Amendments to the Florida Rules of Criminal Procedure, s. 87679

• Decision Date: 27 November 1996
• Docket Number: Nos. 87679,s. 87679
• Citation: 685 So.2d 1253
• Parties: 21 Fla. L. Weekly S518 AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE; Amendment to Florida Rule of Criminal Procedure 3.190. & 88807.
• Court: Florida Supreme Court

Page 1253

685 So.2d 1253

21 Fla. L. Weekly S518

AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE;

Amendment to Florida Rule of Criminal Procedure 3.190.

Nos. 87679 & 88807.

Supreme Court of Florida.

Nov. 27, 1996.

Two Consolidated Original Proceedings--Florida Rules of Criminal Procedure.

John W. Frost, II, President, Bartow; Edward R. Blumberg, President-elect, Miami, and John F. Harkness, Jr., Executive Director, Tallahassee, on behalf of The Florida Bar; and Honorable Dedee S. Costello, Chair, Florida Bar Criminal Procedure Rules Committee, Panama City, for Petitioner.

Michael R. Ramage, General Counsel, Tallahassee, on behalf of The Florida Department of Law Enforcement.

PER CURIAM.

We have for consideration The Florida Bar Criminal Procedure Rules Committee's quadrennial report of proposed rules changes filed in accordance with Florida Rule of Judicial Administration 2.130(c)(3). We have consolidated the rules committee's report with an emergency petition to amend Florida Rule of Criminal Procedure 3.190 which was filed by the committee. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The rules committee asks us to amend Florida Rules of Criminal Procedure 3.172, 3.180, 3.190, 3.212, 3.216, 3.780, 3.850, 3.986 and to add new rules 3.090 and 3.361. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed changes were submitted to The Florida Bar Board of Governors, who unanimously recommended approval.

After reviewing the committee's quadrennial report and comments filed by interested parties and hearing oral argument on the matter, and after considering the committee's emergency petition to amend rule 3.190, we adopt the appended amendments to the Florida Rules of Criminal Procedure.

The proposed amendment to rule 3.850, which was intended to provide a uniform procedure for requesting a belated appeal, is not included. With the agreement of the chair of the Criminal Procedure Rules Committee, it was determined that the subject of belated appeals was better addressed in the appellate rules. See Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla.1996) (adopting Fla.R.App.P. 9.140(j)). However, we add the following Court commentary to rule 3.850, Motion to Vacate, Set Aside, or Correct Sentence:

[ADDED: 1996 Court Commentary. Florida Rule of Judicial Administration 2.071(b) allows for telephonic and teleconferencing communication equipment to be utilized "for a motion hearing, pretrial conference, or a status conference." Teleconferencing sites have been established by the Department of Management Services, Division of Communications at various metropolitan locations in the state. The "Shevin Study" ¹ examined, at this Court's request, the issue of delays in capital postconviction relief proceedings and noted that travel problems of counsel cause part of those delays. The Court strongly encourages the use of the new telephonic and teleconferencing technology for postconviction relief proceedings that do not require evidentiary hearings.]

We also have added subdivision (c) to rule 3.851, Collateral Relief After Death Sentence Has Been Imposed. The new subdivision makes our decision in Huff v. State, 622 So.2d 982 (Fla.1993), applicable to all rule 3.850 motions filed by a death row inmate. It also makes clear that the new subdivision applies only to rule 3.850 motions that have not been ruled on as of January 1, 1997. Consistent with the Court commentary added to rule 3.850, we add a commentary to rule 3.851 strongly encouraging the use of the new telephonic and teleconferencing technology for hearings held in compliance with the new subdivision. The commentary also explains that the postconviction defendant's attendance is not required at a rule 3.851(c) hearing.

We have modified the proposed amendment to subdivision (b) of rule 3.180, Presence of Defendant, ² to provide:

A defendant is present for purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard [ADDED: through counsel] on the issues being discussed.

In order to accomplish the objectives outlined in our opinion amending the Florida Rules of Appellate Procedure, Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, we also have amended rule 3.800(b) and added new subdivision (1) to rule 3.170.

The appended amendments include the following changes as proposed by the rules committee. New rule 3.090, Pleading Captions, is similar to Florida Rule of Civil Procedure 1.100(c)(1) and requires captions on all pleadings, orders and other papers filed in criminal cases.

The amendment to rule 3.172, Acceptance of Guilty or Nolo Contendere Plea, is an editorial change that was necessary to reflect the amendment to rule 3.180.

Subdivision (d) of rule 3.190, Pretrial Motions, is amended to clarify that a traverse is only required to deny factual matters set forth in a sworn motion to dismiss under subdivision (c)(4) of the rule. In response to the committee's emergency petition to amend rule 3.190, we add new subdivision (k) to that rule. The new subdivision, entitled "Motion to Expedite," is added to comport with sections 825.106 and 918.0155, Florida Statutes (1995).

Subdivision (c)(5)(B) of rule 3.212, Competence to Proceed, is amended to allow the prosecuting attorney to file a motion to redetermine competency.

Subdivision (e) of rule 3.216, Insanity at Time of Offense, is amended to provide for the filing of a notice of intent to rely on any mental-health defense other than insanity as soon as a good-faith determination has been made to utilize the defense but no later than thirty days prior to trial. Subdivision (f) of that rule is amended to provide for a court-appointed expert, upon motion of the state, if the notice filed under subdivision (e) indicates that the defendant will rely on the testimony of an expert who has examined the defendant.

New rule 3.361, Attendance of Witnesses, authorizes the court or both parties to excuse a witness summoned by a trial subpoena.

The amendment to subdivision (c) of rule 3.780, Sentencing Hearing for Capital Cases, clarifies that both the state and the defense have a right to make one opening statement and one closing argument at the penalty phase of a capital trial.

Finally, in accordance with the amended petition filed by the Criminal Procedure Rules Committee August 26, 1996, the rule 3.986(b) judgment form has been amended to comport with recent amendments to section 943.325, Florida Statutes (1995).

Accordingly, the Court commentary rule 3.850 is amended as provided in this opinion and the remainder of the Florida Rules of Criminal Procedure are amended as reflected in the appendix. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes and Court commentary are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 1997, at 12:01 a.m.

It is so ordered.

KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

APPENDIX

[ADDED: RULE 3.090.] [ADDED: PLEADING CAPTIONS]

[ADDED: Every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be. All papers filed in the action shall be styled in such a manner as to indicate clearly the subject matter of the paper and the party requesting or obtaining relief.]

RULE 3.170. PLEAS

(a) Types of Plea; Court's Discretion. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. Except as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to the charge at the first appearance under rule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed. A plea of not guilty may be entered in writing by counsel. Every plea shall be entered of record, but a failure to enter it shall not affect the validity of any proceeding in the cause.

(b) Pleading to Other Charges. Having entered a plea in accordance with this rule, the defendant may, with the court's permission, enter a plea of guilty or nolo contendere to any and all charges pending against him or her in the State of Florida over which the court would have jurisdiction and, when authorized by law, to charges pending in a court of lesser jurisdiction, if the prosecutor in the other case or cases gives written consent thereto. The court accepting such a plea shall make a disposition of all such charges by judgment, sentence, or otherwise. The record of the plea and its disposition shall be filed in the court of original jurisdiction of the offense. If a defendant secures permission to plead to other pending charges and does so plead, the entry of such a plea shall constitute a waiver by the defendant of venue and all nonjurisdictional defects relating to such charges.

(c) Standing Mute or Pleading Evasively. If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.

(d) Failure of Corporation to Appear. If the defendant is a corporation and fails to appear, a plea of not guilty shall be entered of record.

(e) Plea of Not Guilty; Operation in Denial. A plea of not guilty is a denial of every material allegation in the indictment or information on which the defendant is to be tried.

(f) Withdrawal of Plea of Guilty. The court may in its discretion, and...