In re Amendments to the Fla. Rules of Criminal Procedure-2018 Regular-Cycle Report (265 So. 3d 494, 2018)

Citations

265 So. 3d 494

Full opinion text

PER CURIAM.

Consistent with the order entered in this case on October 4, 2018, the opinion dated July 19, 2018, is withdrawn and the following revised opinion is substituted in its place.

The Florida Bar's Criminal Procedure Rules Committee (Committee) has filed its regular-cycle report of proposed amendments to the Florida Rules of Criminal Procedure, in accord with Florida Rule of Judicial Administration 2.140(b). We have jurisdiction and adopt the amendments as discussed below.

BACKGROUND

The Committee proposes amending the following rules and forms: 3.010 (Scope); 3.025 (State and Prosecuting Attorney Defined); 3.030 (Service and Filing of Pleadings, Papers, and Documents); 3.130 (First Appearance); 3.131 (Pretrial Release); 3.172 (Acceptance of Guilty or Nolo Contendere Plea); 3.180 (Presence of Defendant); 3.190 (Pretrial Motions); 3.191 (Speedy Trial); 3.203 (Defendant's Intellectual Disability as a Bar to Imposition of the Death Penalty); 3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition); 3.217 (Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant); 3.218 (Commitment of a Defendant Found Not Guilty by Reason of Insanity); 3.219 (Conditional Release); 3.220 (Discovery); 3.240 (Change of Venue); 3.330 (Determination of Challenge for Cause); 3.470 (Proceedings on Sealed Verdict); 3.590 (Time for and Method of Making Motions; Procedure; Custody Pending Hearing); 3.600 (Grounds for New Trial); 3.610 (Motion for Arrest of Judgment; Grounds); 3.691 (Post-Trial Release); 3.692 (Petition to Seal or Expunge); 3.704 (The Criminal Punishment Code); 3.710 (Presentence Report); 3.770 (Procedure When Pregnancy is Alleged as Cause For Not Pronouncing Death Sentence); 3.810 (Commitment of Defendant; Duty of Sheriff); 3.850 (Motion to Vacate, Set Aside, or Correct Sentence); 3.986(c) (Forms Related to Judgment and Sentence; Form for Charges, Costs, and Fees); 3.986(d) (Forms Related to Judgment and Sentence; Form for Sentencing); 3.986(e) (Forms Related to Judgment and Sentence; Form for Order of Probation); 3.986(f) (Forms Related to Judgment and Sentence; Form for Community Control); 3.986(g) (Forms Related to Judgment and Sentence; Form for Restitution Order); 3.989(a) (Affidavit, Petition, and Order to Expunge or Seal Forms; Affidavit in Support of Petition); 3.989(b) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Expunge); 3.989(c) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Seal); 3.989(d) (Affidavit, Petition, and Order to Expunge or Seal Forms; Petition to Expunge or Seal); 3.989(e) (Affidavit, Petition, and Order to Expunge or Seal Forms; Petition to Expunge; Human Trafficking Victim); 3.989(f) (Affidavit in Support of Petition; Human Trafficking Victim); and 3.989(g) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Expunge; Human Trafficking Victim). In addition, new rule 3.9876 (Motion for Correction of Sentence) is proposed. Following the filing of the report and the Court's publication of the proposals in The Florida Bar News , comments were filed by the Florida Public Defender Association (FPDA) and Public Defender Blaise Trettis.

After reviewing the Committee's proposals and considering the comments filed and the Committee's response thereto, we adopt the proposed amendments to rules 3.010, 3.025, 3.030, 3.131, 3.180, 3.190, 3.191, 3.203, 3.213, 3.217, 3.218, 3.219, 3.220, 3.240, 3.330, 3.470, 3.590, 3.600, 3.610, 3.691, 3.692, 3.704, 3.710, 3.770, 3.810, 3.850, 3.986, 3.9876, and 3.989. With modification, we also adopt the proposed amendments to rules 3.130 and 3.172. The notable changes to the rules are summarized below.

AMENDMENTS

The Committee proposes amending rule 3.130 (First Appearance) in pertinent part, to add new subdivision (b)(2) (Advice to Defendant; Use of Video Recording to Provide Notice of Rights), to require that the judge confirm that defendants, if advised of their rights by a pre-recorded video, had an opportunity to view and understand the rights explained in the video recording. Based upon the comment by the FPDA, however, we modify the Committee's proposal to provide as follows: "If the defendant was advised of the rights listed in subdivisions (b)(1)(A)-(b)(1)(C) by pre-recorded video, the judge shall confirm separately with each individual defendant that such defendant had an opportunity to view and understands the rights explained in the video recording." As modified, greater personal interaction between the judge and each individual defendant will be encouraged.

Subdivision (k) (Summons on Misdemeanor Charge) of rule 3.131 (Pretrial Release) is amended to require that the summons state "the title of the hearing to be conducted" after "the nature of the offense." This change will assist defendants who may have multiple cases that are proceeding know the type of hearing for which he or she is summoned.

The Committee proposes amending subdivision (c)(7) (Determination of Voluntariness; Terms of Plea Agreement) of rule 3.172 (Acceptance of Guilty or Nolo Contendere Plea), to require that the terms of the plea agreement include the amount of time credited for time previously served and an explanation to the defendant that any credit for time served not included in the time specified would be a waiver of the defendant's right to such credit. While the Committee's proposal was based upon a referral from the Court that the Committee "propose language adding a provision to subdivision (c) concerning the trial court advising the defendant on the issue of credit for time served when determining the voluntariness of a plea of guilty or nolo contendere," we decline to amend rule 3.172 as proposed. Instead, we agree with the comment from the FPDA that unintended consequences of the amendment may include impairment of plea bargaining, uninformed waivers, conflict with precedent, and an increase of judicial labor. However, technical changes to rule 3.172 are made.

Rule 3.180 (Presence of Defendant) is amended to resolve a conflict between rule 3.130 (First Appearance) and rule 3.180, by permitting a defendant to appear at the first appearance either physically or by electronic audiovisual device, as contemplated under rule 3.130.

Rule 3.191(l)(5) (Speedy Trial) is amended to correct the conjunction from "and" to "or" in the list of "exceptional circumstances" for which the trial court may order an extension of the time period for bringing a defendant to trial, as the trial court does not have to find more than one circumstance to grant an extension.

In regard to rule 3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition), the Committee originally proposed numerous changes. Following the comment by the FPDA, however, the Committee revised its proposal to amend rule 3.213 in its entirety. As amended, rule 3.213 is reorganized for clarity, to make it easier to determine the dismissal schedule within the rule. In addition, new subdivision (a)(3) (Dismissal without Prejudice during Continuing Incompetency) adds the provision for dismissal after three years if the charge is not listed in section 916.145(1), Florida Statutes (Dismissal of charges), as enacted in chapter 2016-135, section 3, Laws of Florida.

In addition to technical changes to rule 3.704 (The Criminal Punishment Code), new subdivisions (d)(24)(A)-(d)(24)(B) are added in response to chapter 2014-4, Laws of Florida, which amended section 921.0024, Florida Statutes, to provide that sentence points be multiplied by 2.0 for specified sex offenses committed by an adult upon a minor under certain circumstances, unless application of the multiplier results in the lowest permissible sentence exceeding the statutory maximum.

Rule 3.710(a) (Presentence Report; Cases in Which Court Has Discretion) is amended to clarify the rule by adding that, in addition to probation, a statutorily required mandatory minimum sentence may be imposed without a presentence investigation upon a defendant found guilty of a first felony offense or found guilty of a felony while under the age of eighteen. In addition, the term "shall" is replaced by "may," because the sentence of probation or mandatory minimum is discretionary. Lastly, the language added to the end of subdivision (a), "The requirements of this subdivision are not applicable to a subsequent violation of probation proceeding," is based upon Barber v. State , 293 So.2d 710 (Fla. 1974).

Rule 3.986 (Forms Related to Judgment and Sentence) is amended to simplify the rule by deleting the lists of costs, special provisions, and general provisions, and to require the court to insert these items. Following are changes to specific provisions of the rule. Under subdivision (c) (Form for Charges, Costs, and Fees), the checklist of charges/costs/fees is deleted and is replaced with the following directive: "[Insert list of mandatory fines, discretionary fines, and restitution, if any.]" In subdivision (d) (Form for Sentencing), the list of special provisions is deleted and instead is replaced with the following: "[Include all findings, sentencing enhancements, and mandatory minimum provisions, as authorized by law and pronounced at sentencing.]" A number of changes are made to subdivision (e) (Form for Order of Probation). First, the checklist of conditions of probation and special conditions is deleted, and is replaced with "GENERAL CONDITIONS: [List the general conditions of probation pursuant to section 948.03, Florida Statutes.]" and "SPECIAL CONDITIONS: [List the special conditions of probation as orally pronounced and authorized by law.]" In addition, below the space for "Other," the paragraph pertaining to rescinding or modifying any of the conditions of probation is modified. Also, we delete the sentence "(This paragraph applies only if section 1 or section 2 is checked.)" under subdivision (e). Last, in subdivision (g) (Form for Restitution Order), the checklist of restitution options is deleted and replaced by the text "[Include all restitution and findings, as authorized by law and pronounced at sentencing.]."

Finally, we adopt a new form, rule 3.9876 (Motion for Correction of Sentence), which was suggested to the Committee by the Florida Supreme Court Criminal Court Steering Committee. The new form pertains to rule 3.800(a) motions, including those for correction of an illegal sentence, an incorrect sentencing scoresheet, or an erroneous sexual predator designation. The form is written in a "question-and-answer format," similar to the format previously approved by the Court for rule 3.9875 (Motion for Jail Credit). See In re Amendments to Fla. Rules of Crim. Pro. , 185 So.3d 1169 (Fla. 2015).

CONCLUSION

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2019, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

RULE 3.010. SCOPE

These rules shall govern the procedure in all criminal proceedings in state courts including proceedings involving direct and indirect criminal contempt, proceedings under rule 3.850, and

vehicular and pedestrian

criminal traffic offenses

insofar

as provided

these rules are made applicable

by section III,

the

Florida Rules of

Practice and Procedure for

Traffic Court

. These rules shall not apply to direct or indirect criminal contempt of a court acting in any appellate capacity. These rules shall not apply to rules 3.811 and 3.812. These rules shall be known as the Florida Rules of Criminal Procedure and may be cited as Fla. R. Crim. P.

Committee Notes

[No Changes]

RULE 3.025. STATE AND PROSECUTING ATTORNEY DEFINED

Whenever the terms "state," "state attorney," "prosecutor," "prosecution," "prosecuting officer," or "prosecuting attorney" are used in these rules, they shall be construed to mean the prosecuting authority representing the

S tate of Florida.

Committee Notes

[No Changes]

RULE 3.030. SERVICE AND FILING OF PLEADINGS

, PAPERS,

AND DOCUMENTS

(a) Service. Every pleading subsequent to the initial indictment or information on 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 about which a hearing ex parte is authorized, and every written notice, demand, and similar document shall be served on each party in conformity with Florida Rule of Judicial Administration 2.516 .

; however, n

N othing herein shall be construed to require

that

a plea of not guilty

shall

be in writing.

(b) Filing.

All documents that are "court records" as defined in the Florida Rules of Judicial Administration must be filed with the clerk in accordance

Filings of all pleadings and documents shall comply with Florida Rules of Judicial Administration

2.520

2.505, 2.515, and 2.525.

Committee Notes

[No Changes]

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

judge, 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 1 or more

judicial officers

judges from the circuit court, or county court, to be available for the first appearance and proceedings. The state attorney or an assistant state attorney and public defender or an assistant public defender shall attend the first appearance proceeding either in person or by other electronic means. First appearance hearings shall be held with adequate notice to the public defender and state attorney. An official record of the proceedings shall be maintained. If the defendant has retained counsel or expresses a desire to and is financially able, the attendance of the public defender or assistant public defender is not required at the first appearance, and the judge shall follow the procedure outlined in subdivision (c)(2).

(b) Advice to Defendant.

(1) Notice of Charges and Rights. At the defendant's first appearance the judge shall immediately inform the defendant of the charge, including an alleged violation of probation or community control, and provide the defendant with a copy of the complaint. The judge shall also adequately advise the defendant that:

(

A ) the defendant is not required to say anything, and that anything the defendant says may be used against him or her;

(

B ) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed; and

(

C ) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided reasonable means to do so.

(2) Use of Video Recording to Provide Notice of Rights. If the defendant was advised of the rights listed in subdivisions (b)(1)(A)-(b)(1)(C) by pre-recorded video, the judge shall confirm separately with each individual defendant that such defendant had an opportunity to view and understands the rights explained in the video recording.

(d) Pretrial Release. The

judicial officer

judge shall proceed to determine conditions of release pursuant to rule 3.131. For a defendant who has been arrested for violation of his or her probation or community control by committing a new violation of law, the

judicial officer

judge:

(1)

m ay order the offender to be taken before the court that granted the probation or community control if the offender admits the violation; or

(2)

i f the offender does not admit the violation at first appearance hearing, the

judicial officer

judge may commit and order the offender to be brought before the court that granted probation or community control, or may release the offender with or without bail to await further hearing, notwithstanding section 907.041, Florida Statutes, relating to pretrial detention and release. In determining whether to require or set the amount of bail, the

judicial officer

judge may consider whether the offender is more likely than not to receive a prison sanction for the violation.

Committee Notes

[No Changes]

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. As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the defendant shall refrain from any contact of any type with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure and shall comply with all conditions of pretrial release as ordered by the court. Upon motion by the defendant when bail is set, or upon later motion properly noticed pursuant to law, the court may modify the condition precluding victim contact if good cause is shown and the interests of justice so require. The victim shall be permitted to be heard at any proceeding in which such modification is considered, and the state attorney shall notify the victim of the provisions of this

subsection

subdivision and of the pendency of any such proceeding. 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)-(g) [No Changes]

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

above

(i)-(j) [No Changes]

(k) Summons on Misdemeanor Charge. When a complaint is filed charging the commission of a misdemeanor only and the judge 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 judge shall direct the clerk to issue a summons instead of a capias unless the 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 , the title of the hearing to be conducted, 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.

( l ) [No Changes]

Committee Notes

[No Changes]

Court Comment

[No Changes]

RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a)-(b) [No Changes]

(c) Determination of Voluntariness. Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge must, when determining voluntariness, place the defendant under oath, address the defendant personally , and determine on the record that he or she understands:

(1)-(9) [No Changes]

(10) Driver

License Suspension or Revocation. If the defendant pleads guilty or nolo contend e re and the offense to which the defendant is pleading is one for which automatic, mandatory driver

license suspension or revocation is required by law to be imposed ,

(

either by the court or by a separate agency

)

, the plea will provide the basis for the suspension or revocation of the defendant's driver

license.

(d) [No Changes]

(e) Acknowledgment by Defendant. Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either :

(1)___acknowledges his or her guilt; or (2)___acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.

(f)-(j) [No Changes]

Committee Notes

1977 Adoption-2005 Amendment [No Changes]

2015 Amendment. In view of the holdings inPadilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), andHernandez v. State, 124 So.3d 757 (Fla. 2012), the Committee felt it appropriate to expand the requirements in subdivision (c)(8).

RULE 3.180. PRESENCE OF DEFENDANT

(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:

(1)-(3) [No Changes]

(4) at the beginning of the trial during the examination, challenging, impanel

ing, and swearing of the jury;

(5)-(9) [No Changes]

(b) Presence;

D efinition. Except as permitted by rule 3.130 relating to first appearance hearings,

a defendant is present for purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the issues being discussed.

(c)-(e) [No Changes]

Committee Notes

[No Changes]

RULE 3.190. PRETRIAL MOTIONS

(a)-(b) [No Changes]

(c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time

hereinabove

provided herein, shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(1)-(4) [No Changes]

(d) [No Changes]

(e) Effect of Sustaining a Motion to Dismiss. If the motion to dismiss is sustained, the court may order that the defendant be held in custody or admitted to bail for a reasonable specified time pending the filing of a new indictment or information. If a new indictment or information is not filed within the time specified in the order, or within such additional time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged

therefrom

, unless some other charge justifies a continuation in custody. If the defendant has been released on bail, the defendant and the sureties shall be exonerated; if money or bonds have been deposited as bail, the money or bonds shall be refunded.

(f)-(j) [No Changes]

Committee Notes

[No Changes]

RULE 3.191. SPEEDY TRIAL

(a)-(c) [No Changes]

(d) Custody. For purposes of this rule, a person is taken into custody :

(1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged

; or

(2) when the person is served with a notice to appear in lieu of physical arrest.

(e)-(i) [No Changes]

(j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:

(1)-(4) [No Changes]

If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2),(j) (3), or (j) (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial.

(k) [No Changes]

( l ) Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include:

(1)-(4) [No Changes]

(5) a showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant;

and

(6) [No Changes]

(m)-(p) [No Changes]

Committee Notes

1972 Amendment-1992 Amendment [No Changes]

2018 Amendment. In light of the ruling in Smart v. State, 179 So.3d 477 (Fla. 4th DCA 2015), as well as the precedent cited therein, the committee notes that the reference to the swearing in of trial jury panel for voir dire examination contained in the Florida Rule of Criminal Procedure 3.191(c) relates to the giving of the oath contained in Florida Rule of Criminal Procedure 3.300(a). The oath is not required to be given in any particular location or by any particular official.

RULE 3.203. DEFENDANT'S INTELLECTUAL DISABILITY AS A BAR TO IMPOSITION OF THE DEATH PENALTY

(a) [No Changes]

(b) Definition of Intellectual Disability. As used in this rule, the term "intellectual disability" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term "significantly subaverage general intellectual functioning," for the purpose of this rule, means performance that is

two

2 or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and

Family Services

Families in rule 65G-4.011 of the Florida Administrative Code. The term "adaptive behavior," for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

; Contents; Procedures.

(1) [No Changes]

(2) The motion shall state that the defendant is intellectually disabled and, if the defendant has been tested, evaluated, or examined by

one

1 or more experts, the names and addresses of the experts. Copies of reports containing the opinions of any experts named in the motion shall be attached to the motion. The court shall appoint an expert chosen by the state attorney if the state attorney so requests. The expert shall promptly test, evaluate, or examine the defendant and shall submit a written report of any findings to the parties and the court.

(3) If the defendant has not been tested, evaluated, or examined by

one

1 or more experts, the motion shall state that fact and the court shall appoint

two

2 experts who shall promptly test, evaluate, or examine the defendant and shall submit a written report of any findings to the parties and the court.

(4)-(5) [No Changes]

(d)-(i) [No Changes]

RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO PROCEED WITH SENTENCING

; DISPOSITION

(a) Dismissal without Prejudice during Continuing Incompetency.

After a determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing, the charge(s):

(1)

shall be dismissed 1 year after a finding if the charge is a misdemeanor;

(2)

If the incompetency to stand trial or to proceed is due to intellectual disability or autism, the court shall dismiss the charges within a reasonable time after such determination, not to exceed 2 years for felony charges and 1 year for misdemeanor charges, unless the court specifies in its order the

reasons for believing that the defendant will become competent within the foreseeable future and specifies the time within which the defendant is expected to become competent. The dismissal shall be without prejudice to the state to refile should the defendant be declared competent to proceed in the future.

shall be dismissed no later than 2 years after a finding if incompetency is due to intellectual disability or autism;

(3) may be dismissed 3 years after a finding, unless a charge is listed in section 916.145, Florida Statutes; or

(4) shall be dismissed after a finding that the defendant has remained incompetent for 5 continuous and uninterrupted years;

provided that the court finds that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing unless the court in its order specifies its reasons for believing that the defendant is expected to become competent to proceed. A dismissal under this rule shall be without prejudice to the state to refile the charge(s) should the defendant be declared competent to proceed in the future.

(b) Commitment or Treatment during Continuing Incompetency.

(1)

If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future, and that the defendant does meet the criteria for commitment, the court shall dismiss the charges against the defendant and commit the defendant to the Department of Children and Family Services for involuntary hospitalization or residential services solely under the provisions of law or may order that the defendant receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of the facility notify the state attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant. If charges are dismissed pursuant to this subdivision, the dismissal shall be without prejudice to the state to refile the charges should the defendant be declared

competent to proceed in the future.

If the defendant meets the criteria for commitment under section 394.467, Florida Statutes, the court shall commit the defendant to the Department of Children and Families for involuntary hospitalization solely under the provisions of law. If the defendant meets the criteria of section 394.4655. Florida Statutes, the court may order that the defendant receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of an inpatient facility notify the state attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant.

(2) [No Changes]

Committee Notes

[No Changes]

RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF INSANITY

; DISPOSITION OF DEFENDANT

(a) [No Changes]

(b) Treatment, Commitment, or Discharge after Acquittal. When a person is found not guilty of the offense or is found not to be in violation of probation or community control by reason of insanity, if the court then determines that the defendant presently meets the criteria set forth by law, the court shall commit the defendant to the Department of Children and

Family Services

Familie s or shall order outpatient treatment at any other appropriate facility or service, or shall discharge the defendant. Any order committing the defendant or requiring outpatient treatment or other outpatient service shall contain:

(1)-(3) [No Changes]

Committee Notes [No Changes]

RULE 3.218. COMMITMENT OF A DEFENDANT FOUND NOT GUILTY BY REASON OF INSANITY

(a) Commitment; 6-Month Report. The Department of Children and

Family Services

Families shall admit to an appropriate facility a defendant found not guilty by reason of insanity under rule 3.217 and found to meet the criteria for commitment for hospitalization and treatment and may retain and treat the defendant. No later than 6 months from the date of admission, the administrator of the facility shall file with the court a report, and provide copies to all parties, which shall address the issues of further commitment of the defendant. If at any time during the 6-month period, or during any period of extended hospitalization that may be ordered under this rule, the administrator of the facility shall determine that the defendant no longer meets the criteria for commitment, the administrator shall notify the court by such a report and provide copies to all parties. The procedure for determinations of the confidential status of reports is governed by Rule of Judicial Administration 2.420.

(b)-(c) [No Changes]

Committee Notes

[No Changes]

RULE 3.219. CONDITIONAL RELEASE

(a) [No Changes]

(b) Defendant's Failure to Comply. If it appears at any time that the defendant has failed to comply with the conditions of release, or that the defendant's condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court, after hearing, may modify the release conditions or, if the court finds the defendant meets the statutory criteria for commitment, may order that the defendant be recommitted to the Department of Children and

Family Services

Families for further treatment.

Committee Notes

[No Changes]

RULE 3.220. DISCOVERY

(a)-(g) [No Changes]

(h) Discovery Depositions.

(1)-(4) [No Changes]

(5) Depositions of Law Enforcement Officers. Subject to the general provisions of subdivision (h)(1), law enforcement officers shall appear for deposition, without subpoena, upon written notice of taking deposition delivered at the physical address of the law enforcement agency or department, or an e-mail or other address designated by the law enforcement agency or department,

five

5 days prior to the date of the deposition. Law enforcement officers who fail to appear for deposition after being served notice as required by the rule may be adjudged in contempt of court.

(6) [No Changes]

(7) Defendant's Physical Presence. A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider :

(A)___the need for the physical presence of the defendant to obtain effective discovery

;

(B)___the intimidating effect of the defendant's presence on the witness, if any

;

(C)___any cost or inconvenience which may result

; and

(D)___any alternative electronic or audio/visual means available.

(8) [No Changes]

(i) Investigations Not to Be Impeded. Except as is otherwise provided as to matters not subject to disclosure or restricted by protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information ,

(

except the defendant

)

, to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.

(j) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous compliance, the party shall promptly disclose or produce the witnesses or material in the same manner as required under these rules for initial discovery. This duty includes any additional recorded or unrecorded statements of any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this rule that materially alter a written or recorded statement previously provided under these rules.

(k) [No Changes]

( l ) Protective Orders.

(1) [No Changes]

(2) Motion to Terminate or Limit Examination. At any time during the taking of a deposition, on motion of a party or of the deponent, and upon a showing that the examination is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court where the deposition is being taken may :

(

A )___terminate the deposition

;

(

B )___limit the scope and manner of the taking of the deposition

;

(

C )___limit the time of the deposition

;

(

D )___continue the deposition to a later time

;

(

E )___order the deposition to be taken in open court

; and, in addition, may

(

F )___impose any sanction authorized by this rule.

If the order terminates the deposition, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

(m) [No Changes]

(n) Sanctions.

(1)-(2) [No Changes]

(3) Every request for discovery or response or objection, including a notice of deposition made by a party represented by an attorney, shall be signed by at least 1 attorney of record , as defined by Florida Rule of Judicial Administration 2.505, in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and list his or her address.The signature of the attorney constitutes a certification that the document complies with Florida Rule of Judicial Administration 2.515. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection and that to the best of the signer's knowledge, information, or belief formed after a reasonable inquiry it is:

(A)-(C) [No Changes]

If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.

If a certification is made in violation of this rule, the court, on motion or on its own initiative, shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party on whose behalf the request, response, or objection is made, or any or all of the above an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.

(o) [No Changes]

Committee Notes

1968 Adoption-1998 Amendment [No Changes]

2018 Amendment. The amendments to subdivision (j) are a clarification of the rule based on Scipio v. State, 928 So.2d 1138 (Fla. 2006), and Washington v. State, 151 So.3d 544 (Fla. 1st DCA 2014).

Court Commentary

[No Changes]

RULE 3.240. CHANGE OF VENUE

(a)-(e) [No Changes]

(f) Transmittal of Documents. The clerk shall

enter on the minutes

docket the order of removal and transmit to the court to which the cause is removed a certified copy of the order of removal and of the record and proceedings and of the undertakings of the witnesses and the accused.

(g) [No Changes]

(h) Multiple Defendants. If there are several defendants and an order is made removing the cause on the application of

one

1 or more but not all of them, the other defendants shall be tried and all proceedings had against them in the county in which the cause is pending in all respects as if no order of removal had been made as to any defendant.

(i) [No Changes]

(j) Prosecuting Attorney's Obligation. The prosecuting attorney of the court to which the cause is removed may amend the information, or file a new information

and

Any such new information shall be entitled in the county

to which

the trial is had

the cause is removed, but the allegations as to the place of commission of the crime shall refer to the county in which the crime was actually committed.

Committee Notes

[No Changes]

RULE 3.330. DETERMINATION OF CHALLENGE FOR CAUSE

The court shall determine the validity of a challenge of an individual juror for cause. In making such determination the juror challenged and any other material witnesses, produced by the parties, may be examined

under oath by either party. The court may consider also any other evidence material to such challenge.

Committee Notes

[No Changes]

RULE 3.470. PROCEEDINGS ON SEALED VERDICT

The court may, with the consent of the prosecuting attorney and the defendant, direct the jurors that if they should agree upon a verdict during a temporary adjournment of the court, the foreperson and each juror shall sign the same, and the verdict shall be sealed in an envelope and delivered to the officer having charge of the jury, after which the jury may separate until the

next convening of the

court reconvenes. When the court authorizes the rendition of a sealed verdict, it shall admonish the jurors not to make any disclosure , of any kind, concerning it or to speak with other persons concerning the

cause

case, until their verdict shall have been rendered in open court. The officer shall

, forthwith,

deliver the sealed verdict to the clerk. When the jurors have reassembled in open court, the envelope shall be opened by the court or clerk , and

the same proceedings shall be had as in the receiving of other

must be received in the same manner as unsealed verdicts.

Committee Notes

[No Changes]

RULE 3.590. TIME FOR AND METHOD OF MAKING MOTIONS; PROCEDURE; CUSTODY PENDING HEARING

(a) Time for Filing in Noncapital Cases. In cases in which the state does not seek the death penalty, a motion for new trial or a motion in arrest of judgment, or both , may be made, either orally in open court or in writing and filed with the clerk's office, within 10 days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the 10-day period and in the discretion of the court at any other time before the motion is determined.

(b) Time for Filing in Capital Cases Where the Death Penalty Is an Issue. A motion for new trial or a motion in arrest of judgment, or both, or for a new penalty phase hearing may be made within 10 days after written final judgment of conviction and sentence of life imprisonment or death is filed. The motion may address grounds which arose in the guilt phase and the penalty phase of the trial. Separate motions for the guilt phase and the penalty phase may be filed. The motion or motions may be amended without leave of court prior to the expiration of the 10 - day period, and in the discretion of the court, at any other time before the motion is determined.

(d) Written Motions. The motion may be in writing, filed with the clerk; it shall state the grounds on which it is based. A copy of a written motion shall be served on the prosecuting attorney. When the court sets a time for the hearing thereon, the clerk may notify counsel for the respective parties or the attorney for the defendant may serve notice of hearing on the prosecuting

officer

attorney.

(e) Custody Pending Motion.

Until the motion is disposed of, a

A defendant who is not already at liberty on bail shall remain in custody and not be allowed liberty on bail unless the court , on good cause shown

(

if the offense for which the defendant is convicted is bailable

)

, permits the defendant to be released on bail until

the motion is disposed of

the court disposes of the motion. If the defendant is already at liberty on bail that is deemed by the court to be good and sufficient,

the court may permit the defendant to continue at large on such bail until the motion for new trial is heard and

disposed of

the court disposes of the motion.

Committee Notes

[No Changes]

RULE 3.600. GROUNDS FOR NEW TRIAL

(a) Grounds for Granting. The court shall grant a new trial only if

any of the following grounds is established.

(1)

t he jurors decided the verdict by lot

;

(2)

t he verdict is contrary to law or the weight of the evidence

; or

(3)

n ew and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.

(b) Grounds for Granting if Prejudice is Established. The court shall grant a new trial if

any of the following grounds is established, providing

substantial rights of the defendant were prejudiced

thereby.

because:

(1)

t he defendant was not present at any proceeding at which the defendant's presence is required by these rules

;

(2)

t he jury received any evidence out of court, other than that resulting from an authorized view of the premises

;

(3)

t he jurors, after retiring to deliberate upon the verdict, separated without leave of court

;

(4)

a ny juror was guilty of misconduct

;

(5)

t he prosecuting attorney was guilty of misconduct

;

(6)

t he court erred in the decision of any matter of law arising during the course of the trial

;

(7)

t he court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant

; o r

(8)

f or any other cause not due to the defendant's own fault, the defendant did not receive a fair and impartial trial.

Committee Notes

[No Changes]

RULE 3.610. MOTION FOR ARREST OF JUDGMENT; GROUNDS

The court shall grant a motion in arrest of judgment only

on 1 or more of the following grounds

if:

(a)

t he indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction

;

(b)

t he court is without jurisdiction of the cause

;

(c)

t he verdict is so uncertain that it does not appear therefrom that the jurors intended to convict the defendant of an offense

for which the defendant could be convicted under the indictment or information

under which the defendant was tried.

; or

(d)

t he defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information

under which the defendant was tried

Committee Notes

[No Changes]

RULE 3.691. POST-TRIAL RELEASE

(a) When Authorized.

All persons

A defendant who

have

has been adjudicated guilty of the commission of any non-capital offense for which bail is not prohibited under section 903.133, Florida Statutes,

not capital,

may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in

Younghans v. State

Younghans v. State, 90 So._2d 308 (Fla. 1956)

, provided that no person

. No defendant may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if

such person

the defendant has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the

person's

defendant's civil rights have not been restored or if other felony charges are pending against the

person

defendant and probable cause has been found that the

person

defendant has committed the felony or felonies at the time the request for bail is made.

(b) [No Change]

person

defendant pursuant to the provisions of subdivision (a) may be reviewed by motion to the appellate court and the motion shall be advanced on the calendar of the appellate court for expeditious review.

(d) Conditions of Release. If the defendant is released after conviction and

pending appeal, the condition s shall be:

(1)___the defendant will duly prosecute the appeal; and

(2)___the defendant will surrender himself or herself in execution of the judgment or sentence on its being affirmed or modified or on the appeal being dismissed; or in case the judgment is reversed and the cause remanded for a new trial, the defendant will appear in the court to which the cause may be remanded for a new trial, that the defendant will appear in the court to which the cause may be remanded and submit to the orders and process thereof and will not depart the jurisdiction of the court without leave.

(e) Approval of Bond. The court shall approve the sufficiency and adequacy of the bond, its security, and sureties, prior to the release of the defendant. However, in no case may an original appearance bond be continued for an appeal.

Committee Notes

[No Changes]

RULE 3.692. PETITION TO SEAL OR EXPUNGE

(a) Requirements of Petition.

(1) All relief sought by reason of sections 943.0585-943.059, Florida Statutes, shall be by written petition, filed with the clerk. The petition shall state the grounds on which it is based and the official records to which it is directed, and shall be supported by an affidavit of the party seeking relief, which affidavit shall state with particularity the statutory grounds and the facts in support of the motion. A petition seeking to seal or expunge nonjudicial criminal history records must be accompanied by a certificate of eligibility issued to the petitioner by the Florida Department of Law Enforcement. A copy of the completed petition and affidavit shall be served on the prosecuting attorney and the arresting authority.

Notice and hearing shall be as provided in rule 3.590(c).

(2) All relief sought by reason of section 943.0583, Florida Statutes, shall be by written petition, filed with the clerk. The petition shall state the grounds on which it is based and the official records to which it is directed;

shall be supported by the petitioner's sworn statement attesting that the petitioner is eligible for such an expunction; and to the best of his or her knowledge or belief that the petitioner does not have any other petition to expunge or any petition to seal pending before any court; and shall be accompanied by official documentation of the petitioner's status as a victim of human trafficking, if any exists. A petition to expunge, filed under section 943.0583, Florida Statutes, is not required to be accompanied by a certificate of eligibility from the Florida Department of Law Enforcement. A copy of the completed petition, sworn statement, and any other official documentation of the petitioner's status as a victim of human trafficking, shall be served on the prosecuting attorney and the arresting authority.

Notice and hearing shall be as provided in rule 3.590(c).

(b) State's Response; Evidence. The

state may traverse or demur

prosecuting attorney and arresting agency may respond to the petition and affidavit. The court may receive evidence on any issue of fact necessary to

the decision of

rule on the petition.

(c)-(d) [No Changes]

(e) Clerk's Duties. In regard to the official records of the court, including the court file of the cause, the clerk shall:

(1) [No Changes]

(2) seal the entries and records, or certified copies thereof, together with the court file and retain the same in a nonpublic index, subject to further order of the court (seeJohnson v. State, 336 So.2d 93 (Fla. 1976)); and

(3) [No Changes]

(f) Costs.

All costs of certified copies involved herein shall be borne by the movant, unless the movant is indigent

Petitioner shall bear all costs of certified copies unless petitioner is indigent.

Committee Notes

[No Changes]

RULE 3.704. THE CRIMINAL PUNISHMENT CODE

(a) [No Changes]

(b) Purpose and Construction. The purpose of the 1998 Criminal Punishment Code , and the principles it embodies , are set out in subsection 921.002(1), Florida Statutes. Existing case law construing the application of sentencing guidelines will continue as precedent unless in conflict with the provisions of this rule or the 1998 Criminal Punishment Code.

(1) [No Changes]

(2) Felony offenses not listed in section 921.0022 are assigned a severity level in accordance with section 921.0023, Florida Statutes, as follows:

(A)

a felony of the third degree within offense level 1

;

(B)

a felony of the second degree within offense level 4

;

(C)

a felony of the first degree within offense level 7

;

(D)

a felony of the first degree punishable by life within offense level 9

; or

(E)

a life felony within offense level 10.

An offense does not become unlisted and subject to the provisions of section 921.0023 because of a reclassification of the degree of felony under section 775.0845, section 775.087, section 775.0875 , or section 794.023, Florida Statutes, or any other law that provides an enhanced penalty for a felony offense.

(d) General Rules and Definitions.

(1) One or more Criminal Punishment Code scoresheets must be prepared for each offender covering all offenses pending before the court for sentencing, including offenses for which the offender may qualify as an habitual felony offender, an habitual violent felony offender, a violent career criminal, or a prison releasee reoffender. The office of the

state

prosecuting attorney must prepare the scoresheets and present them to defense counsel for review as to accuracy. If sentences are imposed under section 775.084, or section 775.082(9), Florida Statutes, and the Criminal Punishment Code, a scoresheet listing only those offenses sentenced under the Criminal Punishment Code must be filed in addition to any sentencing documents filed under section 775.084 or section 775.082(9).

(2) [No Changes]

(3) If an offender is before the court for sentencing for more than one felony and the felonies were committed under more than

one

1 version or revision of the guidelines or Criminal Punishment Code, separate scoresheets must be prepared and used at sentencing. The sentencing court may impose such sentence concurrently or consecutively.

(4)-(6) [No Changes]

(7) "Primary offense" means the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only

one

1 count of one offense before the court for sentencing shall be classified as the primary offense.

(8) [No Changes]

(9) "Victim injury" is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. Except as otherwise provided by law, the sexual penetration and sexual contact points will be scored as follows. Sexual penetration points are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points are scored if an offense pending before the court for sentencing involves sexual contact, but no penetration. If the victim of an offense involving sexual penetration or sexual contact without penetration suffers any physical injury as a direct result of an offense pending before the court for sentencing, that physical injury must be scored in addition to any points scored for the sexual contact or sexual penetration.

Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are

one

1 or more victims.

However, victim injury must not be scored for an offense for which the offender has not been convicted.

Victim injury resulting from

one

1 or more capital offenses before the court for sentencing must not be included upon any scoresheet prepared for non-capital offenses also pending before the court for sentencing. This does not prohibit the scoring of victim injury as a result of the non-capital offense or offenses before the court for sentencing.

(10) Unless specifically provided otherwise by statute, attempts, conspiracies, and solicitations must be indicated in the space provided on the Criminal Punishment Code scoresheet and must be scored at

one

1 severity level below the completed offense.

Attempts, solicitations, and conspiracies of third-degree felonies located in offense severity levels 1 and 2 must be scored as misdemeanors. Attempts, solicitations, and conspiracies of third-degree felonies located in offense severity levels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies

one

1 offense level beneath the incomplete or inchoate offense.

(11) An increase in offense severity level may result from a reclassification of felony degrees under sections 775.0845, 775.087, 775.0875, or 794.023 , Florida Statutes. Any such increase must be indicated in the space provided on the Criminal Punishment Code scoresheet.

(12) A single assessment of

thirty

30 prior serious felony points is added if the offender has a primary offense or any additional offense ranked in level 8, 9, or 10 and

one

1 or more prior serious felonies. A `prior serious felony' is an offense in the offender's prior record ranked in level 8, 9, or 10 and for which the offender is serving a sentence of confinement, supervision , or other sanction or for which the offender's date of release from confinement, supervision, or other sanction, whichever is later, is within 3 years before the date the primary offense or any additional offenses were committed. Out of state convictions wherein the analogous or parallel Florida offenses are located in offense severity level 8, 9, or 10 must be considered prior serious felonies.

(13) If the offender has

one

1 or more prior capital felonies, points must be added to the subtotal sentence points of the offender equal to twice the number of points the offender receives for the primary offense and any additional offense. Out-of-state convictions wherein the analogous or parallel Florida offenses are capital offenses must be considered capital offenses for purposes of operation of this section.

(14) [No Changes]

(15) "Legal status points" are assessed when an offender:

(A)

e scapes from incarceration;

(B)

f lees to avoid prosecution;

(C)

f ails to appear for a criminal proceeding;

(D)

v iolates any condition of a supersedeas bond;

(E)

i s incarcerated;

(F)

i s under any form of a pretrial intervention or diversion program; or

(G)

i s under any form of court-imposed or post-prison release community supervision and commits an offense that results in conviction. Legal status violations receive a score of 4 sentence points and are scored when the offense committed while under legal status is before the court for