The Florida Bar Re Amendment to Rules of Criminal Procedure (Rule 3.850), 65277

• Decision Date: 30 November 1984
• Docket Number: No. 65277,65277
• Citation: 10 Fla. L. Weekly 22,460 So.2d 907
• Parties: 10 Fla. L. Weekly 22, 10 Fla. L. Weekly 66 THE FLORIDA BAR re AMENDMENT TO RULES OF CRIMINAL PROCEDURE (RULE 3.850).
• Court: Florida Supreme Court

Page 907

460 So.2d 907

10 Fla. L. Weekly 22, 10 Fla. L. Weekly 66

THE FLORIDA BAR re AMENDMENT TO RULES OF CRIMINAL PROCEDURE (RULE 3.850).

No. 65277.

Supreme Court of Florida.

Nov. 30, 1984.

Randall B. McDonald, Chairman, Bartow, for Criminal Procedure Rules Committee, petitioner.

Raymond L. Marky, Asst. Atty. Gen., Tallahassee, on behalf of the Attorney General of the State of Florida, interested party.

PER CURIAM.

We have for consideration an amendment to Rule of Criminal Procedure 3.850. The Florida Bar opposes the amendment.

Appended to this opinion is the amended and new Rule of Criminal Procedure 3.850. Deletions are indicated by the use of struck-through type. New text is indicated by underscoring. All rules and statutes in conflict with this rule are hereby superseded as of the effective date of the rule. The 1984 Committee Note is not adopted by the Court. This rule shall become effective January 1, 1985, at 12:01 A.M. The two year time limitation begins to run when the judgment and sentence become final.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

RULE 3.850--MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE; HEARING; APPEAL.

A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released upon the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack, may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.

A motion to vacate a sentence which exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than two years after the judgment and sentence become final unless it alleges (1) the facts upon which the claim is predicated were unknown to the movant or his attorney and could not have been ascertained by the exercise of due diligence, or, (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

Anyone adjudicated guilty prior to January 1, 1985, shall have until January 1, 1986, to file a motion in accordance with this rule.

The motion shall be under oath and include the following information:

(a) The judgment or sentence under attack and the court which rendered same;

(b) Whether there was an appeal from the judgment or sentence and the disposition thereof;

(c) Whether a previous post-conviction motion has been filed, and if so, how many;

(d) If a previous motion or motions have been filed the reason or reasons why the claim or claims in the present motion were not raised in the former motion or motions.

(e) The nature of the relief sought:

(f) A brief statement of the facts (and other conditions) relied upon in support of the motion.

This rule does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

upon filing of a rule 3.850 motion, the clerk shall forward the motion and file to the court.

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to...