AMEND. TO FLA. RULES OF CRIM. PROCEDURE, SC00-562.

• Citation: 794 So.2d 457
• Decision Date: 02 November 2000
• Docket Number: No. SC00-562.,SC00-562.
• Parties: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.
• Court: Florida Supreme Court

794 So.2d 457

AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.

No. SC00-562.

Supreme Court of Florida.

November 2, 2000.

Herman J. Russomanno, President, The Florida Bar, Miami, Florida; Terrence J. Russell, President-elect, The Florida Bar, Fort Lauderdale, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; O.H. Eaton, Jr., Chair, Florida Bar Criminal Procedure Rules Committee, Sanford, Florida, for Petitioner.

Nancy A. Daniels, Public Defender, and Paula Saunders and Chet Kaufman, Assistant Public Defenders, Tallahassee, Florida; Bob Dillinger, Public Defender, St. Petersburg, Florida; Julianne M. Holt, Public Defender, and John J. Skye, Assistant Public Defender, Tampa, Florida; Bennett H. Brummer, Public Defender, and John E. Morrison, Beth C. Weitzner and Rory S. Stein, Assistant Public Defenders, Miami, Florida; and Honorable Robert W. Lee, County Court Judge, Fort Lauderdale, Florida, Responding.

PER CURIAM.

We have for consideration the quadrennial report of The Florida Bar Criminal Procedure Rules Committee proposing rules changes in accordance with Florida Rule of Judicial Administration 2.130(c)(3). We have jurisdiction. See art. V, § 2(a), Fla. Const. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed changes were submitted to the Board of Governors of The Florida Bar for its approval, and the Board approved the changes unanimously. The proposed changes were published for comments and several were filed.

The Committee asks us to amend Florida Rules of Criminal Procedure 3.025, 3.030, 3.111, 3.125, 3.190, 3.191, 3.213, 3.217, 3.218, 3.219, 3.692, 3.800, 3.851, 3.986, 3.987, 3.989, 3.993, and 3.994.¹ After reviewing the Committee's proposals, considering the comments filed by interested persons, and hearing oral argument, we adopt the Committee's proposed changes with the exceptions noted below.

We decline to adopt the proposed change to subdivision (d)(4) (waiver of counsel) of rule 3.111, Providing Counsel for Indigents, which would remove language requiring two attesting witnesses to all out-of-court waivers of counsel. At oral argument, the Public Defender of the Second Judicial Circuit expressed concern regarding defendants' execution of out-of-court waivers without a formal procedure. Since all waivers of counsel must be voluntary, we conclude that the Public Defender's concerns have merit. Therefore, we reject the amendment to subdivision (d)(4).

However, we do adopt the new subdivision (e)(2) of rule 3.111, which conforms the criminal rules to Florida Rule of Appellate Procedure 9.140(b)(5) which requires that defense counsel not be allowed to withdraw until substitute counsel has been obtained or appointed, or a statement has been filed with the appellate court that the appellant has exercised the right to self-representation.

We also do not adopt the proposed amendment to subdivision (h)(4) of rule 3.190, Pretrial Motions, which would add language requiring motions to suppress evidence to be made "a reasonable time" before trial unless good cause is demonstrated for the delay. Numerous problems that could arise from the use of the "reasonable time" language were raised in the comments and discussed at oral argument. The Chair of the Committee, the Honorable O.H. Eaton, Jr., Circuit Judge of the Eighteenth Judicial Circuit Court, agreed that because the trial court judges of this State already have the inherent authority to manage their dockets in such a manner as to address the time for filing of motions to suppress, "criminal justice won't come to a standstill" if this proposed rule change is not adopted. In light of this inherent authority, we see no reason to adopt the proposed amendment at this time.

We adopt all the proposed amendments to rule 3.851, Collateral Relief After Death Sentence Has Been Imposed,² with minor modifications and the addition of a provision to new subdivision (d), Incompetency to Proceed in Capital Collateral Proceedings, as explained below. The addition of the language "And Affirmed on Direct Appeal," to the title and subdivision (a), Scope, is intended to remove ambiguity that could result when a death sentence is imposed but thereafter is reduced to a life sentence on direct appeal. We have modified the proposed amendments to subdivisions (b) and (c) to delete references to time periods which are no longer necessary. New subdivision (d), Incompetence to Proceed in Capital Collateral Proceedings, is added in response to this Court's decision in Carter v. State, 706 So.2d 873, 876 n. 3 (Fla.1997). In that case, the Court held that "a judicial determination of competency is required when there are reasonable grounds to believe that a capital defendant is incompetent to proceed in postconviction proceedings in which factual matters are at issue, the development or resolution of which require the defendant's input." Carter, 706 So.2d at 875. In drafting proposed subdivision (d), the Committee looked to rules 3.210-3.212, which govern trial-level competency determinations. However, it appears that the Committee overlooked the need for a provision similar to rule 3.211(d), which specifies the written findings that must be contained in an expert's report to the trial court. We believe that the expert report should contain detailed findings similar to those required by rule 3.211(d). Accordingly, we have added a provision modeled after that rule. We also have made minor changes to subdivisions (d)(1) and (d)(4) to make clear that the rule applies in collateral proceedings.

We adopt the following amendments as proposed by the Committee. Rule 3.025, State and Prosecuting Attorney Defined, is adopted to clarify that when terms such as "state," "state attorney," "prosecutor," and "prosecution" are used in the rules they should be construed to mean the prosecuting authority representing the state.

Rule 3.030, Service of Pleadings and Papers, is amended to add subdivision (b)(5) which regulates the electronic service of pleadings and papers on parties. The amendment is modeled after Florida Rule of Civil Procedure 1.080(b)(5), which addresses service by facsimile. The amendment to subdivision (d) recognizes that electronic filing is permissible.

Rule 3.191, Speedy Trial, is amended to require demands for speedy trial and notice of expiration of speedy trial time to be separately captioned and filed so as to prevent these time-triggering pleadings from being buried in pleadings addressing unrelated matters. Additionally, the rule is amended to require service of a copy of the pleading on the prosecuting authority.

Rules 3.213, 3.217, 3.218 and 3.219 are amended to change the reference from the Department of Health and Rehabilitative Services to the Department of Children and Family Services.

Rules 3.692, Petition to Seal or Expunge, and 3.989, Affidavit, Petition, and Order to Expunge or Seal Forms, are amended to require that a petition seeking to seal or expunge nonjudicial criminal history records be accompanied by a certificate of eligibility issued to the petitioner by Florida Department of Law Enforcement. The amendments conform these rules to the requirements of State v. D.H.W., 686 So.2d 1331 (Fla.1996).

Rule 3.800, Correction, Reduction, and Modification of Sentences, is amended to provide that sentences that fail to grant proper credit for time served, when proper credit is determinable from the record without the necessity of an evidentiary hearing, are illegal and correctable under subdivision (a). The purpose of this amendment is to conform subdivision (a) to this Court's opinion in State v. Mancino, 714 So.2d 429 (Fla.1998).³

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; 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, 2001, at 12:01 a.m.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

APPENDIX

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 state of Florida.

Committee Notes

2000 Adoption. This provision is new. Its purpose is to include the Office of State-wide Prosecution as a prosecuting authority under these rules. No substantive changes are intended by the adoption of this rule.

RULE 3.030. SERVICE OF PLEADINGS AND PAPERS

(a) Service; When Required. 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 as toabout 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. When under these rules service is required or permitted to be made on a party represented by an attorney, the service shall be made on the attorney unless service on the party is ordered by the court. Service on the attorney or on a party shall be made by delivering a copy to the party or by mailing it to the 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; or

(2) leaving it at the attorney's office with the secretary or other person in charge; or

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

(4) if...