Amendments to Florida Rules of Criminal Procedure, In re, 72468

• Decision Date: 03 November 1988
• Docket Number: No. 72468,72468
• Citation: 536 So.2d 992
• Parties: In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE. *
• Court: Florida Supreme Court

Page 992

536 So.2d 992

In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE. ^*

No. 72468.

Supreme Court of Florida.

Nov. 3, 1988.

Revisions Approved Dec. 30, 1988.

Original Proceeding--Florida Rules of Criminal Procedure.

Rutledge R. Liles, President, Jacksonville, Stephen N. Zack, President-elect, Miami, Gerald Thomas Bennett, Chairman, Crim. Procedure Rules Committee, Gainesville, and John F. Harkness, Jr., Executive Director, Tallahassee, for petitioner, The Florida Bar.

Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, responding.

REVISED OPINION

PER CURIAM.

The Florida Bar Rules of Criminal Procedure Committee has petitioned this Court to consider proposed amendments to the Florida Rules of Criminal Procedure pursuant to Florida Rule of Judicial Administration 2.130. In addition, this Court has submitted two proposed rule amendments for consideration. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The rule changes proposed by the committee, and approved by the Court are intended, inter alia, to conform the Florida Rules of Criminal Procedure to the 1985 enactment of the "Florida Mental Health Act" amending chapters 394 and 916 of Florida Statutes. The rule changes replace the term "competence to stand trial" with "incompetence to proceed," and also amend the standards to be applied to that determination. The intended effect of the amendments is to avoid tying mentally ill or deficient defendants in the criminal justice system to civil commitment procedures.

The rule changes proposed by the Court concern the pretrial detention of defendants as well as requiring additional plea colloquy when a defendant pleads guilty or nolo contendere.

Rule 3.133 is amended to provide for pretrial release for defendants who have not been charged in an indictment or information within thirty days of being taken into custody.

Rule 3.172(c)(viii) is added to require judges presiding at plea colloquies to inform the defendant pleading guilty or nolo contendere that, if they are not a United States citizen, their plea subjects them to deportation subject to the laws and regulations of the Immigration and Naturalization Service. However, in order to protect the defendant's due process rights, the judge shall not be required to inquire as to whether the defendant is a United States citizen.

We hereby adopt these amendments to the Florida Rules of Criminal Procedure.

Appended to this opinion are the amended and new Florida Rules of Criminal Procedure. Deletions are indicated by use of struck-through type. New language is indicated by underscoring. All rules and statutes in conflict with the following rules are hereby superceded as of the effective date of these rules. The committee notes are not adopted by the Court. These amendments shall become effective January 1, 1989, at 12:01 a.m.

It is so ordered.

EHRLICH, C.J., and SHAW, BARKETT and KOGAN, JJ., concur.

GRIMES, J., concurs with an opinion, in which SHAW and KOGAN, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion, in which McDONALD, J., concurs.

APPENDIX

Rule 3.133 [ADDED: Pretrial Probable Cause Determinations and Adversary Preliminary Hearings]

(b) [ADDED: Adversary Preliminary Hearings]

(6) Pretrial Detention. In the event that the defendant remains in custody and has not been charged in an information or indictment within 30 days from the date of his or her arrest or service of capias upon him or her, he or she shall be released from custody on their own recognizance on the 30th day unless the state can show good cause why the information or indictment has not been filed. If good cause is shown the state shall have 10 additional days to obtain an indictment or file an information. If the defendant has not been so charged within this time he or she shall be automatically released on his or her own recognizance. In no event shall any defendant remain in custody beyond 40 days unless he or she has been charged with a crime by information or indictment.

Rule 3.172 [ADDED: Acceptance of Guilty or Nolo Contendere Plea]

(c)(viii) That if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.

RULE 3.040. COMPUTATION OF TIME

In computing any period of time prescribed or allowed by these rules, [DELETED: except Rule 3.130 and 3.131], by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday or a legal holiday, in which event the period shall run until the end of [DELETED: a] [ADDED: the] next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation[ADDED: , except for the periods of time of less than 7 days contained in Rules 3.130, 3.132(a) and (c), and 3.133(a).]

1988 Amendment:

The 1983 amendments resulted in the reallocation of the time periods in Rule 3.131 to Rule 3.133, and also added important 5-day period in the new rule regarding pretrial detention in Rule 3.132.

Rule 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY PRELIMINARY HEARINGS

(b) Adversary Preliminary Hearings

(6) [ADDED: Pretrial Detention. In the event that the defendant remains in custody and has not been charged in an information or indictment within 30 days from the date of his or her arrest or service of capias upon him or her, he or she shall be released from custody on their own recognizance on the 30th day unles the state can show good cause why the information or indictment has not been filed. If good cause is shown the state shall have 10 additional days to obtain an indictment or file an information]. [ADDED: If the defendant has not been so charged within this time, he or she shall be automatically released on his or her own recognizance. In no event shall any defendant remain in custody beyond 40 days unless he or she has been charged with a crime by information or indictment.]

RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(c)[ADDED: (viii) That if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.]

INTRODUCTORY NOTE RELATING TO AMENDMENTS TO RULES 3.210 TO 3.219.

In 1985, the Florida Legislature enacted amendments to Part I of Chapter 394, the "Florida Mental Health Act," and substantial amendments to Chapter 916 entitled "Mentally Deficient and Mentally Ill Defendants." The effect of the amendments is to avoid tying mentally ill or deficient defendants in the criminal justice system to civil commitment procedures in the "Baker Act." Reference to commitment of a criminal defendant found not guilty by reason of insanity has been removed from Section 394.467, Florida Statutes. Chapter 916 now provides for specific commitment criteria of mentally ill or mentally retarded criminal defendants who are either incompetent to proceed or who have been found not guilty by reason of insanity in criminal proceedings.

In part, the following amendments to Rules 3.210 to 3.219 are designed to reflect the 1985 amendments to Chapters 394 and 916.

Florida judges on the criminal bench are committing and HRS mental health treatment facilities are admitting and treating those mentally ill and mentally retarded defendants in the criminal justice system who have been adjudged incompetent to stand trial and defendants found to be incompetent to proceed with violation of probation and community control proceedings. Judges are also finding such defendants not guilty by reason of insanity and committing them to HRS for treatment yet there were no provisions for such commitments in the rules.

Some of the amendments to Rules 3.210 to 3.219 are designed to provide for determinations of whether or not a defendant is mentally competent to proceed in any material stage of a criminal proceeding, and provide for community treatment or commitment to the Department of Health and Rehabilitative Services when a defendant meets commitment criteria under the provisions of Chapter 916 as amended in 1985.

RULE 3.210. [DELETED: COMPETENCE] [ADDED: INCOMPETENCE] TO [DELETED: STAND TRIAL] [ADDED: PROCEED]: PROCEDURE FOR RAISING THE ISSUE

(a) A person accused of [DELETED: a crime] [ADDED: an offense or a violation of probation or community control] who is mentally incompetent to [DELETED: stand trial] [ADDED: proceed at any material stage of a criminal proceeding] shall not be proceeded against while he is incompetent.

(1) [ADDED: A "material stage of a criminal proceeding" shall include the trial of the case, pre-trial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or violation of community control proceedings, sentencing, hearings on issues regarding a defendant's failure to comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered. The terms "competent", "competen...