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In re Amendments to Florida Rules of Criminal Procedure

Supreme Court of Florida

July 19, 2018

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE - 2018 REGULAR-CYCLE REPORT.

         Original Proceeding - Florida Rules of Criminal Procedure

          Sheila Ann Loizos, Chair, Jacksonville, Florida, Judge Jon Berkley Morgan, Past Chair, Criminal Procedure Rules Committee, Kissimmee, Florida, Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

          Blaise Trettis, Public Defender, Eighteenth Judicial Circuit, Viera, Florida, Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami Florida, Responding with Comments

          PER CURIAM.

         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[1] 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); and 3.989(g) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Expunge; Human Trafficking Victim).[2] 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 rule 3.130. We reject the Committee's proposal to amend rule 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.

         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(1)(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 ...


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