The Flordia Bar, 49355

• Decision Date: 10 February 1977
• Docket Number: No. 49355,49355
• Citation: 343 So.2d 1247
• Parties: THE FLORIDA BAR. Re FLORIDA RULES OF CRIMINAL PROCEDURE.
• Court: Florida Supreme Court

Page 1247

343 So.2d 1247

THE FLORIDA BAR.

Re FLORIDA RULES OF CRIMINAL PROCEDURE.

No. 49355.

Supreme Court of Florida.

Feb. 10, 1977.

As Amended March 3, 1977 (No. 49355A).

Rehearing Denied April 6, 1977.

Edward J. Atkins, Miami, President and Marshall R. Cassedy, Tallahassee, Executive Director, for The Florida Bar, and Benjamin M. Tench, Gainesville, Chairman for Criminal Procedure Rules Committee, petitioner.

Bruce M. Lyons of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for the Academy of Florida Trial Lawyers.

Peter L. Nimkoff of August, Nimkoff & Pohlig, Miami, for the Dade County Bar Ass'n.

Thomas J. Morgan and Gerald Kogan, Miami, for the Florida Criminal Defense Attorneys Ass'n.

Arthur I. Jacobs, Fernandina Beach, for the Florida Prosecuting Attorneys Ass'n.

Phillip A. Hubbart, as Public Defender, Miami, for Eleventh Judicial Circuit of Florida.

James G. Mahorner, Tallahassee, for Dept. of Health and Rehabilitative Services.

PER CURIAM.

The following amendments or additions to the Florida Rules of Criminal Procedure are hereby adopted and shall govern all proceedings within their scope after 12:01 a.m., July 1, 1977. These rules shall supersede all conflicting rules and statutes. The committee notes appended to each rule are not adopted by the Court.

It is so ordered.

OVERTON, C.J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

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, 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 officer shall deliver one copy of the notice to appear to the arrested person and such person, in order to secure release, shall give his written promise to appear in court by signing the three remaining copies: one to be retained by the officer and two to be filed with the clerk of court. These two copies shall be sworn to by the arresting officer before a Notary Public or a Deputy Clerk. If notice to appear is issued pursuant to subsection (b), the notice shall be issued immediately upon arrest. If notice to appear is issued pursuant to subsection (c), the notice shall be issued immediately upon completion of the investigation. The arresting officer, or other duly authorized official, shall then release the person arrested from custody.

(e) With the sworn Notice to Appear the arresting officer shall file with the clerk a list of witnesses and their addresses, and a list of tangible evidence in the cause. One copy shall be retained by the officer and two copies shall be filed with the clerk of court.

(f) Copy to State Attorney. The clerk shall deliver one copy of the notice to appear and schedule of witnesses and evidence filed therewith to the State Attorney.

(g) Contents. If notice to appear is issued it shall contain the following information:

(1) Name and address of the accused;

(2) Date of offense;

(3) Offense(s) charged--by statute and municipal ordinance if applicable;

(4) Counts of each offense;

(5) Time and place where the accused is to appear in court;

(6) Name and address of the trial court having jurisdiction to try the offense(s) charged;

(7) Name of the arresting officer;

(8) Any other person(s) charged at the same time; and

(9) Signature of the accused.

(h) Failure to appear. When a person signs a written notice to appear and fails to respond to the notice to appear, a warrant of arrest shall be issued pursuant to Rule 3.121.

(i) Traffic Violations Excluded. Nothing contained herein shall prevent the operation of a traffic violations bureau, the issuance of citations for traffic violations or any procedure pursuant to Chapter 316, Florida Statutes (1975).

(j) Rules and Regulations. Rules and regulations of procedure governing the exercise of authority to issue notices to appear shall be established by the chief judge of the circuit.

(k) Discovery by Defendant. Upon demand of the defendant or his counsel the clerk shall furnish to defendant a copy of that Schedule of Witnesses and Exhibits filed with the Notice to Appear.

Defendant's right to further discovery in prosecutions by Notice to Appear shall be limited to names and addresses of witnesses and tangible evidence in possession or control of the prosecutor which are not contained in that schedule.

(l) Procedure by Court. Upon the appearance of the accused before the court pursuant to the requirements of the Notice to Appear, the Court shall advise the defendant as set forth in Rule 3.130(b), and the provisions of said rule shall apply.

The accused at such appearance may at his election waive his right to counsel and trial and enter his plea of guilty or nolo contendere by executing the waiver form contained on the Notice to Appear, and the Court may thereupon enter judgment and sentence in the cause.

In the event the defendant enters a plea of not guilty, the court may set the cause for jury or non-jury trial upon the Notice to Upon the setting of a trial date by the Court, the Clerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the Notice to Appear, and to the witnesses whose names and addresses appear on the list filed by him, requiring their attendance at trial.

Appear pursuant to the provisions of Rule 3.160 and Rule 3.140, as amended.

(m) Form of Notice to Appear and Schedule of Witnesses and Evidence. The Notice to Appear and Schedule of Witnesses and Evidence shall be in substantially the following form:

IN THE COUNTY COURT, IN AND FOR ___________ COUNTY, FLORIDA

NOTICE TO APPEAR

_____________________

Agency Case #

STATE OF FLORIDA, COUNTY OF ___________

In the name of ___________ County, Florida: The undersigned certifies that he has just and reasonable grounds to believe, and does believe that:

( ) A.M.

On the _____ day of ____________________, 19____, at _______________( ) P.M.

_________________ _______________ __________ ___________________________

Last Name First M.I. Aliases

________________________________________________ ____________________________

Street-City and State Date and Place of Birth

____________ ___________ _________ ________ __________ ________ __________________

Phone Race/Sex Height Weight Hair Eyes Scars/Marks

_______________________ _________________________________________________________ __________________

Occupation Place of Employment Employment Phone

____________________ ______________________________ __________________________

Complexion Driver's License # Yr./St. Social Security #

at (location) _____________________________________________________________________

in ___________ County, Florida, committed the following offense(s):

(1)_____________________________________ (2)______________________________________

( ) State Statute

in violation of section (s):_____________; __________________( ) Municipal Ord.

DID (Narrative): ______

____________________________________ ______________ ______________________________

Name of Officer ID# Agency

[ ] Mandatory appearance in court, ________________________________________________

Location

________________________________ 19_____, at _________________( ) A.M. ( ) P.M.

Month Day

[ ] You need not appear in court, but must comply with instructions on back.

CO-DEFENDANTS:

[ ] Cited

1. ________________________________________________________________ [ ] Jailed

Name DOB Address

[ ] Cited

2. ________________________________________________________________ [ ] Jailed

Name DOB Address

I AGREE TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE TO ANSWER THE OFFENSE CHARGED OR TO PAY THE FINE SUBSCRIBED. I UNDERSTAND THAT SHOULD I WILLFULLY FAIL TO APPEAR BEFORE THE COURT AS REQUIRED BY THIS NOTICE TO APPEAR, THAT I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST SHALL BE ISSUED.

___________________________________

Signature of Defendant

Sworn to and subscribed before me I swear the above and reverse and

this _____ day of ______________, attached statements are true and

19_____. correct to the best of my knowledge

and...