULE 8.250150. DIRECT CONTEMPT

(a) Direct Contempt. A contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge court shall inform the person accused of the accusation against him and inquire as to whether he has there is any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The accused shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge court and entered of record. Sentence shall be pronounced in open court. Rule 8,280. — INDIRECT-CONTEMPT

(b) Indirect Contempt. An indirect contempt may be prosecuted in the following manner: charged and requiring him the accused to appear before the court to show cause why he or she should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for the preparation of a defense after service of the order on the one accused. It shall be served in the same manner as a summons. Nothing herein shall be construed to prevent the one accused of contempt from waiving the service of process.

(b)(2) Motions; Answer. The accused, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars, or answer such order by way of explanation or defense. All motions and the answers shall be in writing unless specified otherwise by the judge court. The accused’s omission to file a motion or answer shall not be deemed an admission of guilt of the contempt charged.

(e)(3) Order of Arrest; Bail. The judge court may issue an order of arrest of the one accused of contempt if the judge court has reason to believe he the accused will not appear in response to the order to show cause. The accused shall be admitted to bail in the manner provided by law in criminal cases.

(d)(4) Arraignment; Hearing. The accused may be arraigned at the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the accused shall follow a plea of not guilty. The judge court may conduct a hearing without assistance of counsel or may be assisted by the state attorney or by an attorney appointed for that purpose. The accused is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his or her own defense. All issues of law and fact shall be determined by the judge court.

(e)(5) Disqualification of the Judge. If the contempt charged involves disrespect to or criticism of a judge, he the judge shall be disqualified by the Cchief Jjudge of the circuit.

(f)(6) Verdict; Judgment. At the conclusion of the hearing the judg