AMENDMENTS TO FLA. RULES CRIM. PROC. 3.851, SC96646.

• Decision Date: 14 July 2000
• Docket Number: No. SC96646.,SC96646.
• Citation: 772 So.2d 532
• Parties: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.851, 3.852 AND 3.993.
• Court: Florida Supreme Court

772 So.2d 532

AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.851, 3..993.

No. SC96646.

Supreme Court of Florida.

July 14, 2000.

Honorable Stan R. Morris, Chairperson, Supreme Court Committee on Postconviction Relief in Capital Cases, Gainesville, Florida; Honorable Philip J. Padovano, Judge, First District Court of Appeal, Tallahassee, Florida; O.H. Eaton, Jr., Committee Member, Seminole County Courthouse, Sanford, Florida; Robert R. Wills, Immediate Past Chair, The Florida Bar Criminal Procedure Rules Committee, Fort Lauderdale, Florida; Jerome C. Latimer, Chair, The Florida Bar Criminal Procedure Rules Committee, St. Petersburg, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; and Robert A. Butterworth, Attorney General, and Richard B. Martell, Chief, Capital Appeals, and Carolyn M. Snurkowski, Division Director, Office of the Attorney General, Tallahassee, Florida, for Petitioners.

Robert A. Butterworth, Attorney General, and Carolyn M. Snurkowski, Division Director, Tallahassee, Florida; Thomas E. Warner, Solicitor General, and T. Kent Wetherell, II, Deputy Solicitor General, Tallahassee, Florida; Reginald J. Brown, Deputy General Counsel, Office of the Governor, and Martin P. McDonnell, Assistant General Counsel, Tallahassee, Florida; Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Fernandina Beach, Florida; Nancy A. Daniels, Public Defender, and W.C. McLain, Michael J. Minerva and Chet Kaufman, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida; Neal A. Dupree, Capital Collateral Regional Counsel, Southern Region, and Todd G. Scher, Litigation Director, Fort Lauderdale, Florida; Gregory C. Smith, Capital Collateral Counsel, Northern Region, and Andrew Thomas, Chief Assistant CCRC, Northern Region, Tallahassee, Florida; Timothy P. Schardl, Special Assistant CCRC, Northern Region, and Mark E. Olive of the Law Offices of Mark E. Olive, P.A., Tallahassee, Florida; John P. Moser and Michael P. Reiter, CCRC, Middle Region, Tampa, Florida; Bennett H. Brummer, Public Defender, and Christina A. Spaulding, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida; Richard Jorandby, Public Defender, and Gary Caldwell, Assistant Public Defender, Chief, Capital Crimes Division, Fifteenth Judicial Circuit, West Palm Beach, Florida; and Stephen Krosschell of Goodman & Nekvasil, P.A., Clearwater, Florida, Responding, Tom Feeney, Johnnie B. Byrd, Jr., and John Dudley Goodlette, Tallahassee, Florida for John E. Thrasher, Speaker, House of Representatives, Amicus Curiae.

PER CURIAM.

In our April 14, 2000 opinion in this case, we proposed amendments to rules 3.851 (Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal), 3.852 (Capital Postconviction Public Records Production), and 3.993 (Forms Related to Capital Postconviction Records Production). We also proposed a new rule that would require real-time transcription of all trials in which the State seeks the death penalty and rule 3.851 proceedings. See Amendments to Florida Rules of Criminal Procedure 3.851, 3.852 & 3.993, 772 So.2d 448 (Fla.2000)(corrected opinion at 772 So.2d 512). With one exception, we postpone the adoption of new rules governing capital postconviction proceedings because, after receiving comments and hearing oral argument, we have been persuaded that further consideration and study is required.¹

Our original proposals were designed to "eliminate those capital postconviction procedures that have historically created unreasonable delays in the process." See id. at 489. Together, the proposed amendments would create a "dual-track" system similar to that contained in the Death Penalty Reform Act of 2000, chapter 2000-3, Laws of Florida. Like the direct appellate process, the postconviction process would begin immediately after the imposition of the death sentence. Within fifteen days of sentencing, collateral counsel would be appointed under proposed rule 3.851 and the production of public records would begin under proposed rule 3.852. This design was meant to allow postconviction counsel the opportunity to immediately begin the investigation of the case and have access to the necessary public records, so that, as proposed, the motion for postconviction relief could be filed within 180 days after this Court issued its mandate on direct appeal.

In proposing these amendments, we expressed concern that if sections 119.07(3)(b), and 119.07(3)(l), Florida Statutes (1999)², which exempt certain records from chapter 119 disclosure, remained in place, the proposed capital postconviction procedures would not function as intended. We feared that the subject exemptions, which the Court has held do not end until the conviction and sentence become final after direct appeal,³ could preclude collateral counsel from effectively investigating potential postconviction claims immediately upon appointment. See id. at 489-490. With this concern in mind, the Court called on the Legislature to assist it in resolving the situation.

When the regular legislative session ended with the exemptions (as applied to capital defendants) intact, we proposed revised rules that extended the time for filing an initial rule 3.851 motion to one year after this Court's mandate issues on direct appeal. We also proposed an additional subdivision to rule 3.852 providing that after mandate issues on direct appeal, records identified as exempt under the subject exemptions would be unsealed and forwarded to the records repository. Amendments to Florida Rules of Criminal Procedure 3.851, 3.852, and 3.993, 772 So.2d 512 (Fla.2000)(published order). Both the original and revised proposals were published in The Florida Bar News, and interested persons were given until June 1, 2000 to file comments. Sixteen comments addressing the Court's proposals were filed.

After careful consideration of these comments and hearing oral argument on the proposed rules, the Court has determined that it must postpone adoption of new rules governing capital postconviction proceedings until it can thoroughly consider a number of critical issues and concerns. For example, before proceeding with new rules, we must give adequate consideration to the Solicitor General's suggestion that this Court has authority to adopt a rule of discovery requiring disclosure of records prior to the conviction and sentence of death becoming final, notwithstanding the continued existence of the public records exemptions discussed above. Another issue of utmost concern is how to ensure the availability of qualified postconviction counsel to handle the increased caseloads that likely will result from the adoption of a dual-track system. This concern appears to be directly impacted by statutes governing the compensation of and scope of representation by registry counsel. We also must address critical issues regarding what constitutes an adequate postconviction motion under rule 3.851. Although it did not use the term "fully pled," our proposal contemplated a rule 3.851 motion sufficiently pled to put the parties and the Court on notice of the issues raised and which of those issues require an evidentiary hearing. However, judging from the views expressed in the comments and at oral argument, our intent in this regard was less than clear from the rule as proposed. Accordingly, more consideration and revision of the requirements of an adequate motion is required. The Court also must develop procedures to govern postconviction proceedings once a death warrant has been signed. Further consideration likewise is warranted for a number of serious concerns raised as to the appropriateness of the time limits contained in the proposed rules.

The need to adequately consider these and other issues precludes us from adopting new rules at this time. See In re Rules Governing Capital Postconviction Actions, 763 So.2d 273 (Fla.2000)

(published order). However, we reiterate that the current rules governing capital postconviction proceedings were revived by our decision in Allen v. Butterworth, 756 So.2d 52 (Fla.2000), and those rules will remain in effect until this Court adopts new ones.

Although not necessary to the adoption of new rules, we also intend to explore other issues we feel are vitally important to the streamlining and betterment of the capital postconviction process. The first is whether we should create a statewide roster of trial judges qualified to try capital cases. This Court already has mandated a training...