Florida Rules of Criminal Procedure., In re
Decision Date | 06 December 1972 |
Docket Number | No. 42218-B,42218-B |
Citation | 272 So.2d 65 |
Parties | In re FLORIDA RULES OF CRIMINAL PROCEDURE. |
Court | Florida Supreme Court |
Appended to this order are amended and new rules of The Rules of Criminal Procedure. These rules shall govern all proceedings within their scope after 12:01 a.m., February 1, 1973. All conflicting rules and statutes are hereby superseded; statutes not superseded shall remain in effect as rules promulgated by the Supreme Court. The committee notes appended to each rule are not adopted by the Court.
It is so ordered.
ADKINS, J., concurs specially with opinion.
The question of whether a rule relates to substantive law or practice and procedure is one which constantly arises. In State v. Garcia, 229 So.2d 236 (Fla.1969), we said:
(p. 238)
Similar definitions were used in Gaspin v. State, 76 Ga.App. 375, 45 S.E.2d 785 (Ga.App.1947); State v. Rodosta, 173 La. 623, 138 So. 124 (1931); Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897 (1960); State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966); State v. Capaci, 179 La. 462, 154 So. 419 (1934).
Practice and procedure pertains to the legal machinery by which substantive law is made effective. Herberle v. P.R.O. Liquidating Co., 186 So.2d 280 (Fla.App. 1st, 1966); State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964); Woodward v. Southern Pac. Co., 35 Cal.App.2d 130, 94 P.2d 1028 (1939); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686 (1953); Jones v. Erie Railroad Co., 106 Ohio St. 408, 140 N.E. 366 (1922); Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963); King v. Schumacher, 32 Cal.App.2d 172, 89 P.2d 466 (1939); and Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948). It has also been said that substantive law creates, defines, adopts and regulates rights, while procedural law prescribes the method of enforcing those rights. Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958); Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555 (1928); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937); State v. District Court, 399 P.2d 583 (Wyo.1965).
Substantive rights are those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property and reputation. Remedial rights arise for the purpose of protecting or enforcing substantive rights. Estate of Gogabashvele v. Kapanadze, 195 Cal.App.2d 503, 16 Cal.Rptr. 77 (1961).
We have said that "practice" means the method of conducting litigation involving rights and corresponding defenses, Skinner v. City of Eustis, 147 Fla. 22, 2 So.2d 116 (1941), or the manner in which the power to adjudicate or determine is exercised, Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930). It has also been said that "practice" is the method of conducting litigation. Dadswell v. State ex rel. Phillips, 186 So.2d 274 (Fla.App.2d 1966).
The entire area of substance and procedure may be described as a "twilight zone" and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made. From extensive research, I have gleaned the following general tests as to what may be encompassed by the term "practice and procedure."
Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. "Practice and procedure" may be described as the machinery of the judicial process as opposed to the product thereof.
Examination of many authorities leads me to conclude that substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property. As to the term "procedure," I conceive it to include the administration of the remedies available in cases of invasion of primary rights of individuals. The term "rules of practice and procedure" includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution. See Kellman v. Stoltz, 1 F.R.D. 726 (N.D., Iowa, 1941).
The Revised Criminal Rules of Procedure describe the machinery by which substantive rights are protected and enforced. They are within the purview of the term "practice and procedure" as used in Fla. Const., art. V, § 3, F.S.A.
I agree with that part of the opinion which defines the difference between "practice and procedure" and substantive law.
I concur in that part of the order approving all of the attached Criminal Rules of Procedure except that I can not approve Rule 3.440, requiring a unanimous jury verdict. Specifically, this rule provides:
e.s.
On May 20, 1968, the Supreme Court of the United States in Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491, held that the Sixth Amendment guarantee of a jury trial was made applicable to the states by the Fourteenth Amendment. However, in the recent case of Apodaca et al. v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 the Supreme Court of the United States went a step further and held that the Sixth Amendment guarantee of a jury trial made applicable to the states by Duncan, supra, does not require that the jury's vote be unanimous. Of particular note, the Supreme Court of the United States opined as follows:
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