In re Amendments to the Fla. Rules of Criminal Procedure

• Decision Date: 29 October 2015
• Docket Number: No. SC15–177.,SC15–177.
• Citation: 188 So.3d 764 (Mem)
• Parties: In re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE.
• Court: Florida Supreme Court

188 So.3d 764 (Mem)

In re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE.

No. SC15–177.

Supreme Court of Florida.

Oct. 29, 2015.

Meredith Charbula, Chair, Criminal Procedure Rules Committee, Jacksonville, FL; Judge Samantha Lee Ward, Past

Chair, Criminal Procedure Rules Committee, Tampa, FL; John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.

Arthur Ivan Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Fernandina Beach, FL; Alan S. Johnson, Chief Assistant State Attorney, Fifteenth Judicial Circuit, West Palm Beach, FL; Robert Blaise Trettis, Public Defender, Eighteenth Judicial Circuit, Viera, FL; Julianne M. Holt, Public Defender, Thirteenth Judicial Circuit, Tampa, FL; Rebecca A. Sharpless, Litigation Committee Co–Chair, American Immigration Lawyers Association, South Florida Chapter, Coral Gables, FL; Jacob Lawrence Ratzan, President, American Immigration Lawyers Association, South Florida Chapter, Miami, FL; Carlos Jesus Martinez, Public Defender, John Eddy Morrison, Assistant Public Defender, and Jonathan Harris Greenberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL; Luke Newmanof Luke Newman, PA, Tallahassee, FL; and William Rudolf Ponallof Snure & Ponall P.A., Winter Park, FL, Responding with Comments.

PER CURIAM.

This matter is before the Court for consideration of the regular-cycle report of proposed amendments to the Florida Rules of Criminal Procedure filed by The Florida Bar's Criminal Procedure Rules Committee (Committee). See Fla. R. Jud. Admin. 2.140(b). We have jurisdiction¹ and adopt the amendments as discussed below.

BACKGROUND

The Committee proposes amendments to Florida Rules of Criminal Procedure 3.112(Minimum Standards for Attorneys in Capital Cases), 3.121(a) (Arrest Warrant (Issuance)), 3.172(c) (Acceptance of Guilty or Nolo Contendere Plea (Determination of Voluntariness)), 3.192 (Motions for Rehearing), 3.212(d) (Competence to Proceed: Hearing and Disposition (Release on Finding of Incompetence)), 3.220 (Discovery), 3.281 (List of Prospective Jurors), 3.300(d) (Voir Dire Examination, Oath, and Excusing of Member (Juror Voir Dire Questionnaires)), 3.410 (Jury Request to Review Evidence or for Additional Instructions), 3.590(a) (Time for and Method of Making Motions; Procedure; Custody Pending Hearing (Time for Filing in Noncapital Cases)), 3.984 (Application for Criminal Indigent Status), 3.985 (Standard Jury Instructions), and 3.986 (Forms Related to Judgment and Sentence). As required by rule 2.140(b)(2), the Committee published the proposals in The Florida Bar News before filing its report with the Court. Numerous comments were received by the Committee. The Board of Governors of The Florida Bar unanimously approved the Committee's proposals. The Court also published the proposals for comment. Eight comments were received pertaining to the proposals to amend rules 3.112, 3.172(c), and 3.220, to which the Committee responded.

Having considered the Committee's proposals, the comments filed, and the response to the comments, we adopt the Committee's proposals to amend rules 3.121(a), 3.192, 3.212(d), 3.220, 3.410, 3.590(a), 3.984, and 3.986as proposed. The proposals to amend rules 3.112and 3.172are adopted with modifications, while we reject the proposals to amend rules 3.281, 3.300(d), and 3.985.

AMENDMENTS

The amendments to the rules are discussed below.²

The Court adopts the proposal to amend rule 3.112, except with respect to subdivision (f) of rule 3.112(Minimum Standards for Attorneys in Capital Cases (Lead Trial Counsel)). In subdivision (f), the Court rejects the proposal to remove the word "defense" from the term "lead defense counsel." In In re Amendment to Florida Rules of Criminal Procedure–Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 759 So.2d 610, 611 (Fla.1999), the Court took "an important step in ensuring the integrity of the judicial process in capital cases by adopting a rule of criminal procedure to help ensure that competent representation will be provided to indigent capital defendants in all cases." The Court advanced that goal when it extended rule 3.112to apply to public defenders and private counsel, while rejecting a "grandfather clause" that would have allowed attorneys who did not meet the new requirements but who had previously handled capital cases to continue representing capital defendants. In re Amend. to Fla. Rules of Crim. Pro.–Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 820 So.2d 185, 186–87, 192 (Fla.2002). To remove "defense" from "lead defense counsel" in order to permit prosecutors to substitute prior capital trial prosecution experience for experience as defense counsel so that they may participate as lead defense counsel in capital cases is contrary to the goals in adopting rule 3.112, and fails to account for the differences in the roles of prosecutors and defense attorneys.

Rule 3.121(Arrest Warrant) is amended in two regards. First, subdivision (a)(4), which requires that the arrest warrant specify the name of the person to be arrested, is amended to require a photograph of the individual if one is available. Second, subdivision (a)(7), which pertains to bailable offenses, is amended to require not only the amount of bail, but also "other conditions of release."

Rule 3.172(c)(Acceptance of Guilty or Nolo Contendere Plea (Determination of Voluntariness)) includes a number of amendments. First, the trial judge is required, when determining voluntariness, to place the defendant under oath, address him or her personally, and determine on the record that he or she understands certain rights. Second, those rights are now set out individually with headings, which include the following: "Nature of the Charge," "Right to Representation," "Right to Trial by Jury and Attendant Rights," "Effect of Plea," "Waiving Right to Trial," "Questioning by Judge," "Terms of Plea Agreement," "Deportation Consequences," "Sexually Violent or Sexually Motivated Offenses," and "Driver's License Suspension or Revocation." The Court rejects the Committee's proposal to label subdivision (c)(8) as "Immigration Consequences," and to include in that subdivision consequences that exceed deportation. Instead, subdivision (c)(8) is designated "Deportation Consequences," and includes various requirements placed on the lower court accepting a guilty or nolo contendere plea when deportation may be a consequence of said plea. These amendments follow the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and this Court's decision in Hernandez v. State, 124 So.3d 757 (Fla.2012), each pertaining to ineffective assistance of trial counsel with respect to whether counsel has a duty to advise his or her client whether an offense to which he or she is pleading guilty would subject the client to deportation.

Rule 3.192(Motions for Rehearing) is amended to add a reference to rule 3.801 (Correction of Jail Credit) as another of the postconviction proceedings to which the rule does not apply.

In rule 3.212(d)(Competence to Proceed: Hearing and Disposition (Release on Finding of Incompetence)), the phrase "for a period not to exceed 1 year" is deleted in order that the circuit court will retain jurisdiction to allow for the repeated process of reexamination of mental competency and the setting of the same or new conditional release conditions where the defendant is found to not be mentally competent and does not meet the criteria for commitment.

The Court amends rule 3.220(h)(1)(Discovery (Discovery Depositions; Generally)) by deleting the phrase "except a subpoena duces tecum" to remove the distinction between the criminal and civil discovery rules with respect to the procedure for taking depositions.

Rule 3.410(Jury Request to Review Evidence or for Additional Instructions) is amended in light of this Court's decision in Hazuri v. State, 91 So.3d 836 (Fla.2012). In Hazuri, the Court held that after a jury request for trial transcripts during deliberations at trial, the trial court is required to inform the jury that it has a right to request a read-back of testimony and that the jury should clarify which portion of the testimony it wants to review. The addition of subdivision (b), which sets out the procedures the trial judge is to follow when the jury requests to have the transcripts of trial testimony, is added in response to the Hazuri decision. Finally, new subdivision (c) requires that the read-back of transcripts be conducted consistent with subdivision (a).

In rule 3.590(a)(Time for and Method of Making Motions; Procedure; Custody Pending Hearing (Time for Filing in Noncapital Cases)), the phrase "in cases in which the state does not seek the death penalty" is moved to the beginning of the rule to clarify when the rule applies. In addition, the rule is amended to reflect that the motion for new trial or in arrest of judgment may be made either orally in open court or in writing and filed with the clerk's office.

With regard to rule 3.984(Application for Criminal Indigent Status), the form is amended to conform to the minimization requirements of Florida Rule of Judicial Administration 2.425(Minimization of the Filing of Sensitive Information), to require only the last four digits of a driver's license or identification number.

The Court also amends rule 3.986(Forms Related to Judgment and Sentence) to conform to the minimization requirements of rule 2.425, to replace the victim's phone number with that of the prosecuting attorney, the victim's attorney, or the victim advocate, under the section for "Restitution Order."

Finally, the Court declines to amend certain proposals advanced by the Committee, including the proposed amendments to rules 3.281, 3.300(d), and 3.985.

The Court rejects the Committee's proposal to amend rule 3.281 (List of Prospective Jurors) by removing...