Florida Rules of Criminal Procedure., In re

Decision Date06 December 1972
Docket NumberNo. 42218-B,42218-B
Citation272 So.2d 65
PartiesIn re FLORIDA RULES OF CRIMINAL PROCEDURE.
CourtFlorida Supreme Court

PER CURIAM.

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 All conflicting rules and statutes are hereby superseded; statutes not superseded shall remain in effect as rules promulgated by the Supreme Court.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.

CARLTON, BOYD, McCAIN and DEKLE, JJ., concur.

ADKINS, J., concurs specially with opinion.

DEKLE, J., concurs with ADKINS, J.

ROBERTS, C.J., concurs in part and dissents in part with opinion.

McCAIN and DEKLE, JJ., concur with ROBERTS, C.J.

ERVIN, J., dissents in part and concurs in part with opinion.

ADKINS, Justice (concurring):

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:

"As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. See State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966)." (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.

DEKLE, J., concurs.

ROBERTS, Chief Justice.

I agree with that part of the opinion which defines the difference between "practice and procedure" and substantive law.

ROBERTS, Chief Justice (concurring in part and dissenting in part).

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:

"When the jurors have agreed upon a verdict they shall be conducted into the courtroom by the officer having them in charge. The court shall ask the foreman if an agreement has been reached on a verdict. If the foreman answers in the affirmative, the judge shall call upon him to deliver the verdict in writing to the clerk. The court may then examine the verdict and correct it as to matters of form with the unanimous consent of the jurors. The clerk shall then read the verdict to the jurors and unless disagreement is expressed by one or more of them or the jury be polled, the verdict shall be entered of record, and the jurors discharged from the cause. No verdict may be rendered unless all of the trial jurors concur in it." 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 "Our inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, 399 U.S. 78, at 99-100, 90 S.Ct. 1893, at 1905, 26 L.Ed.2d 446. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a 'safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' Duncan v. Louisiana, supra, 391 U.S. at 156, 88 S.Ct. 1444, at 1451. 'Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen....' Williams v. Florida, supra, at 100, 90 S.Ct. 1893, at 1906. 1 A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served.

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:

"Petitioners nevertheless argue that unanimity serves other purposes constitutionally essential to the continued operation of the jury system. Their principal contention is that a Sixth Amendment 'jury trial' made mandatory on the States by virtue of the Due Process Clause of the Fourteenth Amendment, Duncan v. Louisiana, supra, should be held to require a unanimous jury verdict in order to give substance to the reasonable doubt standard otherwise mandated by the Due Process Clause. See In re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

"We are quite sure, however, that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable doubt standard developed separately from both the jury trial and the unanimous verdict. As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted. See id., at 361, 90 S.Ct. at 1070. And in that case, which held such a burden of proof to be constitutionally required, the Court purported to draw no support from the Sixth Amendment.

"Petitioners' argument that the Sixth Amendment requires jury unanimity in order to give effect to the reasonable doubt standard thus founders on the fact that the Sixth Amendment does not require proof...

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