Clarification of Florida Rules of Practice and Procedure, In re
| Decision Date | 31 July 1973 |
| Citation | 281 So.2d 204 |
| Parties | In re CLARIFICATION OF FLORIDA RULES OF PRACTICE AND PROCEDURE (FLORIDA CONSTITUTION, ARTICLE V, SECTION 2(a)) |
| Court | Florida Supreme Court |
Case of original jurisdiction.
Fla.Const., art. V, § 2(a), F.S.A., contains the following provisions:
The Legislature has the constitutional right to repeal any rule of the Supreme Court by a two-thirds vote, but it has no constitutional authority to enact any law relating to practice and procedure. See State v. Smith and Figgers, 260 So.2d 489 (Fla.1972). The distinction between practice and procedure, which is regulated by the Supreme Court and substantive law which is regulated by the Legislature, is discussed in a concurring opinion, In Re: Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972).
During the past session of the Legislature various laws were enacted which related to practice and procedure. This creates confusion in the judicial branch in that the laws as enacted are in conflict with or supplemental to various rules of practice and procedure. The Supreme Court has considered these laws as expressing the intent of the Legislature and has formulated rules of practice and procedure that attempts to conform with the intent of the Legislature and at the same time further the orderly procedure in the judicial branch.
We point out the provisions of Ch. 73--84, Laws of Florida. Section 2 repeals paragraph e. of Rule 3.16, Florida Appellate Rules, 32 F.S.A. This law passed by a two-thirds vote of the Legislature and was within its constitutional powers. Section 1 of this law attempts to rewrite Rule 3.16, Florida Appellate Rules. This attempted amendment is beyond the powers of the Legislature as the Supreme Court is given exclusive authority to promulgate rules of practice and procedure in the courts. In other words, under the Constitution the Legislature may veto or repeal, but it cannot amend or supersede a rule by an act of the Legislature. Rule 3.16, subd. e., Florida Appellate Rules, is amended so that it shall read in the form attached hereto.
Ch. 73--72, Laws of Florida, attempts to regulate voir dire examination during the trial by amending Fla.Stat. § 53.031, F.S.A., formerly Fla.Stat. (1965) § 54.13, F.S.A. This statute attempts to regulate practice and procedure, a matter solely within the province of the Supreme Court to regulate by rule. At the time the Civil Rules of Procedure were promulgated, there were various statutes in existence relating to procedure. The order adopting the rules (In Re: Florida Rules of Civil Procedure 1967 Revision, Fla., 187 So.2d 598) provided that all statutes not superseded by the rules or in conflict with the rules shall remain in effect as rules promulgated by the Supreme Court. See Sun Insurance Office, Limited v. Clay, 133 So.2d 735 (Fla.1961), where this Court adopted a statute as a rule.
The adoption as rules of the Court of all statutes which have not been superseded or may be in conflict with the rules is primarily a matter of convenience or administrative expediency. Such adoption avoids the question of whether a matter lies within the field of substantive law or procedural law.
The fact that this Court may adopt a statute as a rule does not vest the Legislature with any authority to amend the rule indirectly by amending the statute. In other words, an attempt by the Legislature to amend a statute which has become a part of rules of practice and procedure would be a nullity. This Court has considered Laws of Florida, Ch. 73--72, in connection with Rule 1.431(b), Florida Civil Procedure Rules, 30 F.S.A. relating to voir dire examination, and hereby amends the rule so that the same shall read in accordance with the attached amendment.
Ch. 73--27, Laws of Florida, relates to criminal procedure and authorizes the issuance of a notice to appear for certain crimes and violations. The Court has approved this procedure and appended hereto new Rule 3.125, of the Florida Criminal Procedure Rules. This rule supersedes only that portion of the statute included in the rule and the balance of the statute will remain in effect as part of the substantive law. Also, it was necessary to change the procedure set forth in the rules so as to comply with the requirements of the Florida Case Disposition Reporting System, and a suggested form is included which will enable the preparation of proper notices by the local officials. Rule 3.125 is hereby adopted.
Laws of Florida, Ch. 73--112 (Fla.Stat. (1973) § 61.181, F.S.A.), creating domestic relations depository filled a great need in the judicial system. Rule 1.611, Florida Civil Rules of Procedure, 31 F.S.A. as appended hereto, is amended for the purpose of including the benefits provided in Chapter 73--112.
The Florida Rules of Practice and Procedure are hereby amended in the manner set forth in the appended rules. These amendments and changes shall take effect on the effective date of the statutes to which they are related.
It is so ordered.
(e) Attorney's Fees. When attorney's fees are allowable by law for services in the appellate court the request therefor shall be presented by motion filed with the clerk of the appellate court at or before the time of filing the party's first brief. The motion for attorney's fees shall not be incorporated in the briefs or other bound papers but shall be filed on a separate paper. The assessment of attorney's fees may be remanded to the trial court. If attorney's fees are assessed by the appellate court, the trial court shall have full and complete power and authority upon due application to enforce the payment of fees allowed by the appellate court.
(b) Examination by parties. The parties have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.
Rule 3.125. Notice to appear
(a) Definition. Notice to appear means, unless indicated otherwise, a written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.
(b) By Arresting Officer. If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county court, and demand to be taken before a magistrate is not made, notice to appear may be issued by the arresting officer unless:
(1) The accused fails or refuses to sufficiently identify himself or supply the required information;
(2) The accused refuses to sign the notice to appear;
(3) The officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to himself or others;
(4) The accused has no ties with the jurisdiction reasonably sufficient to assure his appearance or there is substantial risk that he will refuse to respond to the notice;
(5) The officer has any suspicion that the accused may be wanted in any jurisdiction; or
(6) It appears that the accused has previously failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.
(c) By Booking Officer. If the arresting officer does not issue notice to appear because of one of the exceptions listed in (b)(1) and (b)(6) and takes the accused to police headquarters, the booking officer may issue notice to appear if he determines that there is a likelihood that the accused will appear as directed, based upon a reasonable investigation of the following:
(1) Residence and length of residence in the community;
(2) Family ties in the community;
(3) Employment record;
(4) Character and mental condition;
(5) Past record of convictions; or
(6) Past history of appearance at court proceedings.
(d) How and When Served. If notice to appear is issued it shall be prepared in quadruplicate. The...
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