AMEND. TO FLA. RULES OF CRIM. PROC. 3.852, 93,845.
| Decision Date | 01 July 1999 |
| Docket Number | No. 93,845.,93,845. |
| Parties | AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.852 (CAPITAL POSTCONVICTION PUBLIC RECORDS PRODUCTION) AND RULE 3.993 (RELATED FORMS). |
| Court | Florida Supreme Court |
Stan R. Morris, Circuit Judge, Eighth Judicial Circuit, Gainesville, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, and Richard B. Martell, Chief, Capital Appeals, Tallahassee, Florida; Michael R. Ramage, General Counsel, Tallahassee, Florida, on behalf of The Florida Department of Law Enforcement; Gregory C. Smith, Capital Collateral Counsel, Tallahassee, Florida, on behalf of the Northern Region; Todd G. Scher, Chief Assistant CCRC, Miami, Florida, on behalf of the Southern Region; John W. Moser, Capital Collateral Regional Counsel, and Michael P. Reiter, Chief Assistant CCRC, Tampa, Florida, on behalf of the Middle Region, Responding with comments.
On September 18, 1998, this Court adopted on an emergency basis a revised version of Florida Rule of Criminal Procedure 3.852, which had been proposed by the Committee on Florida Rule of Criminal Procedure 3.852 established by this Court to recommend amendments to the rule in light of the legislature's enactment of a new section of the Public Records Law, section 119.19, Florida Statutes (Supp.1998), concerning public records production for capital postconviction defendants. Amendments to Florida Rules of Criminal Procedure, 723 So.2d 163 (Fla. 1998). In that decision, we asked interested persons to submit to this Court by December 1, 1998, their comments concerning the rule as adopted. Since that date, we have held oral argument, reviewed comments and proposed changes, and otherwise considered the rule. In addition to making changes based on comments we received, this Court sua sponte has made additional substantive and technical modifications. As to Florida Rule of Criminal Procedure 3.993, which provides accompanying forms, we have amended forms (d) and (f) to conform to subdivisions (e)(2) and (e)(4) in rule 3.852, and we have made technical corrections in several of the forms. We hereby adopt the appended amendments to Florida Rules of Criminal Procedure 3.852 and 3.993 and address below the substantive changes we have made in rule 3.852.
We have added subdivision (c)(3), requiring proof of receipt, in order to assure that the record in each case is complete as to receipt of notification.
During oral argument, the necessity of indicating that duplicate production is not required became apparent. Thus, we have also added subdivision (c)(4), which exempts from production any public records previously filed in the trial court.
We have amended subdivision (d)(1) at the request of the attorney general to provide that the state attorney shall be directed to provide each law enforcement agency involved "in the investigation of the capital offense" with notification of this court's mandate affirming the death sentence. We have clarified subdivisions (d) and (e) to indicate that time periods for further notification and production shall begin after "receipt of written notification" of this Court's mandate.
We have clarified subdivision (d)(4) to provide that the attorney general is to "notify" all persons or agencies identified pursuant to subdivisions (d)(2) or (d)(3) that the persons or agencies are required by section 119.19(6)(b), Florida Statutes (Supp.1998), to copy, index, and deliver records to the records repository. This subdivision previously required the attorney general to "request" of the persons or agencies that public records be "copied, sealed, indexed and delivered" to the repository. This change was suggested by the attorney general to clarify that the attorney general's notification directs the persons or agencies to carry out acts that are required and are not discretionary. For further clarification we have implemented in subdivision (d)(4) the statutory mandate that the identified persons or agencies bear the costs related to copying, indexing, and delivering records to the repository.
We have amended subdivision (e)(2) at the request of the Capital Collateral Regional Counsel (Middle Region) (CCRC-M) to clarify that state attorneys shall bear the costs of copying, indexing, and delivering their records to the records repository. This change is consistent with the requirements for `other agencies to bear such costs.
As to subdivision (f), concerning exempt or confidential public records, both the attorney general and CCRC suggested in oral argument that costs could be reduced if we amended the rule to provide that exempt or confidential records be transported directly to the trial court rather than initially to the records repository and then to the trial court as now provided in subdivision (f). Although we find some merit in this approach, we decline to make this substantive amendment because section 119.19(7)(a) and (b), Florida Statutes (Supp.1998), specifically provides that exempt or confidential public records be delivered to the records repository and then, upon the entry of an appropriate court order, to the trial court. We encourage the legislature to revisit this provision and to consider whether the most efficient method of transferring this category of records would be to require that the records be transferred directly to the trial court rather than to the repository.
We do, however, modify technical aspects of subdivision (f) for purposes of clarification. First, we permit the use of "containers" rather than "boxes" for public records production in order to clarify that there may be discretionary use of containers when appropriate that are not "boxes" for storage and transportation of sealed records. Second, in response to CCRC's raising of an issue as to the potential for ex parte communications concerning exempt or confidential records, we have removed from (f)(2) the provision as to the presence of a representative of the delivering agency at an unsealing. We leave the handling of the chain of custody of the records to the trial court, and we caution against any ex parte communications.
We have modified subdivision (h)(2) as follows (new language is indicated by underscoring; deletions are indicated by strike-through type):
(2) If on October 1, 1998, a defendant is represented by collateral counsel and has initiated the public records process, collateral counsel shall, within 90 days of after October 1, 1998, or within 90 days after the production of records which were requested prior to October 1, 1998, whichever is later, file with the trial court and serve a written demand for any additional public records that have not previously been the subject of a request for public records. The request for these records shall be treated the same as a request pursuant to subdivisions (d)(3) and (d)(4) of this rule, and the records shall be copied, indexed, and delivered to the records repository as required in subdivision (e)(5) of this rule. A person or agency may object to any request under this subdivision, and the trial court shall hold a hearing and rule on the objection within 30 days after filing of the objection.
The preceding amendment to subdivision (h)(2) is in response to comments by CCRC indicating that issues continue to exist in respect to records requested by postconviction counsel prior to October 1, 1998, that have not been produced within the required time period for requests for additional records. We have amended subdivision (h)(3) as follows:
We deleted the first sentence in subdivision (h)(3) because we find the sentence to be unnecessary and inappropriate. We also amended subdivision (h)(3) in order to conform this subdivision to the other subdivisions as to the payment of costs.
We have deleted subdivision (i)(1) entirely because we find it to be redundant. Thus, subdivisions (i)(2) and (i)(3) now become subdivisions (i)(1) and (i)(2), respectively. For clarification, we have modified subdivision (i)(2), now subdivision (i)(1), by adding a subdivision (D), which provides: "(D) shall be served in accord with subdivision (c)(1) of this rule."
We have deleted subdivision (l), which precludes collateral counsel from soliciting another person to make a request for public records on behalf of a postconviction defendant, because this provision is not necessary or appropriate for this rule. We have replaced the deleted subdivision (l) with the following new subdivision (l), which contains the following provisions as to scope of production and resolution of production issues:
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