In re Amendments to the Florida Rules of Criminal Procedure (606 So. 2d 227, 1992)

PER CURIAM.

The Florida Rules of Criminal Procedure Committee petitions this Court to approve its quadrennial report of proposed changes to the Florida Rules of Criminal Procedure. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution.

In its report, the rules committee proposes amendment to rules 3.010, 3.111, 3.125, 3.160, 3.190, 3.191, 3.200, 3.210, 3.211, 3.212, 3.213, 3.215, 3.216, 3.217, 3.219, 3.220, 3.390, 3.692 and form 3.989. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed amendments were submitted to The Board of Governors of The Florida Bar. The Board of Governors unanimously recommended approval. The proposed amendments were published for comment; however, no comments were filed.

At oral argument, it was pointed out that rule 3.692 and form 3.989, dealing with expungement, needed further amendment due to recent statutory amendments. It was also pointed out that the rules committee wished to submit amendments to rule 3.986, Forms Related to Judgment and Sentence. A supplemental petition containing the proposed amendments to rule 3.986 has since been filed. However, a supplemental petition containing the proposed amendments to rules 3.692 and 3.989 will not be filed until after October 1, 1992.

After reviewing the rules committee’s report of proposed changes and the supplemental petition, and hearing oral argument on the matter, we approve the appended amendments to the Florida Rules of Criminal Procedure. The appended amendments include the following substantive changes as proposed by the rules committee as well as stylistic and editorial changes that are made to, among other things, ensure that the rules are gender neutral.

Rule 3.010, Scope, is amended to conform the wording of the rule to a prior order of this Court and provide consistency with other rules. Subdivision (e) of rule 3.111, Counsel to Indigents, is amended to specify the duties of defense counsel who wish to withdraw from representation after judgment and sentence. Rule 3.125, Notice to Appear, subdivisions (k), (l), (m) and rule 3.220, Discovery, subdivisions (b)(1), (b)(2), (c)(1), (h)(1) are amended to provide the same discovery to all individuals charged with criminal violations, regardless of the nature of the charging document. Specifically the amendments provide the same quantity of discovery to those charged by a notice to appear.

The amendment to rule 3.212(c)(5)(ii) substitutes “shall” for “may” so as to require the trial court to order the administrator of the facility where an incompetent defendant has been committed to report to the court on the issues of competency when the court has reasonable grounds to believe the defendant may have regained competency to proceed or no longer meets the criteria for commitment. Subdivision (g) of rule 3.350, Peremptory Challenges, is amended to clarify that it is within a trial court’s discretion to allow additional peremptory challenges. Subdivision (d) of rule 3.390, Jury Instructions, is amended to clarify its provisions. Rule 3.986, Forms Related to Judgment and Sentence, is amended to conform with various provisions of Florida Statutes. The Form for Judgment is amended to add a signature line required by section 921.241, Florida Statutes (1991). The Form for Charges, Costs, and Fees is amended to increase the amount to be paid into the Crimes Compensation Trust Fund as required by chapter 92-107, Laws of Florida. The Form for Sentencing is amended to add a checkoff paragraph imposing mandatory minimum sentence for violation of section 775.0875, Florida Statutes (1991). Rule 3.692, Petition to Seal or Expunge, and form 3.989, Petition and Order to Expunge or Seal and Affidavit, will be amended at a later date.

New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 1993 at 12:01 a.m.

It is so ordered.

BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.

APPENDIX I

I. SCOPE, PURPOSE, AND CONSTRUCTION

RULE 3.010. SCOPE

These rules shall govern the procedure in all criminal proceedings in Sstate courts including proceedings involving direct and indirect criminal contempt, including proceedings under Rrule 3.850 hereof, and including vehicular and pedestrian traffic offenses insofar as these Rrules are made applicable by the Florida Rules of Practice and Procedure for Traffic Courts. These Rrules shall not apply to direct or indirect criminal contempt of a court acting in any appellate capacity. These Rrules shall not apply to Rrules 3.811 and 3.812 hereof. These Rrules may be cited shall be known as the Florida Rules of Criminal Procedure and abbreviatedmay be cited as Fla.R. Crim.P.

Committee Notes

1968 Adoption. These rules are not intended to apply to municipal courts, but are intended to apply to all state courts where “crimes” are charged.

1972 Amendment. Amended to provide for applicability of Rrules to Vvehicular Ttraffic ©offenses, when made so by the Ttraffic ©court Rrules.

1992 Amendment. The rule is amended to refer to “Florida Rules of Criminal Procedure” and “Fla.R.Crim.P.” rather than to “Rules of Criminal Procedure” and “R.Crim.P.” Although the Florida Bar Rules of Criminal Procedure already contains this language, the West publications, Florida Rules of Court (1991) and Florida Criminal Law and Rules (1991), do not. The published version of rule 3.010, In re Florida Rules of Criminal Procedure, 272 So.2d 65 (FIa.1973), and the single published amendment to the rule, In re Amendments to the Florida Rules of Criminal Procedure, 518 So.2d 256 (Fla.1987), also do not contain these additions. The Florida Bar publication, Florida Criminal Rules and Practice, in a commentary to rule 3.010, indicates that the Florida Supreme Court changed the citation form in an order effective January 1, 1977. The commentary indicates that the order stated in pertinent part:

In order to provide the clarity of citations in briefs filed in this court and other legal writings, the following amendments to the procedural rules adopted by this court pursuant to Article V, Section 2(a), of the Florida Constitution are hereby adopted.

The last sentence of Rule 3.010 of the Florida Rules of Criminal Procedure is amended as follows: “These Rules shall be known may be cited as the Florida Rules of Criminal Procedure and may be cited abbreviated as R.Crim, RrFIa.R.Crim.P.”

However, these changes were apparently inadvertently omitted when the 1987 amendments were published. The proposed 1992 amendments again incorporate into the rule the language set out in the court’s 1977 order.

The amendments would enable clearer identification of the rules and achieve consistency of style with other sets of court rules, in particular, rule 9.800(i), Fla.R.App. P., which provides that the proper citation to the Florida Rules of Criminal Procedure is Fla.R.Crim.P.

II. GENERAL PROVISIONS

RULE 3.030. SERVICE OF PLEADINGS AND PAPERS

(a) Service; When Required. Every pleading subsequent to the initial indictment or information upon which a defendant is to be tried unless the court otherwise orders, and every order not entered in open court, every written motion unless it is one as to which a hearing ex parte is authorized, and every written notice, demand;, and similar paper shall be served on each party; however, nothing herein shall be construed to require that a plea of not guilty shall be in writing.

(b) Same; How Made. Where When under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to himthe party or by mailing it to him at histhe party’s last known address, or, if no address is known, by leaving it with the clerk of the court who shall place it in the court file. Delivery of a copy within this rule shall mean:

(1) handing it to the attorney or to the party; orT

(2) leaving it at his the attorney’s office with his the secretary or other person in charge thereof; orT

(3) if there is no one in charge, leaving it in a conspicuous place therein; or7

(4) if the office is closed or the person to be served has no office, leaving it at histhe person’s usual place of abode with some person of-bisa family member above fif-tee»15 years of age and informing suehthat person of the contents thereof. Service by mail shall be deemed complete upon mailing.

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

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

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

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

Attorney-

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

Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Amendment. Same as prior rule; (a) amended by deleting reference to trial on affidavit.

RULE 3.040. COMPUTATION OF TIME

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is a Saturday, Sunday^ or a legal holiday, in which event the period shall run until the end of the next day whichthat is neither a Saturday, Sunday¿ nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays^ and legal holidays shall be excluded in the computation, except for the periods of time of less than 7 days contained in Rrules 3.130, 3.132(a) and (c), and 3.133(a).

Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Adoption Amendment. Same as prior rule.

1988 Amendment. The 1983 amendments resulted in the reallocation of the time periods in Srule 3.131 to Srule 3.133, and also added an important 5-day period in the new rule regarding pretrial detention in Srule 3.132.

Court Commentary

1975 Amendment. Underlined portion is the only change. The effect is to remove the 72-hour provision of proposed rule 3.131 from the Saturday, Sunday, and legal holiday exception.

RULE 3.050. ENLARGEMENT OF TIME

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period1 permit the act to be done wherewhen the failure to act was the result of excusable neglect; but it may not, except as provided by statute or elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal.

Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Amendment. Same as prior rule. RULE 3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon himon the party and the notice or paper is served upon himon the party by mail, 3 days shall be added to the prescribed period.

Committee Notes

1968 Adoption. This is the same as rule 1.6(e), Florida Rules of Civil Procedure, except for the omission of subdivision (c) of the civil rules, which appears to be inapplicable to criminal cases.

1972 Amendment. Same as prior rule. RULE 3.111. PROVIDING COUNSEL TO INDIGENTS

(a) When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel appointed when hethe person is formally charged with an offense, or as soon as feasible after custodial restraint^ or upon hisat the first appearance before a committing magistrate, whichever occurs earliest.

(b) Cases Applicable.

(1) Counsel shall be provided to indigent persons in all prosecutions for offenses punishable by imprisonment (or by incarceration in a juvenile corrections institution) including appeals from the conviction thereof. Counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or violation of a municipal ordinance if the judge, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned m the-event- -he isif convicted.

(2) Counsel may be provided to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including postconviction proceedings and appeals therefrom, extradition proceedings, mental competency proceedings, and other proceedings whichthat are adversary in nature, regardless of the designation of the court in which they occur or the classification of the proceedings as civil or criminal.

(3) Counsel may be provided to a partially indigent person upon his request provided that tiie person shall defray that portion of the cost of such representation and the reasonable costs of investigation as he or she is able to without substantial hardship to himselfthe person or faisthe person’s family, as directed by the court.

(4) “Indigent” as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himselfthe person or faisthe person’s family; “partially indigent” as used herein shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to himselfthe person or faisthe person’s family.

(5) The court shall, prior to appointing a public defender^

(i)(A) linform the accused that if the public defender is appointed, a lien for the services rendered by the public defender may be imposed pursuant-te-under section 27.56, Florida Statutes (1979);

(ii)(B) Mmake inquiry into the financial status of the accused in a manner not inconsistent with the guidelines established by section 27.52, Florida Statutes (-1979). The accused shall respond to the inquiry under oath;

(iii)(C) ©require the accused to execute an affidavit of insolvency in the format provided by section 27.52, Florida Statutes (1979),

(c) Duty of Booking Officer. In addition to any other duty, the officer who commits a defendant to custody has the following duties:

(1)HeThe officer shall immediately advise the defendant:

(1)(A) of faisthe right to counsel;

(ii)(B) that if the defendant is unable to pay a lawyer, one will be provided immediately at no charge.

(2) If the defendant requests counsel or advises the officer he or she cannot afford counsel, saidthe officer shall immediately and effectively place saidthe defendant in communication with the (office of) ©public ©defender of the circuit in which the arrest was made.

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

(4)The ©public ©defender of each ¿judicial ©circuit may upon-beinginterview a defendant when contacted by, or on behalf of¿ a defendant who is, or represents him-selfclaims to be¿ indigent as defined by lawT forthwith interview said-defendant and.

(i)(A) If the defendant is in custody and reasonably appears to be indigent, the ©public ©defender shall tender to him such advice as is indicated by the facts of the case;., seek the setting of a reasonable bail,, and otherwise represent saebthe defendant pending a formal judicial determination of indigency.

(ii)(B) If the defendant is at liberty on bail or otherwise not in custody, the ©public ©defender shall elicit only such information from the defendant as may be reasonably relevant to the question of indigency and shall immediately seek a formal judicial determination of indigency. If the court finds the defendant indigent, it shall immediately appoint counsel to represent saidthe defendant.

(d) Waiver of Counsel.

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

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

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

(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than tw©2 attesting witnesses. SaidThe witnesses shall attest the voluntary execution thereof.

(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

(e) Withdrawal of Defense Counsel After Judgment and Sentence. Withdrawal of defense counsel-af-ter-judgment and sentence is governed by Florida Rule-of-Appellate Procedure -9A4Q(b)(3).The attorney of record for a defendant in a criminal proceeding shall not be relieved of any duties, nor be permitted to withdraw as counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until after:

(1) the filing of:

(A) a notice of appeal;

(B) a statement of judicial acts to be reviewed, if a transcript will require the expenditure of public funds;

(C) directions to the clerk, if necessary; and

(D) a designation of that portion of the reporter’s transcript that supports the statement of judicial acts to be reviewed, if a transcript will require expenditure of public funds; or

(2) the time has expired for filing of a notice of appeal, and no such notice has been filed.

Committee Notes

1972 Adoption. Part 1 of the ABA Standard relating to ©providing ©defense Sservices deals with the general philosophy for providing criminal defense services and while the committee felt that the philosophy should apply to the Florida Rules of Criminal Procedure, the standards were not in such form to be the subject of that particular rule. Since the standards deal with the national situation, contained in them were alternative methods of providing defense services, h-ed.e., assigned counsel vs. defender system; but, Florida, already having a defender system, need not be concerned with the assigned counsel system.

(a) Taken from the first sentence of ABA Standard 5.1. There was considerable discussion within the committee concerning the time wheawithin which counsel should be appointed and who should notify defendant’s counsel. The commentary in the ABA Standard under 5.1a, b, convinced the committee to adopt the language here contained.

(b) Standard 4.1 provides that counsel should be provided in all criminal cases punishable by loss of liberty, except those types where such punishment is not likely to be imposed. The committee determined that the philosophy of such Sstandard should be recommended to the Florida Supreme Court. The committee determined that possible deprivation of liberty for any period makes a case serious enough that the accused should have the right to counsel.

(c) Based «pon tiie recommendation of ABA Standard 5.1b and the commentary thereunder which provides that implementation of a rule for providing the defendant with counsel should not be limited to providing a means for the accused himself to contact a lawyer.

(d) From Sstandard 7.2 and the commentaries thereunder.

1980 Amendment. Modification of the existing Rrule (the addition of (b)(5)(A)-(C)) provides a greater degree of uniformity in appointing counsel to indigent defendants. The defendant is put on notice of the lien for public defender services and must give financial information under oath.

A survey of Florida judicial circuits by the Committee on Representation of Indigents of the Criminal Law Section (1978-79) disclosed the fact that several circuits had no procedure for determining indigen-cy and that there were circuits in which no affidavits of insolvency were executed (and no legal basis for establishing or collecting lien monies).

1992 Amendment. In light of State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (FIa.1990), in which the supreme court pronounced that motions seeking belated direct appeal based on ineffective assistance of counsel should be filed in the trial court pursuant to rule 3.850, the committee recommends that rule 3.111(e) be amended to detail with specificity defense counsel’s duties to perfect an appeal prior to withdrawing after judgment and sentence. The present provision merely notes that such withdrawal is governed by Florida Rule of Appellate Procedure 9.140(b)(3).

RULE 3.115. DUTIES OF STATE ATTORNEY; CRIMINAL INTAKE

The state attorney shall provide the personnel or procedure for criminal intake in the judicial system. All sworn complaints charging the commission of a criminal offense shall be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceedings. This rule shall take effect at 11:59 p.m.,Eastern Standard Time,-January 1, 1973,-

III. PRELIMINARY PROCEEDINGS

RULE 3.120. COMMITTING MAGISTRATE

Each state and county judge is a committing magistrate and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when the complaint states facts whiohthat show that such person violated a criminal law of this Sstate within the jurisdiction of the magistrate to whom the complaint is presented. The magistrate may take testimony under oath to determine if there is reasonable ground to believe the complaint is true. The magistrate may commit the offender to jail, may order the defendant to appear before the proper court to answer the charge in the complaint, or may discharge faimthe defendant from custody or from any undertaking to appear. The magistrate may authorize the clerk to issue a summons.

Committee Notes

1968 Adoption. This is substantially the same as part of section 901.01, Florida Statutes. (The remaining part should be retained as a statute.) It differs from the statute by requiring the complaint to be in writing and by identifying the initiating instrument as a “complaint,” thus adopting the federal terminology which is more meaningful and modern. Some doubt was expressed as to whether the terms of the statute incorporated in the rule are within the rulemaking power of the Supreme Court.

1972 RevisionAmendment. Substantially same as former rule. Altered to incorporate the provision for testimony under oath formerly contained in Rrule 3.121(a), and authorizes the execution of the affidavit before a notary or other persons authorized to administer oaths.

RULE 3.121, ARREST WARRANT

(a) Issuance. An arrest warrant, when issued, shall:

(1) Bbe in writing and in the name of the State of Florida;

(2) Sset forth substantially the nature of the offense;

(3) Ccommand that the person against whom the complaint was made be arrested and brought before a magistrate;

(4) Sspecify the name of the person to be arrested or, if histhe name is unknown to the magistrate, designate saehthe person by any name or description by which faethe person can be identified with reasonable certainty;

(5) Sstate the date when issued and the Gcounty where issued;

(6) Bbe signed by the magistrate with the title of histhe office; and

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

(b) Amendment. No arrest warrant shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but; the warrant may be amended by the magistrate to remedy such defect.

Committee Notes

1968 Adoption, (a) This is substantially the same as section 901.02, Florida Statutes, except that the rule requires a written complaint. Also, the rule does not incorporate that seldom used part of the statute that permits the magistrate to issue an arrest warrant upon affidavits made before the prosecuting attorney.

(b) This is the same as section 901.03, Florida Statutes.

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

1972 RevisionAmendment. (a) of * * * {former] rule has been deleted, as its substance is now contained in Rrules 3.120 and 3.130; (b) has been renumbered as (a); (c) has been renumbered as (b).

RULE 3.125, NOTICE TO APPEAR

(a) Definition. Notice to appear means, unless indicated otherwise, a written order issued by a law enforcement officer in lieu of physical arrest requiring a person 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 person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county, and demand to be taken before a magistrate is not made, notice to appear may be issued by the arresting officer unless:

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

(2) Tthe accused refuses to sign the notice to appear;

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

(4) Tthe accused has no ties with the jurisdiction reasonably sufficient to assure faisthe accused's appearance or there is substantial risk that hethe accused will refuse to respond to the notice;

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

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

(c) By Booking Officer. If the arresting officer does not issue notice to appear because of one of the exceptions listed in (b)(1) andthrough (b)(6) and takes the accused to police headquarters, the booking officer may issue notice to appear if hethe officer determines that there is a likelihood that the accused will appear as directed, based upon a reasonable investigation of: the following:

(1) Rresidence and length of residence in the community;

(2) ©family ties in the community;

(3) Eemployment record;

(4) ^character and mental condition;

(5) ©past record of convictions; or

(6) ©past history of appearance at court proceedings.

(d) How and When Served. If notice to appear is issued it shall be prepared in quadruplicate. The officer shall deliver enel copy of the notice to appear to the arrested person and suehthe person, in-order to secure release, shall give hisa written promise to appear in court by signing the three3 remaining copies: enel to be retained by the officer and tw©2 to be filed with the clerk of the court. These twe2 copies shall be sworn to by the arresting officer before a Nnotary ©public or a ©deputy Cclerk. If notice to appear is issued pursuant to subsectionsubdivision (b), the notice shall be issued immediately upon arrest. If notice to appear is issued pursuant to subsectionsubdivision (c), the notice shall be issued immediately upon completion of the investigation. The arresting officerT or other duly authorized official shall then release the person arrested from custody.

(e) Copy to the Clerk of the Court. With the sworn Nnotice to Aappear the arresting officer shall file with the clerk a list of witnesses and their addresses7 and a list of tangible evidence in the cause. One copy shall be retained by the officer and tw©2 copies shall be filed with the clerk of the court.

(f) Copy to State Attorney. The clerk shall deliver esel copy of the notice to appear and schedule of witnesses and evidence filed therewith to the Sstate Aattor-ney.

(g) Contents. If notice to appear is issued it shall contain the following informa-

(1) Nname and address of the accused;

(2) Bdate of offense;

(3) ©offense(s) charged — by statute and municipal ordinance if applicable;

(4) ©counts of each offense;

(5) Ttime and place wfaerethat the accused is to appear in court;

(6) Nname and address of the trial court having jurisdiction to try the offense(s) charged;

(7) Nname of the arresting officer;

(8) name(s) of Aany other person(s) charged at the same time; and

(9) Ssignature of the accused.

(h) Failure to Appear. Whenlf a person signs a written notice to appear and fails to respond to the notice to appear, a warrant of arrest shall be issued pursuant to Rrule 3.121.

(i) Traffic Violations Excluded. Nothing contained herein shall prevent the operation of a traffic violations bureau, the issuance of citations for traffic violations^ or any procedure pursuant to ©chapter 316, Florida Statutes (1975).

(j) Rules and Regulations. Rules and regulations of procedure governing the exercise of authority to issue notices to appear shall be established by the chief judge of the circuit.

(k) Discovery by Defendant. — Upon demand of the- defendant-or-his-counsel the clerk ■ shall -fur-nish-to-defendanNa^copy-of that Schedule of-Witnesses.and — Exhibits filed with-the-Notiee-to-Appear.

DefendanUs-right to further discovery in prosecutions by Notice to Appear shall be limited-te names and addresses of witnesses-and-tangible-evidence in possession or control — of the prosecutor which are not contained in that schedule.

©-)(k) Procedure by Court. Upon the appearance of the accused before the court pursuant to the requirements of the Nnot-ice to Aappear, the ©court shall advise the defendant as set forth in Rrule 3.130(b), and the provisions of saidthat rule shall apply. The accused at such appearance may at his electionelect to waive histhe right to counsel and trial and enter hisa plea of guilty or nolo contendere by executing the waiver form contained on the Nnot-ice to Aappear, and the ©court may thereupon enter judgment and sentence in the cause.

In the event the defendant enters a plea of not guilty, the court may set the cause for jury or nonjury trial upon the Nnotice to Aappear pursuant to the provisions of Rrules 3.140 and 3.160 and Rule 3.140, as amended. Upon the setting of a trial date by the ©court, the ©clerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the Nnotice to Aappear? and to the witnesses whose names and addresses appear on the list filed by hhnthe officer, requiring their attendance at trial.

(na)(l) Form of Notice to Appear and Schedule of Witnesses and Evidence. The Nnotice to Aappear and ^schedule of Wwit-nesses and Eevidence shall be in substantially the following form:

IN THE COUNTY COURT, IN AND FOR_COUNTY, FLORIDA NOTICE TO APPEAR

[ ] Cited 1- - [ ] Jailed Name DOB Address

[ ] Cited 2. --- [ ] Jailed Name DOB Address

I AGREE TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE TO ANSWER THE OFFENSE CHARGED OR TO PAY THE FINE SUBSCRIBED. I UNDERSTAND THAT SHOULD I WILLFULLY FAIL TO APPEAR BEFORE THE COURT AS REQUIRED BY THIS NOTICE TO APPEAR, THAT I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST SHALL BE ISSUED.

WAIVER INFORMATION

If you desire to plead guilty or nolo contendere (no contest) and you need not appear in court as indicated on the face of this notice, you may present this notice at the county court named on the reverse of this page.

From _, -to-, - Date Hour Date Hour

and pay a fine of_dollars in cash, money order, or certified check.

The waiver below must be completed and attached. Read carefully.

Your failure to answer this summons in the manner subscribed will result in a warrant being issued on a separate and additional charge.

“In consideration of my not appearing in court, I the undersigned, do hereby enter my appearance on the affidavit for the offense charged on the other side of this notice and waive the reading of the affidavit in the above named cause and the right to be present at the trial of said action. I hereby enter my plea of Guilty [ ] or Nolo Contendere [ ], and waive my right to prosecute appeal or error proceedings.

“I understand the nature of the charge against me; I understand my right to have counsel and waive this right and the right to a continuance. I waive my right to trial before a judge or jury. I plead Guilty [ ] or Nolo Contendere [ ] to the charge;, being fully aware that my signature to this plea will have the same effect as a judgment of this Gcourt.”

Total Fine and Cost-

Defendant Signature-

Address-

IN THE COUNTY COURT, IN AND FOR_COUNTY, FLORIDA

SCHEDULE OF WITNESSES AND EVIDENCE FOR NOTICE TO APPEAR.

TANGIBLE EVIDENCE: (If none, write “None”)

Item: _

Obtained from (Pgerson and/or Rplace): _

first received by: _given to:

WITNESSES: (If none, write “None”)

# 1 Name: _

Res. Tel. No._ Address: _

Bus. Tel. No. _ Business: _

Testimony: _

#2 Name: _

Res. Tel. No. _ Address:

Bus. Tel. No. _ Business:

Testimony: ___

# 3 Name: _

Res. Tel. No. _ Address:

Bus. Tel. No. _ Business:

Testimony: _

I certify that the foregoing is a complete list of witnesses and evidence known to me.

Investigating Officer

Agency

Committee Notes

1992 Amendment. The amendment deletes subdivision (k) and reletters subdivisions (l) and (m). The elimination of subdivision (k) will entitle individuals charged with criminal violations to the same discovery, without regard to the nature of the charging instrument. As amended, persons charged by way of a notice to appear can obtain the same discovery as persons charged by way of either an information or an indictment. In this regard the committee also has proposed amendments to rule 3.220(b)(1), (b)(2), (c)(1), and (h)(1) to change the reference from “indictment or information” to “charging document.”

RULE 3.130. FIRST APPEARANCE

(a) Prompt First Appearance. Except when previously released in a lawful manner, every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest. In the case of a child in the custody of juvenile authorities, against whom an information or indictment has been filed, the child shall be taken for a first appearance hearing within 24 hours of the filing of the information or indictment. The chief judge of the circuit for each county within the circuit shall designate onel or more judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings.

(b) Advice to Defendant. UponAt the defendant’s first appearance the magistrate shall immediately inform faimthe defendant of the charge and provide faimthe defendant with a copy of the complaint. The magistrate shall also adequately advise the defendant as followsthat:

(1) That hethe defendant is not required to say anything, and that anything hethe defendant says may be used against him- or her;

(2) lif he is as yet unrepresented, that hethe defendant has a right to counsel, and, if he is financially unable to afford counsel, that counsel forthwith will be appointed^ and

(3) That-hethe defendant has a right to communicate with his counsel, his family, or his friends, and thatj if necessary, reasonable means will be provided to enable hhnreasonable means to do so.

(c) Counsel for Defendant.

(1) Appointed Counsel. Wherelf practicable, the magistrate should determine pri- or to the first appearance whether the defendant is financially able to afford counsel and whether hethe defendant desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, hethe magistrate shall immediately appoint counsel. This determination must be made and, whereif required, counsel appointed no later than the time of the first appearanceT and prior- tobefore any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate.

(2) Retained Counsel. WhereWhen the defendant has employedT counsel or is financially able and desires to employ7 counsel to represent him or her at first appearance, the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the first appearance hearing for suchthat purpose. The magistrate shall also, upon request of the defendant, require an officer to communicate a message to such counsel as the defendant may name. The officer shall2 with diligence7 and without cost to the defendant if the counsel is within the county, perform the duty. If the postponement will likely result in the continued incarceration of the defendant beyond a 24-hour period, at the request of the defendant the magistrate may appoint counsel to represent the defendant for the first appearance hearing.

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

(4) Waiver of Counsel. The defendant may waive feisthe right to counsel at first appearance, and if he does so, such The waiver, containing an explanation of faisthe right to counsel, shall be in writing and signed and dated by the defendant. This written waiver of counsel shall, in addition, contain a statement that it is limited to first appearance only and shall in no way be construed to be a waiver of counsel for subsequent proceedings.

(d) Pretrial Release. The judicial officer shall proceed to determine conditions of release pursuant to Rrule 3.131.

Committee Notes

1972 RevisionAmendment. Same as pri- or rule except (b), which is new.

RULE 3.131. PRETRIAL RELEASE

(a) Right to Pretrial Release. Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

(b) Hearing at First Appearance — Conditions of Release.

(1) Unless the Sstate has filed a motion for pretrial detention pursuant to Rrule 3.132, the court shall conduct a hearing to determine pretrial release. For the purpose of this rule, bail is defined as any of the forms of release stated below. There is a presumption in favor of release on non-monetary nonmonetary conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following conditions of release which that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions:

(1)(A) ^personal recognizance of the defendant;

(ii)(B) Eexecution of an unsecured appearance bond in an amount specified by the judge;

(iii)(C) Placingplacement of restrictions on the travel, association, or place of abode of the defendant during the period of release;

(iv)(D) Placingplacement of the defendant in the custody of a designated person or organization agreeing to supervise him the defendant;

(y)(E) Requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy said the bail by providing an appearance bond*; or

(vi)(F) Imposing any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) The judge shall at the defendant’s first appearance consider all available relevant factors to determine what form- of release is necessary to assure the defendant’s appearance. If a monetary bail is required, then the judge shall determine the amount.

(3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law7¿ the weight of the evidence against the defendant,; the defendant’s family ties, length of residence in the community, employment history, financial resources, and mental condition; the defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings^ the nature and probability of danger w-hieh that the defendant’s release poses to the community,; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding, or is on probation, parole, or other release pending completion of sentence,; and any other facts the court considers relevant.

(4) All information provided by a defendant in connection with any application for or attempt to secure bail, to any court, court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete, without omissions^ to the best knowledge of the defendant. Failure to comply with the provisions of this subseetion subdivision may result in the revocation or modification of bail. However, no defendant shall be compelled to provide information regarding his or her criminal record.

(5) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence.

(c) Consequences of Failure to Appear.

(1) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Ssection 903.26¿ of the Florida Statutes, and who voluntarily appears or surrenders,- shall not be eligible for a recognizance bond.

(2) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Ssection 903.26¿ of the Florida Statutes, and who is arrested at any time following forfeiture7 shall not be eligible for a recognizance bond or any form of bond which that does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater.

(d) Subsequent Application for Setting or Modification of Bail.

(1)When a judicial officer not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try the defendant, and bail has been denied or sought to be modified, application by motion may be made to the court having jurisdiction to try the defendant^ or¿ in the absence of the judge of said the trial court, to the circuit court. Such The motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless such the judge either:

(1)(A) Jimposed the conditions of bail or set the amount of bond required; or

(ii)(B) lis the chief judge of the circuit in which the defendant is to be tried; or

(iii)(C) Hhas been assigned to preside over the criminal trial of the defendant; or

(iv)(D) lis the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release.

(2) Applications by the defendant for modification of bail on any felony charge must be heard by a court in person at a hearing, with the defendant present and with at least three(3) hours’ notice to the state attorney and county attorney, if bond forfeiture proceedings are handled by the county attorney. The state may apply for modification of bail by showing good cause and with at least three(3) hours’ notice to the attorney for the defendant.

(3) In the eventlf any trial court fixes bail and refuses its reduction before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail. If application is made to the supreme courtj or district court of appeal, notice and a copy of such application shall be given to the attorney general and the state attorney. Such proceedings shall be determined promptly.

(e) Bail Before Conviction; Condition of Undertaking.

(1) If a person is admitted to bail for his appearance for a preliminary hearing7 or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that he the person will appear for such the hearing7 or to answer the charge7 and will submit himself to the orders and process of the magistrate trying the same7 and will not depart without leave.

(2) If he a person is admitted to bail after he has been being held to answer by a magistrate7 or after an indictment or information on which he the person is to be tried has been filed against him, the condition of the undertaking shall be that he the person will appear to answer the charges before the court in which he or she may be prosecuted and submit to the orders and process of the court? and will not depart without leave.

(f) Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit fahathe defendant to the custody of the proper official to abide by the judgment, sentence¿ and any further order of the court.

(g) Arrest and Commitment by Court. The court in which the cause is pending may direct the arrest and commitment of the defendant who is at large on bail in the following cases when:

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

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

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

The order for the commitment of the defendant shall recite generally the facts upon which it is based7 and shall direct that the defendant be arrested by any official authorized to make arrests7 and that the defendant be committed to the official in whose custody he or she would be had if he or she had not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment, the defendant shall be committed. If the order is made for any other cause, the court may determine the conditions of release, if any.

(h) Bail Aafter Recommitment. If the defendant applies to be admitted to bail after recommitment, the court which that recommitted him the defendant shall determine conditions of release, if any, subject to the limitations of (e)(b) above.

(i) Qualifications of Surety Aafter Order of Recommitment. If the defendant offers bail after recommitment, each surety shall possess the qualifications and suf-ficiencyT and the bail shall be furnished in all respects in the mannerT prescribed for admission to bail before recommitment.

(j) Issuance of Capias; Bail Specified. Upon On the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall issue or shall direct the clerk to issue, either imme-diatelyT or when so directed by the prosecuting attorney, a capias for the arrest of such the person. If the person named in the indictment or information is a childT and said the child has been served with a promise to appear under the Florida Rules of Juvenile Procedure, capias need not be issued. Upon the filing of the indictment or information, the judge shall endorse the amount of bail, if any, and may authorize the setting or modification of bail by the judge presiding over the defendant’s first appearance hearing. This endorsement shall be made on the capias and signed by the judge.

(k)Summons Upon on Misdemeanor Charge. When a complaint is filed charging the commission of a misdemeanor only and the magistrate deems that process should issue as a result, or when an indictment or information on which the defendant is to be tried charging the commission of a misdemeanor only, and the person named in it is not in custody or at large on bail for the offense charged, the magistrate or judge shall direct the clerk to issue a summons instead of a capias unless the magistrate or judge has reasonable ground to believe that the person will not appear in response to a summons¿ in which event an arrest warrant or a capias shall be issued with the amount of bail endorsed on it. The summons shall state substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the judge issuing the summons or the judge having jurisdiction of the offense at a time and place stated in it.

{I) Summons When Defendant ils Corporation. Upon On the filing of an indictment or information or complaint charging a corporation with the commission of a crime, whether felony or misdemeanor, the judge shall direct the clerk to issue or shall issue a summons to secure its appearance to answer the charge. If, after being summoned, the corporation does not appear, a plea of not guilty shall be entered and trial and judgment shall follow without further process.

Committee Notes

1968 Adoption, (a) Same as section 903.01, Florida Statutes.

(b) Same as section 903.04, Florida Statutes.

(c) Same as section 903.02, Florida Statutes.

(d) Same as section 903.12, Florida Statutes.

(e) Substantially same as section 903.13, Florida Statutes.

(f) Same as section 903.19, Florida Statutes.

(g) Same as section 918.01, Florida Statutes.

(h) Substantially same as section 903.23, Florida Statutes.

(i) Same as section 903.24, Florida Statutes.

(l) Same as section 903.25, Florida Statutes.

(k) and (l) Formerly rule 3.150(c). These proposals contain the essentials of present sections 907.01, 907.02, and 901.09(3), Florida Statutes, a change of some of the terminology being warranted for purpose of clarity.

(m) Formerly rule 3.150(c). This proposal contains all of the essentials of section 907.03, Florida Statutes, and that part of section 901.14, Florida Statutes, pertaining to postindictment or postinformation procedure. A charge by affidavit is provided.

Although subdivision (g) is the same as section 918.01, Florida Statutes, its constitutionality was questioned by the subcommittee, constitutional right to bail and presumption of innocence.

1972 Amendment. Same as prior rule except (b), which is new, (k), (l), and (m) are taken from prior rule 3.150.

1977 Amendment. This proposal amends subparagraph subdivision (b)(4) of the present rule [formerly Rrule 3.130(b)(4) ] to expand the forms of pre-trial pretrial release available to the judge. The options are the same as those available under the federal rules without the presumption in favor of release on personal recognizance or unsecured appearance.

This proposal leaves it to the sound discretion of the judge to determine the least onerous form of release which will still insure the defendant’s appearance.

It also sets forth the specific factors the judge should take into account in making this determination.

Paragraph (a) was repealed by~Gh.-7-6~ 138) § 2⅜ Laws -of-Florida, insofar as-it-was inconsistent with the provision of that stat-«⅜⅛ — Subparagraph (a) has been amended so as to comply with the legislative act.

1983 Amendment. Rule 3.131(d) is intended to replace former Rrule 3.130(f)T and therefore contemplates all subsequent modifications of bail? including all increases or reductions of monetary bailT or any other changes sought by the Sstate or by the defendant.

Court Comment

1977 Amendment. Subdivision (a) was repealed by Chapter 76-138, § 2, Laws of Florida, insofar as it was inconsistent with the provision of that statute. Subdivision (a) has been amended so as to comply with the legislative act.

RULE 3.132. PRETRIAL DETENTION

(a) Motion Filed at First Appearance. A person arrested for an offense for which detention may be ordered under Ssection 907.041;, of the Florida StatutesA shall be taken before a judicial officer for a first appearance within twenty-four (24) hours of arrest. The Sstate may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by the Sstate Aattorney or hisan assistant setting forth with particularity the grounds and the essential facts on which pretrial detention is sought, and certifying that hethe state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion. If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of Rrule 3.131(b)(1). If the motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine whether there is probable cause that the person committed the offense. If probable cause is found, the person may be detained in custody pending a final hearing on pretrial detention. If probable cause is established after first appearance pursuant to the provisions of Rrule 3.1337 and the person has been released from custody, hethe person may be recommitted to custody pending a final hearing on pretrial detention.

(b) Motion Filed Aafter First Appearance. A motion for pretrial detention may be filed at any time prior to trial. SuchThe motion shall be made to the court with trial jurisdiction. UponOn receipt of a facially sufficient motion and a determination of probable cause, unless otherwise previously established, that an offense eligible for pretrial detention has been committed, the following shall occur:

(1) In the event of exigent circumstances, the court shall issue a warrant for the arrest of the named person, if suchthe person has been released from custody. The person may be detained in custody pending a final hearing on pretrial detention.

(2) In the absence of exigent circumstances, the court shall order a hearing on suchthe motion as provided in (c) below.

(c) Final Order.

(1) Hearing Required. A final order of pretrial detention shall be entered only after a hearing in the court of trial jurisdiction. The hearing shall be held within five (5) days of the filing of the motionT or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later. The Sstate Aattorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in Ssection 907.041^ of the Florida Statutes. The defendant may request a continuance. The Sstate shall be entitled to ose 1 continuance for good cause. No continuance shall exceed five (5) days unless there are extenuating circumstances. The defendant may be detained pending the hearing, but in no case shall he the defendant be detained in excess of ten (10) days, unless such the delay is sought by the defendant. The person sought to be detained is entitled to representation by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence. No testimony by the defendant shall be admissible to prove the guilt of the defendant at any other judicial proceeding, but may be admitted in an action for perjury based upon the defendant’s statements made at the pretrial detention hearingT or for impeachment.

(2) Findings and Conclusions to bBe Recorded. The court’s pretrial detention order shall be based solely on evidence produced at the hearingT and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within twenty-four (24) hours of the pretrial detention hearing.

(3) Dissolution of Order. The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.

(4) Further Proceedings on Order. In the event If any trial court enters a final order of pretrial detention, the defendant may obtain review by motion to the appropriate appellate court. If motion for review is taken to the supreme court or the district court of appeal, notice and a copy of suchthe motion shall be served upon the attorney general and the state attorney; if review is taken to the circuit court, service shall be upon the state attorney.

(d) Length of Detention. If ordered detained pending trial pursuant to sub-paragraph (4)(b) of Ssection 907.041(4)(b), of-the Florida Statutes, the defendant may not be held more than ninety-(90) days. Failure of the state to bring the defendant to trial within that time shall result in his the defendant’s release from detention subject to any conditions of release, unless the trial delay was requested or caused by the defendant or faisthe defendant’s counsel.

RULE 3.133. PRETRIAL PROBABLE CAUSE "DETERMINATIONS AND ADVERSARY PRELIMINARY HEARINGS

(a) Nonadversary Probable Cause Determination.

(1) Defendants in Custody. In all cases where in which the defendant is in custody, a nonadversary probable cause determination shall be held before a magistrate within 72 hours from the time of the defendant’s arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a magistrate and an arrest warrant issued for the