In re Amendments to the Florida Rules of Criminal Procedure

Full title: IN RE AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE

Court: Supreme Court of Florida

Date published: Sep 24, 1992

606 So. 2d 227 (Fla. 1992)

Opinion

No. 79615.

September 24, 1992.

Original Proceeding — Florida Rules of Criminal Procedure.

Benjamin H. Hill, III, President, Tampa, Alan T. Dimond, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar, and Manuel Menendez, Jr., Chairman, Criminal Procedure Rules Committee, Tampa, for petitioner.

PER CURIAM.

The Florida Rules of Criminal Procedure Committee petitions this Court to approve its quadrennial report of proposed changes to the Florida Rules of Criminal Procedure. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution.

In its report, the rules committee proposes amendment to rules 3.010, 3.111, 3.125, 3.160, 3.190, 3.191, 3.200, 3.210, 3.211, 3.212, 3.213, 3.215, 3.216, 3.217, 3.219, 3.220, 3.390, 3.692 and form 3.989. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed amendments were submitted to The Board of Governors of The Florida Bar. The Board of Governors unanimously recommended approval. The proposed amendments were published for comment; however, no comments were filed.

At oral argument, it was pointed out that rule 3.692 and form 3.989, dealing with expungement, needed further amendment due to recent statutory amendments. It was also pointed out that the rules committee wished to submit amendments to rule 3.986, Forms Related to Judgment and Sentence. A supplemental petition containing the proposed amendments to rule 3.986 has since been filed. However, a supplemental petition containing the proposed amendments to rules 3.692 and 3.989 will not be filed until after October 1, 1992.

After reviewing the rules committee's report of proposed changes and the supplemental petition, and hearing oral argument on the matter, we approve the appended amendments to the Florida Rules of Criminal Procedure. The appended amendments include the following substantive changes as proposed by the rules committee as well as stylistic and editorial changes that are made to, among other things, ensure that the rules are gender neutral.

Rule 3.010, Scope, is amended to conform the wording of the rule to a prior order of this Court and provide consistency with other rules. Subdivision (e) of rule 3.111, Counsel to Indigents, is amended to specify the duties of defense counsel who wish to withdraw from representation after judgment and sentence. Rule 3.125, Notice to Appear, subdivisions (k), ( l), (m) and rule 3.220, Discovery, subdivisions (b)(1), (b)(2), (c)(1), (h)(1) are amended to provide the same discovery to all individuals charged with criminal violations, regardless of the nature of the charging document. Specifically the amendments provide the same quantity of discovery to those charged by a notice to appear.

The amendment to rule 3.212(c)(5)(ii) substitutes "shall" for "may" so as to require the trial court to order the administrator of the facility where an incompetent defendant has been committed to report to the court on the issues of competency when the court has reasonable grounds to believe the defendant may have regained competency to proceed or no longer meets the criteria for commitment. Subdivision (g) of rule 3.350, Peremptory Challenges, is amended to clarify that it is within a trial court's discretion to allow additional peremptory challenges. Subdivision (d) of rule 3.390, Jury Instructions, is amended to clarify its provisions. Rule 3.986, Forms Related to Judgment and Sentence, is amended to conform with various provisions of Florida Statutes. The Form for Judgment is amended to add a signature line required by section 921.241, Florida Statutes (1991). The Form for Charges, Costs, and Fees is amended to increase the amount to be paid into the Crimes Compensation Trust Fund as required by chapter 92-107, Laws of Florida. The Form for Sentencing is amended to add a checkoff paragraph imposing mandatory minimum sentence for violation of section 775.0875, Florida Statutes (1991). Rule 3.692, Petition to Seal or Expunge, and form 3.989, Petition and Order to Expunge or Seal and Affidavit, will be amended at a later date.

New language is indicated by underscoring; deletions are indicated by struckthrough type. The committee notes are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 1993 at 12:01 a.m.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

PER CURIAM.

I. SCOPE, PURPOSE , AND CONSTRUCTIONRULE 3.010 . SCOPESsincludingRrhereofincludingRrRrRrRrhereofRrmay be citedshall beknownFloridaabbreviatedmay be citedFla.Committee Note s1968 Adoption. These rules are not intended to apply tomunicipal courts, but are intended to apply to all state courtswhere "crimes" are charged.1972 Amendment.RrVvTtOoTtCcRr1992 Amendment. The rule is amended to refer to "FloridaRules of Criminal Procedure" and "Fla.R.Crim.P." rather than to"Rules of Criminal Procedure" and "R.Crim.P." Although theFlorida Bar Rules of Criminal Procedure already contains thislanguage, the West publications, Florida Rules of Court (1991)and Florida Criminal Law and Rules (1991), do not. The publishedversion of rule 3.010, In re Florida Rules of Criminal Procedure,272 So.2d 65 (Fla. 1973), and the single published amendment tothe rule, In re Amendments to the Florida Rules of CriminalProcedure, 518 So.2d 256 (Fla. 1987), also do not contain theseadditions. The Florida Bar publication, Florida Criminal Rulesand Practice, in a commentary to rule 3.010, indicates that theFlorida Supreme Court changed the citation form in an ordereffective January 1, 1977. The commentary indicates that theorder stated in pertinent part:In order to provide the clarity of citations inbriefs filed in this court and other legal writings,the following amendments to the procedural rulesadopted by this court pursuant to Article V, Section2(a), of the Florida Constitution are herebyadopted.* * *The last sentence of Rule 3.010 of the Florida Rulesof Criminal Procedure is amended as follows: "TheseRules shall be knownmay be citedas the FloridaRules of Criminal Procedure and may be citedabbreviatedasR.Crim. P.Fla.R.Crim.P."However, these changes were apparently inadvertently omittedwhen the 1987 amendments were published. The proposed 1992amendments again incorporate into the rule the language set outin the court's 1977 order.The amendments would enable clearer identification of therules and achieve consistency of style with other sets of courtrules, in particular, rule 9.800(i), Fla.R.App.P., which provides that the proper citation to the FloridaRules of Criminal Procedure is Fla.R.Crim.P.II. GENERAL PROVISIONSRULE 3.030 . SERVICE OF PLEADINGS AND PAPERSService; When Required.upa,Same; How Made.WhereWhenupupuphimselfupuphimthe partyhim athisthe party's(1),(2)histhe attorney'shisthethereof;,(3),(4)histhe person'ssome person of hisamemberfifteen15suchthatthereof.Filing.upFiling Ww ith the Court Defined.or her,hethe judgeCertificate of Service."a(has)()."suchCommittee Notes1968 Adoption.Taken from the Florida Rules of CivilProcedure.1972 Amendment.RULE 3.040 . COMPUTATION OF TIMEa,awhichthat,a,RrCommittee Note s1968 Adoption.Taken from the Florida Rules of CivilProcedure.1972 AdoptionAmendment.1988 Amendment.RrRranRrCourt Commentary1975 Amendment.Underlined portion is the only change. Theeffect is to remove the 72-hour provision of proposed rule 3.131from the Saturday, Sunday, and legal holiday exception.RULE 3.050 . ENLARGEMENT OF TIMEaas,wherewhenCommittee Note s1968 Adoption.Taken from the Florida Rules of CivilProcedure.1972 Amendment. RULE 3.070 . ADDITIONAL TIME AFTER SERVICE BY MAILupon himon the partyupon himon the partyCommittee Note s1968 Adoption.This is the same as rule 1.6(e), FloridaRules of Civil Procedure, except for the omission of subdivision(c) of the civil rules, which appears to be inapplicable tocriminal cases.1972 Amendment.RULE 3.111 . PROVIDING COUNSEL TO INDIGENTSWhen Counsel Provided.hethe person,upon hisat theCases Applicable.in the event he isifwhichthatuphistheor shetohimselfthe personhistheperson'shimselfthepersonhisthe person'shimselfthepersonhisthe person's,:(i)(A)Iipursuant tounder(1979)(ii)(B)Mm 27.52 (1979)(iii)(C)Rr 27.52(1979).Duty of Booking Officer.HeThe officer(i)(A)histhe(ii)(B)or shesaidthesaidthePpDdor shesaidthehisthePpDdJjCcupon beinginterview a defendant when,represents himselfclaims,, forthwith interview said defendant and.(i)(A)PpDdto him ;,,suchthe(ii)(B)PpDdsaidtheWaiver of Counsel.histheof a defendanthas been madeboth thehisthe accused'sthat choiceanlyly has been madewaiverwhereifhisatwo2SaidTheWithdrawal of Defense Counsel After Judgment andSentence.Withdrawal of defense counsel after judgment andsentence is governed by Florida Rule of Appellate Procedure9.140(b)(3).The attorney of record for a defendant in acriminal proceeding shall not be relieved of any duties, nor bepermitted to withdraw as counsel of record, except with approvalof the lower tribunal on good cause shown on written motion,until after:(1) the filing of:(A) a notice of appeal;(B) a statement of judicial acts to be reviewed, if atranscript will require the expenditure of public funds;(C) directions to the clerk, if necessary; and(D) a designation of that portion of the reporter's transcriptthat supports the statement of judicial acts to be reviewed, if atranscript will require expenditure of public funds; or(2) the time has expired for filing of a notice of appeal, andno such notice has been filed.Committee Note s1972 Adoption.PpDdSsCriminali.e.i.e.whenwithin whichadoptSsupthehimselfSs1980 Amendment.Rr(theaddition of (b)(5)(A)-(C))1992 Amendment.In light of State v. District Court ofAppeal of Florida, FirstDistrict, 569 So.2d 439 (Fla. 1990), inwhich the supreme court pronounced that motions seeking belateddirect appeal based on ineffective assistance of counsel shouldbe filed in the trial court pursuant to rule 3.850, the committeerecommends that rule 3.111(e) be amended to detail withspecificity defense counsel's duties to perfect an appeal priorto withdrawing after judgment and sentence. The present provisionmerely notes that such withdrawal is governed by Florida Rule ofAppellate Procedure 9.140(b)(3).RULE 3.115 . DUTIES OF STATE ATTORNEY; CRIMINAL INTAKEsThis rule shall takeeffect at 11:59 p.m., Eastern Standard Time, January 1, 1973.III. PRELIMINARY PROCEEDINGSRULE 3.120 . COMMITTING MAGISTRATEwhichthatSshimthe defendantCommittee Note s1968 Adoption.This is substantially the same as part ofsection 901.01, Florida Statutes. (The remaining part should beretained as a statute.) It differs from the statute by requiringthe complaint to be in writing and by identifying the initiatinginstrument as a "complaint," thus adopting the federalterminology which is more meaningful and modern. Some doubt wasexpressed as to whether the terms of the statute incorporated inthe rule are within the rulemaking power of the Supreme Court.1972 RevisionAmendment.RrRULE 3.121 . ARREST WARRANTIssuance.,BbSsCcSshisthesuchthehethepersonSsCcBbthehistheIiAmendment.,Committee Note s1968 Adoption.(a) This is substantially the same as section901.02, Florida Statutes, except that the rule requires a writtencomplaint. Also, the rule does not incorporate that seldom usedpart of the statute that permits the magistrate to issue anarrest warrant upon affidavits made before the prosecutingattorney.(b) This is the same as section 901.03, Florida Statutes.(c) This is the same as section 901.05, Florida Statutes,except for modernizing the language.1972 RevisionAmendment .* * * []RrRULE 3.125 . NOTICE TO APPEARDefinition.By Arresting Officer.Ttor herselfTtTthimselfthe accusedTthisthe accused'shethe accusedTtIiBy Booking Officer.andthroughhethe officerup:the following:RrFfEeCcPpPpHow and When Served.one1suchthein orderhisathree3one1two2thetwo2NnPpDdCcsubsectionsubdivisionsubsectionsubdivision,,Copy to the Clerk of the Court.NnAa,two2theCopy to State Attorney.one1SsAaContents.following informationNnDdOoCcTtwherethatNnNnname(s) ofAaSsFailure to Appear.WhenIfRrTraffic Violations Excluded.,Cc(1975)Rules and Regulations.(k)Discovery by Defendant.Upon demand of the defendantor his counsel the clerk shall furnish to defendant a copy ofthat Schedule of Witnesses and Exhibits filed with the Notice toAppear.Defendant's right to further discovery in prosecutions byNotice to Appear shall be limited to names and addresses ofwitnesses and tangible evidence in possession or control of theprosecutor which are not contained in that schedule.( l )(k)Procedure by Court.NnAaCcRrsaidthatat his electionelect tohisthehisaNnAaCcthere-uponupNnAaRrs 3.140 andand Rule 3.140, as amendedCcCcNnAa,him(m)( l )Form of Notice to Appear and Schedule ofWitnesses and Evidence.NnAaSsWwEeor she,,A.M.a.m.P.M.p.m.A.M.a.m.P.M.p.m.THAT_the,Cc.PpPpCommittee Notes1992 Amendment.The amendment deletes subdivision (k) andreletters subdivisions ( l ) and (m). The elimination ofsubdivision (k) will entitle individuals charged with criminalviolations to the same discovery, without regard to the nature ofthe charging instrument. As amended, persons charged by way of anotice to appear can obtain the same discovery as persons chargedby way of either an information or an indictment. In this regardthe committee also has proposed amendments to rule 3.220(b)(1),(b)(2), (c)(1), and (h)(1) to change the reference from"indictment or information" to "charging document."RULE 3.130 . FIRST APPEARANCEPrompt First Appearance.one1Advice to Defendant.UponAthimthedefendanthimthe defendantas followsthatThat hethe defendanthethe defendant.or her;Iihe is as yethethedefendanthe isforthwith.; andThat hethe defendanthishishisthat,reasonable meansto enablehimreasonable meansCounsel for Defendant.Appointed Counsel.WhereIfhethe defendanthethe magistratewhereifprior tobeforeRetained Counsel.WhereWhen,counsel,or hersuchthatup,,Opportunity to Confer.hisWaiver of Counsel.histhe.and if he does so, suchThehisthePretrial Release.RruleCommittee Note s1972 RevisionAmendment.RULE 3.131 . PRETRIAL RELEASERight to Pretrial Release.theHearing at First Appearance — Conditions of Release.SsRrnonmonetarynonmonetarywhichthatshall impose(i)(A)Pp(ii)(B)Ee(iii)(C)Placingplacement of(iv)(D)Placingplacement ofthehimthe defendant;(v)(E)Requiring thesaidthe.; or(vi)(F)Imposingthens,;,;,;whichthat,;,is,;,subsectionsubdivisionor herConsequences of Failure to Appear.Ss 903.26,ofthe,Ss 903.26,ofthe,whichthatSubsequent Application for Setting or Modification ofBail.,,saidtheSuchThesuchtheeither(i)(A)Iior(ii)(B)Iior(iii)(C)Hh(iv)(D)Iithree()'three()'theIn the eventIf,Bail Before Conviction; Condition of Undertaking.his,hethe personsuchthe,,himself,hea personhe has beenbeing,hethe personagainst himhethe personor she,Revocation of Bail.himthe defendantby,Arrest and Commitment by Court.in the following caseswhenWhenWhenhisthe defendant'sorWhen;.up,,or shehadifor she hadupupBail Aa fter Recommitment.whichthathimthe defendant(c)(b)Qualifications of Surety Aa fter Order ofRecommitment.,,Issuance of Capias; Bail Specified.UponOn,suchthe,saidtheSummons Uponon Misdemeanor Charge.,lSummons When Defendant iI s Corporation.UponOnCommittee Note s1968 Adoption.(a) Same as section 903.01, FloridaStatutes.(b) Same as section 903.04, Florida Statutes.(c) Same as section 903.02, Florida Statutes.(d) Same as section 903.12, Florida Statutes.(e) Substantially same as section 903.13, Florida Statutes.(f) Same as section 903.19, Florida Statutes.(g) Same as section 918.01, Florida Statutes.(h) Substantially same as section 903.23, Florida Statutes.(i) Same as section 903.24, Florida Statutes.(j) Same as section 903.25, Florida Statutes.(k) and ( l ) Formerly rule 3.150(c). These proposalscontain the essentials of present sections 907.01, 907.02, and901.09(3), Florida Statutes, a change of some of the terminologybeing warranted for purpose of clarity.(m) Formerly rule 3.150(c). This proposal contains all of theessentials of section 907.03, Florida Statutes, and that part ofsection 901.14, Florida Statutes, pertaining to postindictment orpostinformation procedure. A charge by affidavit is provided.Although subdivision (g) is the same as section 918.01,Florida Statutes, its constitutionality was questioned by thesubcommittee, constitutional right to bail and presumption ofinnocence.1972 Amendment.Same as prior rule except (b), which is new.(k), ( l ), and (m) are taken from prior rule 3.150.1977 Amendment.subparagraphsubdivisionRrpre-trialpretrialParagraph (a) was repealed by Ch. 76-138, § 2, Laws ofFlorida, insofar as it was inconsistent with the provision ofthat statute. Subparagraph (a) has been amended so as to complywith the legislative act.1983 Amendment.Rr,;,SsCourt Comment1977 Amendment.Subdivision (a) was repealed by Chapter76-138, § 2, Laws of Florida, insofar as it was inconsistent withthe provision of that statute. Subdivision (a) has been amendedso as to comply with the legislative act.RULE 3.132 . PRETRIAL DETENTIONMotion Filed at First Appearance.Ss 907.041,of the,twenty-four()SsSsAahisan,,hethe state attorneyRrRr,hethe personMotion Filed Aa fter First Appearance.SuchTheUponOnsuchthesuchtheFinal Order.Hearing Required.five (),SsAaSs 907.041,of theSsone1five ()hethe defendantten ()suchtheup,Findings and Conclusions to bB e Recorded.,twenty-four ()Dissolution of Order.Further Proceedings on Order.In the eventIfasuchtheupupLength of Detention.sub-paragraph (4)(b) of Ss 907.041(4)(b),of theninety ()histhedefendant'shisthe defendant'sRULE 3.133 . PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARYPRELIMINARY HEARINGSNonadversary Probable Cause Determination.Defendants in Custody.wherein whichaboveRrsaidthatDefendants on Pretrial Release.histheor herSsTheAshall, if hewho,shallStandard of Proof.histheupupAction on Determination.his or her own,upAdversary Preliminary Hearing.When Applicable.hisupor herhimthe defendant.Process.Witnesses.shall, ifhewho,shallorherhethe defendantor sheor herHeThedefendanthimthe defendantRecord.,thehisthedefendant'sAction on Hearing.his or her own,Additional Nonadversary Probable Cause Determinations andPreliminary Hearings.Committee Notes s1968 Adoption.(Notes are to former rule 1.122.)(a) Substantially the same as section 902.01, FloridaStatutes; the word "examination" is changed to "hearing" toconform to modern terminology.(b) through (j) Substantially the same as sections 902.02through 902.10, 902.13, and 902.14, Florida Statutes, except forexchange of "hearing" for "examination."(k) Parts of section 902.11, Florida Statutes, and all ofsection 902.12, Florida Statutes, were omitted because ofconflict with case law: Escobedo v. Illinois, 378 U.S. 478,84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); White v. Maryland, 373 U.S. 59,83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).( l ) Taken from Federal Rule of Criminal Procedure 5(c).Previously Florida had no statute or rule defining what themagistrate should do at the conclusion of the preliminaryhearing.(m) Substantially the same as section 902.18, FloridaStatutes, except "without delay" changed to "within 7 days." Somespecific time limit was felt necessary because of frequent delayby magistrates while defendants remain in jail.1972 RevisionAmendment.CcSsfor thesectionssubdivisions,RrRrRrRr,to providesubparagraphsubdivisionk(2)11977 Amendment.sectionsubdivisionrfhim1983 Amendment.Rule 3.131(d) is intended to replace formerRule 3.130(f), and therefore contemplates all subsequentmodifications of bail; including all increases or reductions ofmonetary bail, or any other changes sought by the State or by thedefendant.Court Comment1975 Amendment.This is a complete rewrite of thepreliminary hearing rule.RULE 3.140 . INDICTMENTS; INFORMATIONSMethods of Prosecution.Capital Crimes.whichthatOther Crimes.,NnAaRr,suchthehisthe judge's,sameitNature of Indictment or Information.up,Caption, Commencement, Date, and Personal Statistics.Caption.upCc,Commencement.upDate.Personal Statistics.or information.The Charge.Allegation of Facts; Citation of Law Violated.up,whichthathisthe defendant'sName of Accused.hethe personhethe person,hethe accused,Time and Place.uptwo2Allegation of Intent to Defraud.WhenIfIncorporation by Reference.one1Endorsement and Signature; Indictment.manpersonmanpersonorsheSignature, Oath, and Certification; Information.or heror sheorherConclusion.Surplusage.upAmendment of Information.upwhichthatForm of Certain Allegations.Description of Written Instruments.Words; Pictures.Judgments; Determinations; Proceedings.,suchthe,suchtheExceptions; Excuses; Provisos.,Alternative or Disjunctive Allegations.whichthatone1one1one1two or more,Offenses Divided into Degrees.Felonies.lCustody of Indictment or Information.,,one1Defendant's Right to Copy of Indictment ,orInformation.uptwenty-four24he isbeingsuchtheto him.suchaor sheStatement of Particulars.up,uphimthedefendanthisaSuchTheoDefects and Variances.,or herhisahimtheaccusedCommittee Note s1968 Adoption.Introductory Statement: The contention may bemade that the authority of the Supreme Court of Florida to governpractice and procedure in all courts by court rule does notinclude the power to vary in any way from present statutory lawgoverning the work product of the grand jury, viz., theindictment. Such a contention must, of necessity, be based inpart, at least, upon the assumption that the grand jury is not anintegral part of the judicial system of Florida but is a distinctentity which serves that system. The Supreme Court of Florida,in State v. Clemons, 150 So.2d 231 (Fla. 1963), seems to havetaken a position contrary to such an assumption.Regardless of whether such a contention is valid, it seemsbeyond controversy that the essentials of the indictment, as inthe case of an information, are so intimately associated withpractice and procedure in the courts that the individual or grouphaving the responsibility of determining its makeup and use isthus empowered to govern a substantial segment of such practiceand procedure. The conclusion seems to be inescapable, therefore,that, since the constitution grants to the supreme courtauthority over this phase of the judicial scheme, the followingmaterial is appropriate for consideration as a part of theproposed rules:(a)(1) Capital Crimes. This recommendation is consistent withpresent Florida law. See § 10 DR, Fla. Const. (1885, as amended)(now Art. I, § 15, Fla. Const. (1968 as amended)); § 904.01, Fla.Stat. (1963). The terminology "which may be punished by death" isdeemed preferable to the terminology "capital crime" of theconstitution and "capital offenses" of the statute because of itsdefinitive nature. The recommended terminology is utilized inFederal Rule of Criminal Procedure 7(a) and in the American LawInstitute's Code of Criminal Procedure, section 115. Theterminology used in the 1963 Code of Criminal Procedure ofIllinois is "when death is a possible punishment." See § 110-4.Section 10, DR, Florida Constitution, provides: "No personshall be tried for a capital crime unless on presentment orindictment by a grand jury." No provision is made in therecommendation for prosecution by presentment. This omission isconsistent with the apparent legislative construction placed onthis section. Section 904.01, Florida Statutes, provides "Allcapitaloffenses shall be tried by indictment by a grand jury."Since presentments traditionally have not been used as trialaccusatorial writs in Florida, there seems little reason, at thisdate, to question that the constitution authorizes theimplementing authority, be it the legislature or the supremecourt, to use one of the specified methods of prosecution to theexclusion of the other.(a)(2) Other Crimes. In criminal courts of record and theCourt of Record of Escambia County, the constitution of Floridarequires that prosecutions be by information. (§§ 9(5) 10, Art.V). In county judges' courts having elective prosecutingattorneys, present statutory law permits prosecutions byindictment (§ 904.02) and affidavit (Ch. 937). The additionalmethod of prosecution by information is provided as a step towardattaining uniformity with other courts in the prosecution ofnoncapital offenses, at least to the extent that a prosecutordesires to use an information. This addition involvedconsideration of whether a nonelected prosecutor serving in acounty judge's court, which often is the case, has the authorityto use an information as an accusatorial writ. Since thisquestion has not been definitely resolved under present law,caution dictated the specification that the prosecuting attorneybe elected as a prerequisite to the use of an information.In all courts not hereinabove mentioned that have electiveprosecuting attorneys, trial by indictment or information isconsistent with present Florida constitutional law and most ofthe statutory law. (See § 10, DR, Fla. Const., §§ 904.01 904.02, Fla. Stat.; cf. § 932.56, where an affidavit may be usedin cases appealed from a justice of the peace court and which istried de novo in a circuit court.) In specially created courtshaving elective prosecutors and which are not otherwise providedfor in foregoing provisions of this rule, it was felt thatprosecution by indictment or information should be allowed, eventhough present statutory authority may limit prosecutions in suchcourts to the use of an information, e.g., the Court of Record ofAlachua County.In courts not having elective prosecutors, prosecution byinformation is not recommended because of the aforementioneddoubt as to the authority of a nonelected prosecutor to use aninformation as an accusatorial writ. With reference to thepresent court structure of Florida this part of the proposalapplies only to county judges' courts and justice of the peacecourts. The only variation from present procedure contemplated bythis part of the proposal is the use of an indictment as a basisfor prosecution in a justice of the peace court.Under this proposal a grand jury may indict for any criminaloffense. This recommendation is based on the premise that a grandjury's power to indict should not be limited by virtue of levelsin a state court structure. A grand jury should be considered asa guardian of the public peace against all criminal activity andshould be in a position to act directly with reference thereto.While practicalities dictate that most noncapital felonies andmisdemeanors will be tried by information or affidavit, ifappropriate, even if an indictment is permissible as analternative procedure, it is well to retain the grand jury'scheck on prosecutors in this area of otherwise practicallyunrestricted discretion.The procedure proposed for the circuit judge to follow if agrand jury returns an indictment for an offense not triable inthe circuit court applies, with appropriate variations, much ofthe procedure presently used when a grand jury returns anindictment triable in a criminal court of record. See § 32.18,Fla. Stat.(b) Nature of Indictment or Information. This provisionappears in rule 7(c) of the Rules of Criminal Procedure for theUnited States District Court (hereafter referred to as thefederal rules for purposes of brevity). It may be deemedappropriate for incorporation into the recommendations since itpreserves to the defendant expressly the right to a formalwritten accusation and at the same time permits thesimplification of the form of the accusation andthe elimination of unnecessary phraseology.(c) Caption, Commencement, and Date.(1) Caption. Section 906.02, Florida Statutes, contains theessentials of this proposal. It is well settled at common lawthat the caption is no part of the indictment and that it may beamended. The caption may be considered as serving the purpose ofconvenience by making more readily identifiable a particularaccusatorial writ. The proposal makes it possible for thisconvenience to be served if either party wishes it, yet does notprovide that the caption be a matter of substance. The essentialsof this recommendation also appear in section 149 of the AmericanLaw Institute's Code of Criminal Procedure.(2) Commencement. This proposal apparently is directlycontrary to section 906.02(1), Florida Statutes, which treats thecaption and the commencement in the same manner, i.e., thatneither is necessary to the validity of the indictment orinformation but may be present as mere matters of convenience.This legislative assumption may not be a correct one and cautiondictates that a meaningful commencement be included. Section 20,article V, of the Constitution of Florida provides that the styleof all process shall be: "'The State of Florida' and allprosecutions shall be conducted in the name and by the authorityof the State." As contemplated in the proposal, the commencementexpressly states the sovereign authority by which theaccusatorial writ is issued and the agent of that authority.Section 906.02(2), Florida Statutes, seems to contemplate thatthere will be included in the indictment an express provisionconcerning the agency of the state responsible for itspresentation, viz., the grand jury, by stating, "It isunnecessary to allege that the grand jurors were empaneled, swornor charged, or that they present the indictment upon their oathsor affirmations." The American Law Institute's commentary on thecommencement (A.L.I. Code of Criminal Procedure, p. 529 et seq.)indicates that there is much confusion between what informationshould be in the commencement as distinguished from the caption.(3) Date. Since in many cases the beginning of the prosecutionis co-existent with the issuance of the indictment orinformation, the date the writ bears may be of greatsignificance, particularly with reference to the tolling of astatute of limitations. If the date of a grand jury's vote of atrue bill or a prosecutor's making oath to an information differsfrom the date of filing of the indictment or information with theappropriate clerk, it seems the date of filing is the preferabledate for a writ to bear since until the filing transpires thereis no absolute certainty that the prosecution actually will leavethe province of the grand jury or prosecutor.(d) The Charge.(1) Allegation of Facts; Citation of Law Violated. Thisproposal is consistent with various sections of chapter 906,Florida Statutes, in that the charge is adequately alleged whenbased on the essentials of the offense; surplusage should beguarded against. The citation of the law allegedly violatedcontributes to defining the charge and conserves time inascertaining the exact nature of the charge. The 1963 IllinoisCriminal Code, section 111-3(a)(2), and Federal Rule of CriminalProcedure 7(c) contain similar provisions.(2) Name of Accused. The provision concerning the method ofstating the name of the accused is consistent with the veryelaborate section 906.08, Florida Statutes, which seemsunnecessarily long. It is deemed desirable that when a fictitiousname is used the necessity therefor should be indicated byallegation.(3) Time and Place. This provision is consistent with presentFlorida law. (See Morgan v. State, 51 Fla. 76, 40 So. 828(1906), as to "time"; see Rimes v. State, 101 Fla. 1322,133 So. 550 (1931), as to "place".) The provision is patterned aftersection 111-3(4) of the 1963 Illinois Code of CriminalProcedure.(4) Joinder of Offenses. The essence of this proposal ispresently found in section 906.25, Florida Statutes, federal rule8(a),and section 111-4(a) of the 1963 Illinois Code of CriminalProcedure.(5) Joinder of Defendants. This proposal is taken from federalrule 8(b). Its substance also appears in section 111-4(b) of theIllinois Code of Criminal Procedure. Although section 906.25,Florida Statutes, does not expressly contain this provision,there is little doubt that its broad language includes it.(6) Allegation of Intent to Defraud. The language of thisproposal presently appears in section 906.18, Florida Statutes,except for the provision concerning affidavit. Its continuationseems advisable as an aid to drawing allegations in charginginstruments, although such information if known to the prosecutormay be required to be given in a bill of particulars upon motionof the defendant. (See subdivision (n) of this rule.) At timessuch information may be unknown to the prosecutor. A part of thestatute is purposely not included in the proposal. The excludedpart states "and on the trial it shall be sufficient, and shallnot be deemed a variance, if there appear to be an intent todefraud the United States or any state, county, city, town orparish, or any body corporate, or any public officer in hisofficial capacity, or any copartnership or members thereof, orany particular person." It seems that this part of the statute isstated in terms of the law of evidence rather than practice andprocedure and should not be included in the rules, althoughapparently being a logical conclusion from the part included inthe proposal.(e) Incorporation by Reference. Although provision forincorporation by reference appears in federal rule 7(c), theprohibition of such incorporation is recommended with the thoughtthat even though repetition may be minimized by incorporation,confusion, vagueness, and misunderstanding may be fostered bysuch procedure.(f) Endorsement and Signature; Indictment. The requirementthat the indictment be endorsed "A true bill" and be signed bythe foreman or acting foreman of the grand jury presently appearsin section 905.23, Florida Statutes. There apparently is no validreason for changing this requirement since it serves the usefulpurpose of lending authenticity to the indictment as a legalproduct of the grand jury. The requirement of the foreman'ssignature also appears in federal rule 6(c), 1963, Illinois CCPsection 111-3(b), and A.L.I. Model Code of Criminal Proceduresection 125.The provision pertaining to the statement and signature of theprosecuting attorney varies from present Florida law and isoffered in alternative form. Florida statutes presently providethat an indictment shall be signed by a state attorney (§§ 27.21 27.22). Federal rule 7(c) also provides for the signature ofthe attorney for the government.No requirement presently is made in Florida necessitating anexpress explanatory statement preceding such signature.Presumably the justification for the signature appears in theFlorida statutes that require the aforementioned officers to waitupon the grand jury as advisors, as examiners of witnesses, andto draw indictments. (See §§ 905.16, 905.17, 905.19, 905.22,27.02, 27.16, 27.21, 27.22, Fla. Stat.)Vagueness remains concerning the significance of thesignature, however. Since the prosecuting attorney cannot bepresent while the grand jury is deliberating or voting (seesection 905.17, Florida Statutes) and has no voice in thedecision of whether an indictment is found (see section 905.26,Florida Statutes), a logical question arises concerning thenecessity for the prosecuting attorney's signature on theindictment. The provision for the statement is made for thepurpose of clarifying the reason for the signature.(g) Signature, Oath, and Certification; Information. Section10, DR, Florida Constitution, requires that informations be underoath of the prosecuting attorney of the court in which theinformation is filed. Article V, section 9(5), FloridaConstitution, contains the same requirement concerninginformations filed by the prosecuting attorney in a criminalcourt of record. This proposal also does not deviate from presentFlorida statutory law as found in section 906.04, FloridaStatutes. This statute has received judicial approval. (SeeChamplin v. State, 122 So.2d 412 (Fla. 2d DCA 1960).) It shouldbe noted here that the prosecutor's statement under oath isdefined as to the purpose served by the signature.(h) Conclusion. A similar provision currently appears insection 906.03, Florida Statutes, and should be included in therules because of its tendency to minimize unnecessary statementsin accusatorial writs. Provision is added for the affidavit as anaccusatorial writ.(i) Surplusage. The first part of the proposal, providing forthe disregarding of unnecessary allegations as surplusage, issimilar to section 906.24, Florida Statutes. The part concernedwith striking such material is patterned after federal rule 7(d).The parts are properly complementary.(j) Amendment of Information. This proposal contains noprovision for an amendment of an indictment since, presumably, agrand jury may not amend an indictment which it has returned andwhich is pending, although it may return another indictment andthe first indictment may be disposed of by a nolle prosequi. (See17 Fla.Jur. Indictments and Informations, 9 (1958).) A federalindictment cannot be amended without reassembling the grand jury(see Ex parte Bain, 121 U.S. 1 (1887)); consequently thefederal rules contain no provision for the amendment of anindictment. (It may be that the Supreme Court of Florida willfeel inclined to include in the rules an express statementconcerning amendments of an indictment. None is included here,however.)The proposal is patterned after section 111-5 of the 1963Illinois Code of Criminal Procedure, with one exception. Theexception arises due to the fact that the Illinois Code provisionapplies to indictments as well as informations, the position inIllinois apparently being assumed that an indictment may beamended, at least with reference to specified items listed in thestatute, as well as other formalities.(k) Form of Certain Allegations. Several statutes in chapter906, Florida Statutes, are concerned with the manner of makingallegations in indictments and informations. Some of thesesections are of such general application that it seems advisableto include their substance in the rules; others are so restrictedthat it may be deemed appropriate to recommend other dispositionof them.The proposals made in (1) through (7) here are based on thesubstance of the designated Florida statutes:Proposal (1): section 906.09.Proposal (2): section 906.10.Proposal (3): section 906.11.Proposal (4): section 906.12.Proposal (5): section 906.13.Proposal (6): section 906.23.Proposal (7): section 906.17.( l ) Custody and Inspection. The proposal is taken verbatimfrom section 906.27, Florida Statutes. The necessity for specificprovision for the custody and inspection of accusatorial writsseems to be proper to include here.(m) Defendant's Right to Copy of Indictment or Information.The procedure contained in this proposal is presently requiredunder section 906.28, Florida Statutes, and seems to beunobjectionable.(n) Statement of Particulars. The phrase, "bill ofparticulars," has been modernized by changing "bill" to"statement." Historically, a "bill" is a written statement. Thefirst sentence of this proposal is taken from section 906.27,Florida Statutes, the only change being the narrowing of thescope of the judicial discretion now granted by the statute. Thelatter part of the proposal is recommended in order to clarifythe requirements of the rule. Provision for the accusatorialaffidavit has been added.( o ) Defects and Variances. This proposal presently appearsin Florida law in the form of section 906.25, Florida Statutes.The statute has been the object of much judicial construction andit seems inadvisable to divide it into parts merely forconvenience in placing these parts under moreappropriate titles, such as "Pre-Trial Motions," "Motionfor New Trial," etc.The intimate relation the statute has with indictments andinformations justifies its inclusion here. The useful purposesserved by the court constructions dictate the use of thestatutory language without change.1972 RevisionAmendment.FloridarRCcCcCcCcRrRrCcPpNnRr1973 Amendment.RULE 3.150 . JOINDER OF OFFENSES AND DEFENDANTSJoinder of Offenses.whichthattwo2Joinder of Defendants.upwhenwhenwhenone1when,one1Committee Note s1968 Adoption.(Notes are to rule 1.140(d)(4) and (5).)(4) Joinder of Offenses. The essence of this proposal ispresently found in section 906.25, Florida Statutes, federal rule8(a), and section 111-4(a) of the 1963 Illinois Code of CriminalProcedure.(5) Joinder of Defendants. This proposal is taken from federalrule 8(b). Its substance also appears in section 111-4(b) of theIllinois Code of Criminal Procedure. While section 906.25,Florida Statutes, does not expressly contain this provision,there is little doubt that its broad language includes it.1972 Amendment.RrRrPre-TrialPretrialFfRrof ABAStandards Relating to Joinder and SeveranceSsCcSsRrRrtwo2one1two2,the RrSsRrRrRULE 3.151 . CONSOLIDATION OF RELATED OFFENSESRelated Offenses.Rrtwo2two2Consolidation of Indictments or Informations.Dismissal of Related Offenses after Trial.one1two2suchthesuchthesuchthehisthesuchthePlea.one1thesuchtheCommittee Note s1968 Adoption.This rule is almost the same as federal rule13, with provisions added for trial by affidavit.1972 RevisionAmendmentFlorida Rrsor herone1one1wherein which,CcCc1977 Amendment.RULE 3.152 . SEVERANCE OF OFFENSES AND DEFENDANTSSeverance of Offenses.two2upthereof.two2Ss.:(i)(A)upsuchthe,;(ii)(B)upsuchtheSeverance of Defendants.Ss(i)(A)upsuchtheone1(ii)(B)upsuchtheone1co-defendantcodefendantor heror herSsSsSssuchthesuchtheSsone1(i)(A)(ii)(B)suchthe(iii)(C)Failure to prove grounds for joinder of defendants.wherein whichSsCommittee Note s1968 Adoption.This subdivision rewords and adds to federalrule 14. It covers subject matter of section 918.02, FloridaStatutes.1972 Amendment.whereifRrFlorida RrsubparagraphssubparagraphsSsRrRULE 3.153 . TIMELINESS OF DEFENDANT'S MOTION; WAIVERTimeliness; Waiver.Renewal of Motion.pre-trialpretrialhethe defendanttheCommittee Note s1972 Adoption.IV. ARRAIGNMENT AND PLEASRULE 3.160 . ARRAIGNMENTNature of Arraignment.judge oruphimthe defendantuphimthe defendantSuchThehisEffect of Failure to Arraign or Irregularity ofArraignment.Plea of Guilty Aa fter Indictment or InformationFiled.hethe personsuchthehimthedefendantTime to Prepare for Trial.Defendant Not Represented by Counsel.or shehimthe personhisthe,or shehistheor hersuchtheto be represented by counsel, andfurther,. The personorshe,suchthehimthe person.or she,beissuchuporsheCommittee Note s1968 Adoption.(a) A combination of section 908.01, FloridaStatutes, and Federal Rule of Criminal Procedure 10.(b) Same as section 908.02, Florida Statutes.(c) Same as section 909.15, Florida Statutes, except provisionis made for trial by affidavit.(d) Same as section 909.20, Florida Statutes.(e) Federal rule 44 provides:"If the defendant appears in court without counsel the courtshall advise him of his right to counsel and assign counsel torepresent him at every stage of the proceeding unless he electsto proceed without counsel or is able to obtain counsel."A presently proposed amendment to such rule provides:"(a) Right to Assigned Counsel. Every defendant who is unableto obtain counsel shall be entitled to have counsel assigned torepresent him at every stage of the proceedings from his initialappearance before the commissioner or the court through appeal,unless he waives such appointment."(b) Assignment Procedure. The procedures for implementing theright set out in subdivision (a) shall be those provided by lawor by local rules of district courts of appeal."In lieu of such latter, blanket provision, it is suggestedthat the rule provide, as stated, for inquiry of the defendantand determination by the court as to the defendant's desire forand inability to obtain counsel, after being advised ofentitlement thereto. Many defendants, of course, will waivecounsel.In view of Harvey v. Mississippi, 340 F.2d 263 (5th Cir.1965), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10L.Ed.2d 193 (1963), holding that entitlement to counsel does notdepend upon whether the offense charged is a felony ormisdemeanor, it is suggested that the word "crime" be usedinstead of "felony" only in the first sentence of the proposedrule.In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d114 (1961), involving breaking and entering with intent to commitrape, the Supreme Court held the defendant was entitled tocounsel at the arraignment, if the arraignment be deemed a partof the trial, as apparently it is under Alabama law. In Exparte Jeffcoat, 109 Fla. 207, 146 So. 827 (1933), the SupremeCourt of Florida held the arraignment to be a mere formalpreliminary step to an answer or plea. However, in Sardinia v.State, 168 So.2d 674 (Fla. 1964), the court recognized theaccused's right to counsel upon arraignment. Section 909.21,Florida Statutes, provides for appointment of counsel in capitalcases.1972 Amendment.RrCc1992 Amendment.The amendment allows the judge toparticipate in the arraignment process by including the judge asone of the designated individuals who may advise the defendant ofthe pending charges. Apparently, the 1988 amendment to rule3.160(a) inadvertently eliminated the judge from the arraignmentprocedure. In re Rule 3.160(a), Florida Rules of CriminalProcedure, 528 So.2d 1179, 1180 (Fla. 1988). The prior amendmentdid include the judge. The Florida Bar Re: Amendment to Rules —Criminal Procedure, 462 So.2d 386 (Fla. 1984). While the languageof rule3.160(a) as presently set out in the Florida Bar pamphlet,Florida Rules of Criminal Procedure, is identical to thelanguage of this proposed amendment (that is, it includes thejudge in the arraignment process), the West publications, FloridaCriminal Laws and Rules (1991) and Florida Rules of Court (1991),nevertheless follow the language set out in 528 So.2d at 1180.RULE 3.170 . PLEASTypes of Plea; Court's Discretion.CcsuchthehistheRr;,Pleading to Other Charges.anceor herhis,suchtheStanding Mute or Pleading Evasively.Failure of Corporation to Appear.Plea of Not Guilty; Operation in Denial.upWithdrawal of Plea of Guilty.,upfn,suchthe,saidthe,himthedefendantPlea of Guilty to Lesser Included Offense or LesserDegree.whichthatPlea of Guilty to an Offense Divided into Degrees;Determination of the Degree.Time and Circumstances of Plea.upor sheResponsibility of Court on Pleas.the courtbyymeans,,Committee Note s1968 Adoption.(a) Patterned after the major portion ofFederal Rule of Criminal Procedure 11.(b) Same as section 909.07, Florida Statutes, except the word"made" is substituted for "pleaded."(c) Taken from a part of section 908.03, Florida Statutes.(d) Taken from a part of section 908.03, Florida Statutes.(e) Same as section 909.16, Florida Statutes, except thatprovision is added for trial by affidavit.(f) Essentially the same as section 909.13, Florida Statutes.(g) Essentially the same as section 909.09, Florida Statutes,except for the addition of the charge by affidavit.(h) Same as section 909.11, Florida Statutes, except provisionis made for a charge by affidavit.1972 Amendment.three3,sectiondivision ()himthe defendantof CriminalProcedureancethe cases ofBoykin v. Alabama,395 U.S. 238,, 395 U.S. 238(1969)Garcia v. State,Fla., 228 So.2d 300(Fla. 1969)or herRrRule 11 ofFfRrs of Criminal Procedure111973 Amendment.RULE 3.171 . PLEA DISCUSSIONS AND AGREEMENTSIn General.andor herself,whichthatSuchTheor herself,suchhimthe defendantResponsibilities of the Prosecuting Attorney.(i)(A)Ee,(A)(i)Aa(B)(ii)Mmup(C)(iii)Aa.; and(ii)(B)Cc,(i)(A)Aahimthe attorney(ii)(B)Mmor herself,suchtheaResponsibilities of Defense Counsel.histhe(i)(A)Aa(ii)(B)Aaand,whichthathimthe defendant.Responsibilities of the Trial Judge.or herhethe judgeofor herCommittee Notes1972 RevisionAmendment.;,,himthe defendantPpGg1977 Amendment.WhereWhenaFederalof Criminal ProcedureFederal RulebetterbetterpresentencepresentenceparagraphsubdivisionRr,RrRrRrRULE 3.172 . ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEAVoluntariness; Factual Basis.,satisfyhimselfbe satisfiedOpen Court.wherewhenDetermination of Voluntariness.wherewhenRror shethe following(i)(1)Ttand(ii)(2)Iihethe defendantor heror herand(iii)(3)Tthethe defendanthethe defendantorheror her,.or herself;(iv)(4)Tthethe defendanttheor shehisthehehisthe.;(v)(5)Tthethe defendantor sheand(vi)(6)Tthethe defendanthimthe defendantor shehethe defendanthistheor herand(vii)(7)Tt.; and(viii)(8)TtNaturalization andandNaturalizationAcknowledgment by Defendant.hethe judge(orher,(or sheor heror herProceedings of Record.Withdrawal of Plea Offer or Negotiation.,RrWithdrawal of Plea When Judge Does Not Concur.ShouldIfdoesEvidence.RrPrejudice.RrCommittee Note s1977 Adoption.theSsCcWilliams v. State, 316 So.2d 267theCcRrof Criminal Procedure,NorthCarolina v. Alford,91 S.Ct. 160, 400 U.S. 2591 S.Ct. 160,(1970)(c)RrCcPpCc,.State v.Gibson, 68 N.J. 499, 348 A.2d 769 (1975);EeRr 291 F. Supp. 383(E.D.N.Y. 1968) 427 F.2d 3282d Cir.State v. Gibson, 68 N.J. 499,348 A.2d 769 (1975); 36 N.Y.2d 829 370 N.Y.S.2d 904 331 N.E.2d 684N.Y.Ct.App.,federalRr3eof theFederal Rules of Criminal ProcedureRULE 3.180 . PRESENCE OF DEFENDANTPresence of Defendant.AaWwRrAapre-trialpretrial;,theDdAaAaWwAaAaandAaDefendant Absenting HimsS elf.shallsaidtheshall havehassor herselfor hersaidtheDefendant May Be Tried in Absentia for Misdemeanors.Presence of Corporation.Committee Note s1968 Adoption.(a) The suggested rule is in great part arecopying of section 914.01, Florida Statutes:In (3) the words "at the beginning of the trial" arerecommended for inclusion to avoid questions arising as to thenecessity for the defendant's presence at times other than upontrial, such as when the jury venire is ordered, etc.Subdivision (a)(8) is not in the present statute. However, itis deemed advisable to include it, as the several sections ofchapter 921, Florida Statutes, particularly section 921.07,appear to impliedly or expressly require the defendant's presenceat such times.(b) The statute and the suggested rule make no distinctionbetween capital and other cases. In all probability, however,were a person on trial for a capital case to escape during trial,a mistrial should be ordered if such person were not capturedwithin a reasonable time.(c) It is suggested that this language be used rather than theall-inclusive general language of the present statute as tomisdemeanor cases.(d) This provision does not appear in section 914.01, FloridaStatutes, but it is a part of Federal Rule of Criminal Procedure43. It is deemed useful to include it.1972 Amendment.RrRrsectionssubdivisionsV. PRE-TRIALPRETRIAL MOTIONS AND DEFENSESRULE 3.190 .PRE-TRIALPRETRIAL MOTIONSPre-Trial Motions iI n General.pre-trialpretrialsuchs attorney before the timethe original is filedsuchMotion to Dismiss .; Grounds.,Time for Moving to Dismiss.himupawhichthathethedefendant; or.hethedefendant; or.hethedefendant; or.Traverse or Demurrer.SswhichthatSssuchtheparagraphsubdivisionSswhichthatSuchTheEffect of Sustaining a Motion to Dismiss.,hethe defendant,hethe defendanthisthe,Order Dismissing.Ss 924.07 Motion for Continuance.Definition.Cause.SsupTime for Filing.unlessCertificate of Good Faith.Affidavits.histheMotion to Suppress Evidence in Unlawful Search.Grounds.1.(A)Tt, or;2.(B)Tt, or;3.(C)Tt, or;4.(D)Tt,;5.(E)TtContents of Motion.,Hearing.histhedefendant's,SsTime for Filing.Motion to Suppress a Confession or Admissions IllegallyObtained.Grounds.UponOnupTime for Filing.Hearing.Motion to Take Deposition to Perpetuate Testimony.upSshisthewitness's,histhe,ten10SsSshimthe reporter,Sshisthe defendant'shimthe defendanthistheSsSshisSsSs,,totheitshall appear todetermineshas absented himself byis absentbecause of,Sshisthe defendant'ssCommittee Note s1968 Adoption.(a) New; devised by committee.(b) Substantially the same as section 909.02, FloridaStatutes, except changes name of "motion to quash" to "motion todismiss." This conforms to the terminology of the Federal Rulesof Criminal Procedure. The statute authorizing the state toappeal from certain orders, section 924.07, Florida Statutes,should be amended by substituting the words "motion to dismiss"for "motion to quash."(c) Combines the substance of sections 909.01 and 909.06,Florida Statutes. Subdivision (4) affords a new remedy to anaccused. Although there is now a conclusive presumption ofprobable cause once an indictment or information is filed (seeSullivan v. State, 49 So.2d 794 (Fla. 1951)), it is felt thatthis rule is necessary. Primarily, this procedure will permit apretrial determination of the law of the case when the facts arenot in dispute. In a sense, this is somewhat similar to summaryjudgment proceedings in civil cases, but a dismissal under thisrule is not a bar to a subsequent prosecution.(d) New; based on Marks v. State, 115 Fla. 497, 155 So. 727(1934), and what is generally regarded as the better practice.Hearing provision based on federal rule 41(e).(e) Combines federal rule 12(b)(5) and section 909.05, FloridaStatutes. With reference to the maximum time that a defendantwill be held in custody or on bail pending the filing of a newindictment or information, the trial court is given discretion insetting such time as to both the indictment and information. Thisproposal differs from section 909.05, Florida Statutes, withreference to the filing of a newindictment in that the statute requires that the newindictment be found by the same grand jury or the next grandjury having the authority to inquire into the offense. If thesupreme court has the authority to deviate from this statutoryprovision by court rule, it seems that the trial court shouldbe granted the same discretion with reference to the indictmentthat it is granted concerning the information. The statute isharsh in that under its provisions a person can be in custodyor on bail for what may be an unreasonable length of timebefore a grand jury is required to return an indictment in orderthat the custody or bail be continued.(g)(1) This subdivision is almost the same as section916.02(1), Florida Statutes.(g)(2) This subdivision is almost the same as section916.02(2), Florida Statutes.(g)(3) This subdivision is almost the same as section 916.03,Florida Statutes.(g)(4) This subdivision rewords a portion of section 916.04,Florida Statutes.(g)(5) This subdivision rewords section 916.07, FloridaStatutes.(h) Same as federal rule 41(e) as to the points covered.(i) This rule is based on 38-144-11 of the Illinois Code ofCriminal Procedure and federal rule 41(e).(j) This subdivision rewords and adds to federal rule 14. Itcovers the subject matter of section 918.02, Florida Statutes.(k) This rule is almost the same as federal rule 13, withprovision added for trial by affidavit.( l ) Substantially same as section 916.06, FloridaStatutes, with these exceptions: application cannot be made untilindictment, information, or trial affidavit is filed; applicationmust be made at least 10 days before trial; oral deposition inaddition to written interrogatories is permissible.1972 RevisionAmendment1lSssectionssubdivisionsRr,SectionsSubdivisionsl1977 Amendment.SsRr 305 So.2d 833 1992 Amendment.The amendments, in addition to genderneutralizing the wording of the rule, make a minor grammaticalchange by substituting the word "upon" for "on" in severalplaces. The amendments also delete language from subdivision (a)to eliminate from the rule any reference as to when pretrialmotions are to be served on the adverse party. Because rule 3.030addresses the service of pleadings and papers, such language wasremoved to avoid confusion and reduce redundancy in the rules.RULE 3.191 . SPEEDY TRIAL(1)Speedy Trial Ww ithout Demand.Rr(b)(1) and (b)(2)subdivisions (e)and (f),beis,sectionsubdivision(i)(p)belowsectionsubdivisionsuchthesectionsubdivision(a)(4)(d)suchtheSssectionsubdivision(a)(2)subdivision (b)(2)(b)Speedy Trial Uu pon Demand.Rr(b)(1)subdivisions (e)(c)(g)upDdSsTtDdSsTtDdDdwhichthatsectionsubdivisionIn the event thatIfshallhashaveDdsection (i)belowsubdivision (p)(3)(c)Commencement of Trial.(4)(d)Custody.Rr, (i)(1)whichthat(ii)(2)(b)(1)(e)Prisoners Oo utside Jurisdiction.SsSsRrup(1)sectionsubdivision(a)(2)(b)sectionsubdivisionsectionsubdivision 941.45 941.50(2)(f)Consolidation of Felony and Misdemeanor.WhereWhen(c)(g)Demand for Speedy Trial; Accused iI s Bound.Ssbythatthat hehisthethathehistheupSswhichthatwhichthator herRr(d)(1)(h)Motion for Discharge;Notice of Expiration ofTime for Speedy Trial; When Timely.motion fordischargenotice of expiration of speedy trial timemotionfor dischargenotice of expiration of speedy trial timeup(2)(i)When Time May Be Extended.Rr(i)(1), or;(ii)(2)sectionsubdivision, or;(iii)(3),;(iv)(4)pre-trialpre-trialSs(3)(j)Delay and Continuances; Effect on Motion.Rr:(i)(1)(d)(2)(i), or;(ii)(2)co-defendantcodefendant, or;(iii)(3)section (e)subdivision (k),;(iv)(4)section (c)subdivision(g)(d)(3)(ii)(2)(iii)(3)(iv)(4),,that(e)(k)Availability for Trial.(1)histhe person'stheireither'sRr(2)hisnon-availabilitynonavailabilitySsnon-availabilitynonavailability(f)( l )Exceptional Circumstances.(d)(2)subdivision (i)RrRrwherewhen,orwhichthatSs:.:,or,SsRrSsSswhichthatwhichthatco-defendantcodefendantwherewhenandSs(g)(m)Effect of Mistrial; Appeal; Order of New Trial.Sswhichthatsection (i)belowsubdivision (p)(h)(1)(n)Discharge Ff rom Crime; Effect.Rrupwhichthat(h)(2)( o )Nolle Prosequi; Effect.RrSs,(i)(p)Remedy for Failure to Try Defendant Ww ithinthe Specified Time.Rrshall havehassection (d)(3)subdivision (j)motion for dischargenotice ofexpiration of speedy trial time.motion for dischargenotice of expiration of speedy trialtimemotionnotice,section (d)(3)subdivision (j)If theAis-on motion of the defendantor the court,the defendantCommittee Note s1972 RevisionAmendment1977 Amendment.Ss,1980 Amendment.WwsectionsubdivisionUuSssectionsubdivisionOo 941.45 941.50sectionsubdivisionsectionsubdivision-upbB"" ","""sectionsubdivisionsectionsubdivision,hethecourt,two2MmOoNnTtAaSs1984 Amendment.sectionsubdivisionDdSsTtsectionsubdivisionsectionsubdivisionsectionsubdivision-1992 Amendment.The purpose of the amendments is to genderneutralize the wording of the rule. In addition, the committeerecommends the rule be amended to differentiate between 2separate and distinct pleadings now referred to as "motion fordischarge." The initial "motion for discharge" has been renamed"notice of expiration of speedy trial time."RULE 3.200 . NOTICE OF ALIBIUpoOsuchthe,,histen10upsuchthehisansuchanthehisthe defendant'shethe defendantsuchthefive5suchanyupSswhichwhosuchthesuchthedefendant's ownofthe defendant himselfsuchthesuchthethehisthe defendant'ssuchtheSssuchsuchthesuchtheCommittee Note s1968 Adoption.The rule is completely new in Florida.Fourteen states have adopted notice of alibi statutes or rules:Arizona Supreme Court Rules of Criminal Procedure 192 (enacted in1940); Ind. Ann. Stat. 9-1631, 9-1632, 9-1633 (1956) (enacted in1935); Iowa Code Ann. 777 18 (1958) (enacted in 1941);Kan. Gen. Stat. Ann. 62-1341 (1949) (enacted in 1935); Mich. Stat.Ann. 630.14 (1947) (enacted in 1935); N.J. Superior and CountyCourt Criminal Practice Rule 3:5-9 (1948) (enacted in 1934); N YCode of Crim.Proc. 295-L (1935) (enacted in 1935); Ohio Rev. CodeAnn. 2945.58 (1953) (enacted in 1929); Okla. Stat. Ann. 22-585(1937) (enacted in 1935); S.D. Code 34.2801 (1939) (enacted in1935); Utah Code Ann. 77-22-17 (1953) (enacted in 1935); Vt.Stat. Ann. 13-6561, 6562 (1958) (enacted in 1935); Wis. Stat.Ann. 955.07 (1958) (enacted in 1935).The rule is modeled after the Ohio, New York, and New Jerseystatutes:(1) The requirement of notice in writing is taken from theOhio statute.(2) The requirement of an initial demand by the prosecutingattorney is based on the New York and New Jersey statutes.(3) The requirement of a mutual exchange of witness lists isbased on those statutes which require the defendant to disclosealibi witnesses. In the interest of mutuality, the requirement ofa reciprocal exchange of witness lists has been added. Theenforcement provision is based on the Ohio and New York statutes.In New York, a defendant who fails to give advance notice ofalibi may still give alibi testimony himself. People v. Rakiec,23 N.Y.S.2d 607, aff'd 45 N.E.2d 812 (1942).For an excellent article on notice of alibi statutes, courtdecisions thereunder, and some empirical data on the practicaleffect of the rules, see David M. Epstein, "Advance Notice ofAlibi," 55 J.Crim. Law Criminology 29 (1964).1972 Amendment.1992 Amendment.The purpose of the amendments is to genderneutralize the wording of the rule.RULE 3.210 . INCOMPETENCE TO PROCEED: PROCEDURE FOR RAISING THEISSUEProceedings Barred during Incompetency.he ispre-trialpretrial,,,,,,,,whichthatMotion for Examination.upSsthree3two2saidtheSssuchthewhichthatsuchthesuchtheSs,whichthatsuchthewhichthatSssuchtheprovided for herein,histhe defendant'ssubsectionsubdivision(i)(A)Iiwhichthat(ii)(B)Ss(iii)(C)SsCommittee Note s1968 Adoption.(a) Same as section 917.01, Florida Statutes,except it was felt that court cannot by rule direct institutionofficials. Thus words, "he shall report this fact to the courtwhich conducted the hearing. If the officer so reports" andconcluding sentence, "No defendant committed by a court to aninstitution, by reason of the examination referred to in thisparagraph, shall be released therefrom, without the consent ofthe court committing him," should be omitted from the rule butretained by statute.(b) Same as section 909.17, Florida Statutes.(c) Same as section 917.02, Florida Statutes.1972 Amendment.Subdivision (a)(3) refers to Jackson v.Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972);also, United States v. Curry, 410 F.2d 1372 (4th Cir. 1969).Subdivision (d) is added to give the court authority to confinean insane person who is likely to cause harm to others even ifthe person is otherwise entitled to bail. The amendment does notapply unless the defendant contends that he or she is insane atthe time of trial or at the time the offense was committed. Thepurpose of the amendment is to prevent admittedly insane personsfrom being at large when there is a likelihood they may injurethemselves or others.1977 Amendment.This language is taken, almost verbatim,from existing rule 3.210(a). The word "insane" is changed toreflect the new terminology, "competence to stand trial." Thedefinition of competence to stand trial is taken verbatim fromthe United States Supreme Court formulation of the test in Duskyv. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824(1960).(a)(2) The first part of this paragraph is taken, almostverbatim, from the existing rule. The right of counsel for thestate to move for such examination has been added.(b)(1) In order to confine the defendant as incompetent tostand trial, the defendant must be confined under the samestandards as those used for civil commitment. These criteria wereset forth in the recent U.S. Supreme Court case of Jackson v.Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), inwhich it was held to be a denial of equal protection to subject acriminal defendant to a more lenient commitment standard thanwould be applied to one not charged with a crime. Therefore, thecriteria for involuntary civil commitment should be incorporatedas the criteria for commitment for incompetence to stand trial.In this subdivision is found the most difficult of theproblems to resolve for the rule. The head-on conflict betweenthe Department of Health and Rehabilitative Services, a part ofthe executive branch of the government, and the courts occurswhen the administrator determines that a defendant no longershould be confined, but the trial judge does not wish thedefendant released because the trial judge feels that furthercommitment is necessary. Under the civil commitment model, theadministrator has the power to release a committed patient atsuch time as the administrator feels the patient no longer meetsthe standards for commitment. Obviously, since a defendant in acriminal case is under the jurisdiction of the court, suchimmediate release is unwarranted.The time period of the initial commitment parallels that ofcivil commitment.(b)(2) treats the problem of what the court should do with adefendant who is not competent to stand trial, but who fails tomeet the criteria for commitment. If incompetent, but not in needof treatment and not dangerous, then the defendant cannot becommitted. The present rule provides for dismissal of the chargesimmediately. There appears to be no reason why someone in thissituation should not bereleased pending trial on bail, as would other defendants.The finding of "not guilty by reason of insanity," requiredunder the present rule when a defendant cannot be tried by reasonof incompetence, seems inappropriate since such a defense admitsthe commission of the fact of the crime but denies thedefendant's mental state. Since no such finding has been made(and cannot be made), the verdict entered of not guilty by reasonof insanity is not appropriate. Further, it would give adefendant, later competent, a res judicata or double jeopardydefense, the verdict being a final determination of guilt orinnocence. It would seem far more appropriate to withdraw thecharges. A defendant who regains competence within the period ofthe statute of limitations could still be tried for the offense,if such trial is warranted.One of the major problems confronting the institution in whichan incompetent person is being held is that of obtaining consentfor medical procedures and treatment, not necessarily mentaltreatment. Generally, under the statute, the patient civillycommitted is not thereby deemed incompetent to consent. At thecommitment hearing in the civil proceedings, the judge may makethe general competency determination. It is recommended that thesame process apply in the hearing on competency to stand trial,and that, if the trial judge does not find the defendantincompetent for other purposes, the defendant be legallyconsidered competent for such other purposes.1980 AdoptionAmendment.withtosectionsubdivisionRrtwo2three3Ss,,Llone1Llstate-widestatewideheshould appointshould be appointedsuchthese..pre-trialpretrialor shesuchthehisthehisthehisthe1988 Amendment:sectiondivisionbelow,sectiondivisionbelow,Rrrule 452 So.2d 533Rrsectiondivision .. .. . ..". . . ."1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.PpICcCcSs 394.467RrCcHRSthe Department of Health and Rehabilitative Services (HRS),Rror not,the Department of Health and RehabilitativeServicesHRSCcRULE 3.211 . COMPETENCE TO PROCEED: SCOPE OF EXAMINATION ANDREPORTExamination by Experts.ye,;his lawyercounselhethedefendantpendingagainst him.,the following factors and any others deemed relevant by theexperts(A)TtAahimthe defendantAawhichthathimthe defendantUuDdhis attorneycounselMmTt.; and(B) any other factors deemed relevant by the experts.Factors to Be Evaluated.(1)thefollowing factors(i)(1)Tt(ii)(2)Tt,(iii)(3)Ttand(iv)(4)TtInsanity.Written Findings of Experts.contain the followingThe report shall.;The report shall,.;The report shall,.; andThe report shallLimited Use of Competency Evidence.(1)sectionrulesuchthe,Rr(2)SswhichthatCommittee Note s1980 Adoption.Rrparagraphsubdivisionthe case of 362 U.S. 402(HRS)theiritsareiseseiswhichthat 406 U.S. 715the case of 342 So.2d 481, 394.467 393.11two2the Department of Health andRehabilitative ServicesHRSwhichthatsuchsectionsubdivisionsectionsubdivision 90.108RuleFla.R.Civ.P., Fla.R.Civ.P.925.22916.12,(Supp. 1980),[designated as Fla.St. 1980, Supp. § 916.12]1988 Amendment.rulesectionsubdivisionruleruleprovisionsubdivisionsubsectiondivision,ruleruleeleven11six6five5or heror herprovisionsubdivisionfour4sectionsdivisionsrulesectiondivision.:rule..Cc, Florida Statutes.Rrfour4sectiondivisionsand that thereportyiesincludesRr1992 Amendment.The purpose of the amendments is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment yet there wereno provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, and provide for community treatment or commitment tothe Department of Health and Rehabilitative Services when adefendant meets commitment criteria under the provisions ofChapter 916 as amended in 1985.See notes following rule 3.210for the text of this note.RULE 3.212 . COMPETENCE TO PROCEED: HEARING AND DISPOSITIONAdmissibility of Evidence.Finding of Competence.Commitment on Finding of Incompetence.,andsuch,subparagraphsubdivisionbelowthat(i)(A)That.;(ii)(B)That.;(iii)(C)That; and(iv)(D)Thatthe following(i)(A)FfRrabove wherewhen(ii)(B)Cc(iii)(C)Cc,and(iv)(D)Ccsix6,whichthatRrabove,six6whichthatRrshalls(i)(A),six6whichthatRrhecounselthe courtaSuchThewhichthatsuchthe(ii)(B)mayshallsuchthehethe defendantone1one1,,,shallsRrRelease on Finding of Incompetence.one1suchthesuchCommittee Note s1980 Adoption.RrIn the event that there should havebeenIfhave beenRrIn theevent thatIfshouldsRrthree3ruleruleorruleparagraphsubdivisionisare 394.467 393.11chaptersection 394.455 393.11histhe,or shesectionsubdivisionsectionsubdivisionthesix6hethe attorney,he, one who is 394.467925.23916.13(Supp. 1980)[designated as Fla.St. 1980, Supp. § 916.13]1988 Amendment.rulesRrsubsectionsubdivisionsubsectionsubdivisionrulessectionsubdivisionssubsection(b)under (b) hashavethesectionsubdivisionbelow.subsectionssubdivisionsSs 916.13HRSthe Department of Healthand Rehabilitative Servicessubsectionssubdivisions,Ss 916.13subsectionssubdivisions,subsectionsubdivisionCcrulessubsectionssubdivisions,subsectionsubdivisionsubsectionsubdivisionsubsectionsubdivisionsubsectionsubdivision1992 Amendment. The amendments substitute "shall" in placeof "may" in subdivision (c)(5)(B) to require the trial court toorder the administrator of the facility where an incompetentdefendant has been committed to report to the court on the issueof competency when the court has reasonable grounds to believethat the defendant may have regained competence to proceed or nolonger meets the criteria for commitment. The amendments alsogender neutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment yet there wereno provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, andprovide for community treatment or commitment to theDepartment of Health and Rehabilitative Services when a defendantmeets commitment criteria under the provisions of Chapter 916 asamended in 1985.See notes following rule 3.210 for thetext of this note.RULE 3.213 . CONTINUING INCOMPETENCY TO PROCEED, EXCEPTINCOMPETENCY TO PROCEED WITH SENTENCING: DISPOSITIONDismissal without Prejudice during ContinuingIncompetency.five5one1SsCommitment or Treatment during Continuing Incompetency.five5,one1,hethe defendantSsAasubsectionsubdivision,saidtheSsApplicability.sectionrule,RrbelowCommittee Note s1980 Adoption. 394.467five5SsAasectionsubdivision. 394.467 925.24916.14,(Supp. 1980)[designated as Fla.St. 1980, Supp. § 916.14],1988 Amendment.srule,RrrulesSsrule,Rrrule1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment yet there wereno provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, and provide for community treatment or commitment tothe Department of Health and Rehabilitative Services when adefendant meets commitment criteria under the provisions ofChapter 916 as amended in 1985.See notes following rule 3.210for the text of this note.RULE 3.214 . INCOMPETENCY TO PROCEED TO SENTENCING:DISPOSITIONRrCommittee Note1988 Amendment.ruleruleruleIntroductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments to avoid tying mentally ill or deficient defendants inthe criminal justice system to civil commitment procedures in the"Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment , yet therewere no provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, and provide for community treatment or commitment tothe Department of Health and Rehabilitative Services when adefendant meets commitment criteria under the provisions ofChapter 916 as amended in 1985.See notes following rule 3.210for the text of this note.RULE 3.215 . EFFECT OF ADJUDICATION OF INCOMPETENCY TO PROCEED:PSYCHOTROPIC MEDICATIONFormer Jeopardy.histhe defendant'sLimited Application of Incompetency Adjudication.Psychotropic Medication.histhehisthedefendant'suphethe defendanthethe defendant,upCommittee Note s1980 Adoption.925.22(b)916.12(2),[designated as Fla. St. 1980, Supp. § 916.12(b)].sectionsubdivisionSsTtRr1988 Amendment.rulerulesRr1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toP p art I of C c hapter 394, the "Florida Mental Health Act,"and substantial amendments to C c hapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromS s ection 394.467, Florida Statutes. Chapter 916 now providesfor specific commitment criteria of mentally ill or mentallyretarded criminal defendants who are either incompetent toproceed or who have been found not guilty by reason of insanityin criminal proceedings.In part, the following amendments to R r ules 3.210 to 3.219are designed to reflect the 1985 amendments to C c hapters 394and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment , yet therewere no provisions for such commitments in the rules.Some of the amendments to R r ules 3.210 to 3.219 aredesigned to provide for determinations of whether or not adefendant is mentally competent to proceed in any material stageof a criminal proceeding, and provide for community treatment orcommitment to the Department of Health and RehabilitativeServices when a defendant meets commitment criteria under theprovisions of C c hapter 916 as amended in 1985.See notesfollowing rule 3.210 for the text of this note.RULE 3.216 . INSANITY AT TIME OF OFFENSE OR PROBATION ORCOMMUNITY CONTROL VIOLATION: NOTICE AND APPOINTMENT OF EXPERTSExpert to Aid Defense Counsel.hethe defendanthecounselone1hisattorneycounselhistheSuchTheNotice of Intent to Rely on Insanity Defense.suchthatsuchtheTime for Filing Notice.up,SuchThehethe defendantsuchCourt Appointed Experts.UpoO,upSsthree3two2SsSuchTheReport of Experts to Court.,Sswhichthatthe followingAawhichthatAaAahisthe defendant'sandAaWaiver of Time to File.UpoOsuchthesaidthehethedefendantupRrEvaluating Defendant after Pretrial Release.suchthesubsectionsubdivisionpre trialpre-trialEvidence.SsbyCommittee Note s1980 Adoption.sectionsubdivisionthe Florida caseof 353 So.2d 640-hethat attorney,-heraises,heRrRrRrRrRrRr925.21912.11,(Supp. 1980) [designated as Fla.St. 1980, Supp.§ 912.11].1988 Amendment.1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment, yet there wereno provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, and provide for community treatment or commitment tothe Department of Health and Rehabilitative Services when adefendant meets commitment criteria under the provisions ofChapter 916 as amended in 1985.See notes following rule 3.210for the text of this note.RULE 3.217 . JUDGMENT OF NOT GUILTY BY REASON OF INSANITY:DISPOSITION OF DEFENDANTVerdict of Not Guilty by Reason of Insanity.by the jury or the courtisto befor the causeby reasonby thejury or the court,such causethat reason.Treatment, Commitment, or Discharge after Acquittal.for the causebyreasonthat he receive(1)thefollowing(i)(1)Ff-(ii)(2)Ccand(iii)(3)Aa,Committee Note s1980 Adoption.Rr,Rr925.28912.18,(Supp. 1980)[designated as Fla.St. 1980, Supp. § 916.18],sectionsubdivisionRrRr1988 Amendment.Cc1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toP p art I of C c hapter 394, the "Florida Mental Health Act,"and substantial amendments to C c hapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromS s ection 394.467, Florida Statutes. Chapter 916 now providesfor specific commitment criteria of mentally ill or mentallyretarded criminal defendants who are either incompetent toproceed or who have been found not guilty by reason of insanityin criminal proceedings.In part, the following amendments to R r ules 3.210 to 3.219are designed to reflect the 1985 amendments to C c hapters 394and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment , yet therewere no provisions for such commitments in the rules.Some of the amendments to R r ules 3.210 to 3.219 aredesigned to provide for determinations of whether or not adefendant is mentally competent to proceed in any material stageof a criminal proceeding, and provide for community treatment orcommitment to the Department of Health and RehabilitativeServices when a defendant meets commitment criteria under theprovisions of C c hapter 916 as amended in 1985.See notesfollowing rule 3.210 for the text of this note.RULE 3.218 . COMMITMENT OF A DEFENDANT FOUND NOT GUILTY BY REASONOF INSANITY(a)Commitment; 6-Month Report.Rrsix6six6whichthatRrabRight to Hearing if Committed upon Acquittal.suchthesuchtheone1one1bcEvidence to Determine Continuing Insanity.RruptheSstwo2three3Committee Note s1980 Adoption.six6-one1-Rr925.25912.15,(Supp. 1980)[designated as Fla.St. 1980, Supp. § 916.15]1988 Amendment.CcIntroductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toP p art I of C c hapter 394, the "Florida Mental Health Act,"and substantial amendments to C c hapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid trying mentally ill or deficientdefendants in the criminal justice system to civil commitmentprocedures in the "Baker Act." Reference to commitment of acriminal defendant found not guilty by reason of insanity hasbeen removed from S s ection 394.467, Florida Statutes. Chapter916 now provides for specific commitment criteria of mentally illor mentally retarded criminal defendants who are eitherincompetent to proceed or who have been found not guilty byreason of insanity in criminal proceedings.In part, the following amendments to R r ules 3.210 to 3.219are designed to reflect the 1985 amendments to C c hapters 394and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment , yet therewere no provisions for such commitments in the rules.Some of the amendments to R r ules 3.210 to 3.219 aredesigned to provide for determinations of whether or not adefendant is mentally competent to proceed in any material stageof a criminal proceeding, and provide for community treatment orcommitment to the Department of Health and RehabilitativeServices when a defendant meets commitment criteria under theprovisions of C c hapter 916 as amended in 1985.See notesfollowing rule 3.210 for the text of this note.RULE 3.219 . CONDITIONAL RELEASERelease Plan.hetheadministratorSsand/or,, or bothPpandIiupDefendant's Failure to Comply.Discharge.Committee Notes s1980 Adoption.sectionruleSs925.27916.17(Supp. 1980)[designated as Fla.St. 1980, Supp. § 916.17]1988 Amendment.rulesCcrequire thatpermitmaytoCcSs 916.13 1992 Amendment.The purpose of the amendment is to genderneutralize the wording of the rule.Introductory Note Relating to Amendments to Rules 3.210 to3.219.In 1985, the Florida Legislature enacted amendments toPart I of Chapter 394, the "Florida Mental Health Act," andsubstantial amendments to Chapter 916 entitled "MentallyDeficient and Mentally Ill Defendants." The effect of theamendments is to avoid tying mentally ill or deficient defendantsin the criminal justice system to civil commitment procedures inthe "Baker Act." Reference to commitment of a criminal defendantfound not guilty by reason of insanity has been removed fromSection 394.467, Florida Statutes. Chapter 916 now provides forspecific commitment criteria of mentally ill or mentally retardedcriminal defendants who are either incompetent to proceed or whohave been found not guilty by reason of insanity in criminalproceedings.In part, the following amendments to Rules 3.210 to 3.219 aredesigned to reflect the 1985 amendments to Chapters 394 and 916.Florida judges on the criminal bench are committing and HRSmental health treatment facilities are admitting and treatingthose mentally ill and mentally retarded defendants in thecriminal justice system who have been adjudged incompetent tostand trial and defendants found to be incompetent to proceedwith violation of probation and community control proceedings.Judges are also finding such defendants not guilty by reason ofinsanity and committing them to HRS for treatment yet there wereno provisions for such commitments in the rules.Some of the amendments to Rules 3.210 to 3.219 are designed toprovide for determinations of whether or not a defendant ismentally competent to proceed in any material stage of a criminalproceeding, and provide for community treatment or commitment tothe Department of Health and Rehabilitative Services when adefendant meets commitment criteria under the provisions ofChapter 916 as amended in 1985.See notes following rule 3.210for the text of this note.VI. DISCOVERYRULE 3.220 . DISCOVERYNotice of Discovery.avail himself ofparticipate inupSuchTheupsuchthehethe defendantProsecutor's Discovery Obligation.indictment orinformationcharging document,fifteen15himcounsel,,Ss(i)(A)Ttwhichthat,a.(i),;(b)(ii)the case.;(ii)(B)Ttparagraphsubdivision.saidthehim,the personsuchthesuchthose.;(iii)(C)Aa.;(iv)(D)Aa.;(v)(E)Tt.;(vi)(F)Aawhichthat.;(vii)(G)WwSswhichthat.;(viii)(H)Ww,;,.;(ix)(I)Ww.;(x)(J)Rr,.; and(xi)(K)Aawhichthatwhichthat didbelongedthatdid not belong(xii)(2)suchthesuchthosesuchthe(xiii)(3)Ss24indictment or informationcharging documentSswhichthat35himthe prosecutorDisclosure to Prosecution.indictment orinformationcharging document(i)(A)Aaline-uplineup;(ii)(B)Ss(iii)(C)Bb(iv)(D)Pp(v)(E)Tt(vi)(F)Pphisthe defendant's(vii)(G)Pphisthedefendant's,histhedefendant'swhichthat(viii)(H)Pphisthe defendant's(ix)(I)Sshisthe defendant'ssuchtheor herhis pre trialtheaccused's pretrialDefendant's Obligation.(1)the following disclosures shall be made(1)(A)seven7Section (b)(1)(i)subdivision (b)(1)(A)Rr,Rrbelow.(2)(B)himthe prosecutor,whichthatTtsectionsubdivision(A)above,.;Rr,.; andAawhichthat(2)fifteen15himthe defendanthimthe defendant;,(3)sectionsubdivisiontwo2whichthathisthe defendant'sRestricting Disclosure.RrsuchthewhichthatAdditional Discovery.UponOnMatters Not Subject to Disclosure.Work Product.,,histheirs.Informants.histhe informant'sDiscovery Depositions.Generally.indictment or informationcharging documentsuchthe,upSshethe personoror herupor her(i)(A)section (b)(1)(i)subdivision (b)(1)(A)abovesaidtheup(ii)(B)subdivision3.220(i)(A)above(iii)(C)whereinwhichonlyonlySsFlorida Statutessection 27.04, FloridaStatutes.Transcripts.(a)(A)Ss,(b)(B)upupFlorida Statutesection 939.06, FloridaStatutes,AaSs,Place of Deposition.up,the,Depositions of Sensitive Witnesses.Witness Coordinating Office/Notice of Taking Deposition.suchthatWwCcOoDefendant's Physical Presence.upup(i)(A)the courtupsuch atheany(ii)(B)histhe defendant'sTelephonic Statements.UpoOtheInvestigations Not to Be Impeded.,Continuing Duty to Disclose.which hethat the partysuchthehethe partysuchtheCourt May Alter Times.uplProtective Orders.UpoOor,suchtheIn Camera Proceedings.UpoOsuchtheSanctions.suchtheSuchThewherewhenone1or her(i)(A)(ii)(B)(iii)(C),RrupupupoCosts of Indigents.Pre-trialPretrial Conference.one1pretrialpretrialhethe accusedCommittee Note s1968 Adoption.(a)(1) This is substantially the same as section 925.05,Florida Statutes.(a)(2) This is new and allows a defendant rights which he didnot have, but must be considered in light of subdivision (c).(a)(3) This is a slight enlargement upon the present practice;however, from a practical standpoint, it is not an enlargement,but merely a codification of section 925.05, Florida Statutes,with respect to the defendant's testimony before a grand jury.(b) This is a restatement of section 925.04, Florida Statutes,except for the change of the word "may" to "shall."(c) This is new and affords discovery to the state within thetrial judge's discretion by allowing the trial judge to makediscovery under (a)(2) and (b) conditioned upon the defendantgiving the state some information if the defendant has it. Thisaffords the state some area of discovery which it did notpreviously have with respect to (b). A question was raisedconcerning the effect of (a)(2) on FBI reports and other reportswhich are submitted to a prosecutor as "confidential" but it wasagreed that the interests of justice would be better served byallowing this rule and that, after the appropriate governmentalauthorities are made aware of the fact that their reports may besubject to compulsory disclosure, no harm to the state will bedone.(d) and (e) This gives the defendant optional procedures. (d)is simply a codification of section 906.29, Florida Statutes,except for the addition of "addresses." The defendant is allowedthis procedure in any event. (e) affords the defendant theadditional practice of obtaining all of the state's witnesses, asdistinguished from merely those on whose evidence theinformation, or indictment, is based, but only if the defendantis willing to give the state a list of all defense witnesses,which must be done to take advantage of this rule. Theconfidential informant who is to be used as a witness must bedisclosed; but it was expressly viewed that this should nototherwise overrule present case law on the subject of disclosureof confidential informants, either where disclosure is requiredor not required.(f) This is new and is a compromise between the philosophythat the defendant should be allowed unlimited discoverydepositions and the philosophy that the defendant should not beallowed any discovery depositions at all. The purpose of the ruleis to afford the defendant relief from situations when witnessesrefuse to "cooperate" by making pretrial disclosures to thedefense. It was determined to be necessary that the writtensigned statement be a criterion because this is the only waywitnesses can be impeached by prior contradictory statements. Theword "cooperate" was intentionally left in the rule, although theword is a loose one, so that it can be given a liberalinterpretation, i.e., a witness may claim to be available and yetnever actually submit to an interview. Some express the view thatthe defendant is not being afforded adequate protection becausethe cooperating witness will not have been under oath, but thesubcommittee felt that the only alternative would be to makeunlimited discovery depositions available to the defendant whichwas a view not approved by a majority of the subcommittee. Eachminority is expressed by the following alternative proposals:Alternative Proposal (1): When a person is charged with anoffense, at any time after the filing of the indictment,information, or affidavit upon which the defendant is to betried, such person may take the deposition of any person bydeposition upon oral examination for the purpose of discovery.The attendances of witnesses may be compelled by the use ofsubpoenas as provided by law. The deposition of a person confinedin prison may be taken only by leave of court on such terms asthe court prescribes. The scope of examination and the manner andmethod of taking such deposition shall be as provided in theFlorida Rules of Civil Procedure and the deposition may be usedfor the purpose of contradicting or impeaching the testimony of adeponent as a witness.Alternative Proposal (2): If a defendant signs and files awritten waiver of his or her privilege against self-incriminationand submits to interrogation under oath by the prosecutingattorney, then the defendant shall be entitled to compulsoryprocess for any or all witnesses to enable the defendant tointerrogate them under oath, before trial, for discoverypurposes.A view was expressed that some limitation should be placed onthe state's rights under sections 27.04 and 32.20, FloridaStatutes, which allow the prosecutor to take all depositionsunilaterally at any time. It was agreed by all members of thesubcommittee that this right should not be curtailed until somespecific time after the filing of an indictment, information, oraffidavit, because circumstances sometimes require the filing ofthe charge and a studied marshalling of evidence thereafter.Criticism of the present practice lies in the fact that any timeup to and during the course of the trial the prosecutor cansubpoena any person to the privacy of the prosecutor's officewithout notice to the defense and there take a statement of suchperson under oath. The subcommittee was divided, however, on themethod of altering this situation and the end result was thatthis subcommittee itself should not undertake to change theexisting practice, but should make the Supreme Court aware ofthis apparent imbalance.(g) This is new and is required in order to make effective thepreceding rules.(h) This is new and, although it encompasses relief for boththe state and the defense, its primary purpose is to affordrelief in situations when witnesses may be intimidated and aprosecuting attorney's heavy docket might not allow compliancewith discovery within the time limitations set forth in therules. The words, "sufficient showing" were intentionallyincluded in order to permit the trial judge to have discretion ingranting the protective relief. It would be impossible to specifyall possible grounds which can be the basis of a protectiveorder. This verbiage also permits a possible abuse by aprosecution-minded trial judge, but the subcommittee felt thatthe appellate court would remedy any such abuse in the course ofmaking appellate decisions.(i) This is new and, although it will entail additionalexpense to counties, it was determined that it was necessary inorder to comply with the recent trend of federal decisions whichhold that due process is violated when a person who has the moneywith which to resist criminal prosecution gains an advantage overthe person who is not so endowed. Actually, there is seriousdoubt that the intent of this subdivision can be accomplished bya rule of procedure; a statute is needed. It is recognized thatsuch a statute may be unpopular with the legislature and notenacted. But, if this subdivision has not given effect there is alikelihood that a constitutional infirmity (equal protection ofthe law) will be found and either the entire rule with allsubdivisions will be held void or confusion in application willresult.(j) This provision is necessary since the prosecutor isrequired to assume many responsibilities under the varioussubdivisions under the rule. There are no prosecuting attorneys,either elected or regularly assigned, in justice of the peacecourts. County judge's courts, as distinguished from countycourts, do not have elected prosecutors. Prosecuting attorneys insuch courts are employed by county commissions and may behandicapped in meeting the requirements of the rule due to theirregularity and uncertainty of such employment. This subdivisionis inserted as a method of achieving as much uniformity aspossible in all of the courts of Florida having jurisdictions totry criminal cases.1972 RevisionAmendment.SsSsfive5SsOoHhpre-trialpretrialOoHhjudgecourtwithin hisat its,pre-trialpretrialCriminal ProcedureofCriminal ProcedureFlorida Criminal Procedure Rris 18 U.S.C. § 3500by productby-product. . .wasFlorida Criminal Procedure RrFlorida Criminal Procedure RrFlorida Criminal Procedure Rrproposalproposed rulesubsectionsubdivision.Florida Criminal Procedure RrFlorida Criminal Procedure RrCriminal Procedure RrCcFlorida Criminal Procedure RrFlorida Criminal Procedure RrFlorida Criminal Procedure RrFlorida Criminal Procedure RrFlorida Criminal Procedure Rr1977 Amendment.1980 Amendment.,1986 RevisionAmendmentComments 1989 Amendments1989 Amendment.paragraphsubdivisionreletteredreletteredparagraphsubdivisionre-numberedrenumberedhisa defensehis or herthe witness'sre-numberedrenumberedparagraphsubdivisionthataredoes not exist somenoparagraphsubdivisionparagraphsubdivision 246 So.2d 771re-numbered paragraphrenumberedsubdivisionparagraphsubdivisionreletteredreletteredparagraphsubdivisionsparagraphsubdivisionparagraphsubdivisionParagraphSubdivisionparagraphsubdivisionhimselfpersonallyrepresenting himselfnot represented.renumbered paragraphrenumberedsubdivisionhimselfparagraphsubdivisionRe-numbered paragraphRenumbered subdivisionNnDdParagraphsubdivisionparagraphsubdivisionParagraphsubdivisionparagraphsubdivisionreletteredreletteredparagraphsubdivisionreletteredreletteredRe-numbered paragraphRenumbered subdivisionparagraphsubdivisionuponwhenisparagraphsubdivisionre-numberedrenumberedparagraphsubdivisionparagraphsubdivisionchildwitness.paragraphsubdivisionWwCcOoFlorida StatutesectionFlorida Statutes.paragraphsubdivisionparagraphsubdivisionsectionsubdivision,'"asparagraphssubdivisionsparagraphsubdivisionparagraphsubdivisionsre-letteredreletteredparagraphsubdivisionreletteredreletteredparagraphsubdivisionre-letteredreletteredparagraphsubdivisionre-letteredreletteredRe-numberedRenumberedParagraphSubdivisionre-letteredreletteredoParagraphSubdivisionlre-letteredrelettered1992 Amendment.The proposed amendments change thereferences to "indictment or information" in subdivisions (b)(1),(b)(2), (c)(1), and (h)(1) to "charging document." This amendmentis proposed in conjunction with amendments to rule 3.125 toprovide that all individuals charged with a criminal violationwould be entitled to the same discovery regardless of the natureof the charging document (i.e., indictment, information, ornotice to appear).VII. DISQUALIFICATION AND SUBSTITUTION OF JUDGERULE 3.230 . DISQUALIFICATION OF JUDGEGrounds for Disqualification.Ss:; that,said; or that said, theSs;,that saidthesaidtheMotion to Be in Writing.two2upTime for Filing.Determination of Legal Sufficiency.himthe judgeor herselfRuling on Motion.shall havehasshall havehasshallhavehas,he,said,suchthe,hethe judgehethe judgesuchthat,suchthe,Committee Notes s1968 Adoption.Substantially same as section 911.01, FloridaStatutes, except requirement that affidavits of "citizens" ofcounty is omitted. The standing committee on Florida court rulesraised the question as to whether or not this rule is proceduralor substantive and directed the subcommittee to call this fact tothe attention of the Supreme Court.1972 Amendment.RULE 3.231 . SUBSTITUTION OF JUDGEor shefamiliarizedhimselfbecome familiarCommittee Notes s1972 Adoption.VIII. CHANGE OF VENUERULE 3.240 . CHANGE OF VENUEGrounds for Motion.SsContents of Motion.Aathetwo2upAaTime for Filing.Action on Motion.Defendant in Custody.hethe defendantTransmittal of Documents.Attendance by Witnesses.Multiple Defendants.(1)Action of Receiving Court.suchthatsuchthatup(2)Prosecuting Attorney's Obligation.Committee Note s1968 Adoption.(a) through (d) substantially same assections 911.02 through 911.05, Florida Statutes. Language issimplified and requirement pertaining to cases in criminal courtsof record that removal be to adjoining county is omitted. Moderncommunicationsand distribution of television and press makes old requirementsimpractical. Designation of county left to discretion of thetrial judge.(e) through (i) same as corresponding sections 911.06 through911.10, Florida Statutes.1972 Amendment.IX. THE TRIALRULE 3.250 . ACCUSED AS WITNESSat his optionchoose tohisthe accused's,suchthator herselfor heror herhisthe defendant'sCommittee Note s1968 Adoption.Same as section 918.09, Florida Statutes.1972 Amendment.tTRULE 3.260 . WAIVER OF JURY TRIALSsCommittee Note s1968 Adoption.This is the same as Federal Rule of CriminalProcedure 23(a). This changes existing law by providing forconsent of state.1972 Amendment.RULE 3.270 . NUMBER OF JURORSsix6Committee Note s1968 Adoption.Except for substituting the word "persons"for "men," the suggested rule is a transcription of section913.10, Florida Statutes. The standing committee on Florida courtrules raised the question as to whether this rule is proceduralor substantive and directed the subcommittee to call this factto the attention of the Supreme Court.1972 Amendment.RULE 3.280 . ALTERNATE JURORSSelection.,shallshallshallshall,,Responsibilities.hethe alternatejurorCommittee Note s1968 Adoption.Save for certain rewording, the suggestedrule is a transcription of section 913.10(2), Florida Statutes,except that the provisions for the challenging ofthe alternate jurors has been included more appropriatelyin the rule relating to challenges.1972 RevisionAmendment.1977 Amendment.,won'twill not,RULE 3.281 . LIST OF PROSPECTIVE JURORSof,, hesuchtheCommittee Note1972 Adoption.Fla. Stat.§section, Florida Statutes,RULE 3.290 . CHALLENGE TO PANELSsCommittee Note s1968 Adoption.This is a transcription of section 913.01,Florida Statutes.1972 Amendment.RrRULE 3.300 . VOIR DIRE EXAMINATION, OATH, AND EXCUSING OF MEMBEROath.SsExamination.theSsProspective Jurors Excused.suchthesuchthesuchthesuchtheCommittee Note s1968 Adoption.(a) Save for the inclusion of the form of oath, the suggestedrule is a transcription of a part of section 913.02(1), FloridaStatutes. The form of oath paraphrases inpertinent part the oath set out in section 913.11,Florida Statutes.(b) The suggested rule is a transcription of the remainder ofsection 913.02(1), Florida Statutes.(c) Substantially same as section 913.02(2), FloridaStatutes.1972 RevisionAmendment.1980 Amendment.RrRrRULE 3.310 . TIME FOR CHALLENGESsitachallengeCommittee Note s1968 Adoption.Save for the heading and for the inclusion ofthe phrase, "for cause or peremptorily," the suggested rule is atranscription of the provisions of section 913.04, FloridaStatutes.1972 Amendment.RULE 3.315 . EXERCISE OF CHALLENGES(a) UpoOpanelCommittee Note1980 Adoption.(c)RrRULE 3.340 . EFFECT OF SUSTAINING CHALLENGEbeissuchthebeissuchtheCommittee Note s1968 Adoption.The first sentence of the suggested ruleexcept for the inclusion of the words "for cause" is atranscription of section 913.09, Florida Statutes. The lastsentence has been added.1972 Amendment.RULE 3.350 . PEREMPTORY CHALLENGES(a) Number.a1Felonies Punishable by Death or Imprisonment forLife.;.b2All Other Felonies.;.c3Misdemeanors.;.dbCodefendants.two2Ss;.ecMultiple Counts and Multiple Charging Documents.two2two2whichthathisdSsSsfdAlternate Jurors.one1two2one1(e) Additional Challenges. The trial judge may exercisediscretion to allow additional peremptory challenges whenappropriate.Committee Note s1968 Adoption.The suggested rule is a transcription ofsection 913.08, Florida Statutes, excluding subdivision (5),which is lifted from section 913.10(2), Florida Statutes, andincluded since the several provisions relate to peremptorychallenges. The question was raised regarding multiple counts orconsolidation in their relation to the number of challenges. Itwas decided not to imply approval of multiple counts orconsolidation. The standing committee on Florida court rulesraised the question as to whether or not this rule is proceduralor substantive and directed the subcommittee to call this fact tothe attention of the supreme court.1972 RevisionAmendment.1977 Amendment.RrSsSs1992 Amendment.The amendment adds (e) that specificallysets out the trial court's discretion to allow peremptorychallenges in addition to those provided for in the rule. Thisamendment was one of several proposed by the jury managementcommittee that provided for a reduction in the number ofperemptory challenges allowed by the rule. The majority of thecriminal procedure rules committee, while recommending againstadoption of the remaining proposals of the jury managementcommittee, nevertheless felt it would be appropriate to add (e)to clarify that the trial court's discretion is not limited tothose situations set out in (c) of the rule (i.e., multiplecounts or informations or indictments consolidated for trial).X. CONDUCT OF TRIAL; JURY INSTRUCTIONSRULE 3.380 . MOTION FOR JUDGMENT OF ACQUITTALTiming.Ss,Waiver.SuchTheupRenewal.ten10,Committee Note s1968 Adoption.Substantially same as section 918.08, FloridaStatutes, except as follows:(a) The existing statutory practice of granting directedverdicts is abolished in favor of the federal practice of havingthe judge enter a judgment of acquittal.(b) The wording was changed to comply with the judgment ofacquittal theory. A majority of the committee felt that thesubstance of the existing statute was all right, but a minorityfelt that the language should be changed so that a defendantwould waive an erroneous denial of his motion for judgment ofacquittal by introducing evidence. This point was raised inWiggins v. State, 101 So.2d 833 (Fla. 1st DCA 1958), wherein thecourt said that this statute is "ineptly worded."1972 Revision Amendment.Rr1980 Amendment.Rrhisa,,RULE 3.390 . JURY INSTRUCTIONSSubject of Instructions.upwhichthatForm of Instructions.non-capitalnoncapital,,,Written Request.,upwhichthatObjections.assignraiseas errorgrounds ofonthehethe partyhethe party,histheTranscript and Review.ofsuchthe,,himthecourt reporterCommittee Note s1972 Adoption.CcFla. Statute §section 918.10 1988 Amendment.1992 Amendment:Suggested change in wording to make (d)clearer and easier to understand and also so it more closelyfollows its federal counterpart, Federal Rule of CriminalProcedure 30.RULE 3.391 . SELECTION OF FORE MANPERSON OF JURYmanpersonCommittee Note s1968 Adoption. This rule was inserted in order to clarifythe system of selecting jury foreman.1972 Amendment.RrRULE 3.410 . JURY REQUEST TO REVIEW EVIDENCE OR FOR ADDITIONALINSTRUCTIONSsuchthesuchtheSuchThesuchtheCommittee Note s1968 Adoption.Same as section 919.05, Florida Statutes.1972 Amendment.RrCcRULE 3.420 . RECALL OF JURY FOR ADDITIONAL INSTRUCTIONS,SuchTheCommittee Note s1968 Adoption.Same as section 919.06, Florida Statutes.1972 Amendment.XI. THE VERDICTRULE 3.440 . RENDITION OF VERDICT; RECEPTION AND RECORDINGmanpersonmanpersonuphimtheforeperson,beisCommittee Note s1968 Adoption.Same as section 919.09, Florida Statutes.1972 Amendment.RULE 3.450 . POLLING THE JURYUpoOSsupon;.iIbeisProvided, hHthatCommittee Note s1968 Adoption.Same as section 919.10, Florida Statutes,except elimination of polling jury after directed verdict in viewof innovation of "judgment of acquittal."1972 Amendment.RULE 3.470 . PROCEEDINGS ON SEALED VERDICTmanpersonsuchthe,, nCommittee Note s1968 Adoption of Rule 3.470.Same as section 919.12, FloridaStatutes.1968 Adoption of Rule 3.480.Same as section 919.13, FloridaStatutes.1972 Amendment.RrRrRrRULE 3.500 . VERDICT OF GUILTY WHERE MORE THAN ONE COUNThimthe defendantCommittee Note s1968 Adoption.Same as section 919.15, Florida Statutes.1972 Amendment.RULE 3.505 . INCONSISTENT VERDICTSSstheiritsCommittee Note1977 Adoption.SsSsSsRrRULE 3.510 . DETERMINATION OF ATTEMPTS AND LESSER INCLUDEDOFFENSESUpoOupsuchthesuchthe.; orwhichthatCommittee Note s1968 Adoption.Same as section 919.16, Florida Statutes. Thestanding committee on Florida court rules raised the question asto whether this rule is procedural or substantive and directedthe subcommittee to call this fact to the attention of thesupreme court.1972 Amendment.RULE 3.520 . VERDICT IN CASE OF JOINT DEFENDANTStwo2Committee Note s1968 Adoption.Same as section 919.17, Florida Statutes.1972 Amendment.RULE 3.530 . RECONSIDERATION OF AMBIGUOUS OR DEFECTIVE VERDICThimthe defendantuphimthe defendantssucha,Committee Note s1968 Adoption.Same as section 919.18, Florida Statutes.1972 Amendment.RULE 3.550 . DISPOSITION OF DEFENDANT;.iIhethe defendant,hethe defendant,Committee Note1968 Adoption.Same as section 919.20, Florida Statutes.RULE 3.560 . DISCHARGE OF JURORS,TtUpifuporAasuchtheCommittee Note s1968 Adoption.Same as section 919.21, Florida Statutes,except (4) omitted.1972 Amendment.RULE 3.570 . IRREGULARITY IN RENDITION, RECEPTION , AND RECORDINGOF VERDICTsuchtheCommittee Note s1968 Adoption.Rule 3.570 is same as section 919.22, FloridaStatutes.Section 919.23, Florida Statutes, was not included in therules. This deals with the recommendation of mercy and it wasfelt that this was not procedural but substantive and not withinthe scope of the rulemaking power of the supreme court.1972 Amendment.XII.POST-TRIALPOSTTRIALMOTIONSRULE 3.590 . TIME FOR AND METHOD OF MAKING MOTIONS;PROCEDURE; CUSTODY PENDING HEARINGTime for Filing.ten10ten10,Oral Motions.such atheupWritten Motions.SuchThe,Custody Pending Motion.suchthehisupsupwhichthathimthe defendantupCommittee Note s1968 Adoption.(a) The same as the first part of section920.02(3), Florida Statutes, except that the statutory word"further" is changed to "greater" in the rule and provision formotion in arrest of judgment is added.(b) Substantially the same as first part of section 920.02(2),Florida Statutes. The rule omits the requirement that thedefendant be sentenced immediately on the denial of a motion fornew trial (the court might wish to place the defendant onprobation or might desire to call for a presentenceinvestigation). The rule also omits the statute's requirementthat an order of denial be dictated to the court reporter,because the clerk is supposed to be taking minutes at thisstage.NOTE: The provisions of the last part of section 920.02(2),Florida Statutes, as to supersedeas and appeal are notincorporated into this rule; such provisions are not germane tomotions for new trial or arrest of judgment.(c) Substantially same as section 920.03, Florida Statutes.(d) Substantially same as last part of section 920.02(3),Florida Statutes, except that the last sentence of the rule isnew.NOTE: The provisions of section 920.02(4), Florida Statutes,relating to supersedeas on appeal and the steps that arenecessary to obtain one, are not incorporated into a rule. Theprovisions of section 920.02(4) do not belong in a group of rulesdealing with motions for new trial.1972 RevisionAmendment1980 Amendment.RrhistheRULE 3.600 . GROUNDS FOR NEW TRIALGrounds for Granting.:.hat t;.hat t;.That nNthatwhich,thatwhichuponatGrounds for Granting if Prejudice Established.:.hat thisthe defendant's;.hat t;.hat t;.That aAof the;.That t;.hat t;.hat t;.That, fFhethe defendantEvidence.suchtheCommittee Note s1968 Adoption.Same as sections 920.04 and 920.05, FloridaStatutes, except that the last paragraph of section 920.05 isomitted from the rule. The provision of the omitted paragraphthat a new trial shall be granted to a defendant who has notreceived a fair and impartial trial through no personal fault isinserted in the rule as subdivision (b)(8). The provision of theomitted paragraph of the statute which requires a new trial whenthe sentence exceeds the penalty provided by law is omitted fromthe rule because no defendant is entitled to a new trial merelybecause an excessive sentence has been pronounced. The standingcommittee on Florida court rules questioned whether this rule isprocedural or substantive and directed the subcommittee to callthis fact to the attention of the supreme court.(c) Same as second paragraph of section 920.07, FloridaStatutes.1972 Amendment.RULE 3.610 . MOTION FOR ARREST OF JUDGMENT; GROUNDS(a)one1(1)(a)hat tup;.(2)(b)hat t;.(3)(c)hat thethe defendanthethe defendant;.(4)(d)hat thethe defendanthethe defendantCommittee Note s1968 Adoption. Note that (a)(1) of the rule revamps section920.05(2)(a) through (d), Florida Statutes, in an effort tobetter take into account the fact that an accusatorial writ thatwould not withstand a motion to quash (dismiss) might wellsupport a judgment of conviction if no such motion is filed. SeeSinclair v. State, 46 So.2d 453 (1950).Note also that, where appropriate, the rule mentions"affidavit" in addition to "indictment" and "information." Thestanding committee on Florida court rules questioned whether thisrule is procedural or substantive and directed the subcommitteeto call this fact to the attention of the supreme court.1972 Amendment.RULE 3.620 . WHEN EVIDENCE SUSTAINS ONLY CONVICTION OF LESSEROFFENSE,suchtheCommittee Note s1968 Adoption.Substantially the same as section 920.06,Florida Statutes.1972 Amendment.RULE 3.630 . SENTENCE BEFORE OR AFTER MOTION FILED ; EVIDENCE ATHEARINGCommittee Note s1968 Adoption.Same as first paragraph of section 920.07,Florida Statutes. Provision for arrest of judgment is added.1972 Amendment.RULE 3.640 . EFFECT OF GRANTING NEW TRIALNew Trial for Greater Offense Prohibited.been hadoccurredhethe defendanthethe defendantWitnesses and Former Testimony at New Trial.Sssameevidenceon hispart,suchthatCommittee Note s1968 Adoption.Based on section 920.09, Florida Statutes.The second paragraph of the existing statute allows the testimonyof an absent witness, given at a former trial, to be used only ifthe witness is absent from the state or dead. This has beenenlarged to include absent witnesses who are physicallyincapacitated to attend court or who have become mentallyincapacitated to testify since the former trial.1972 Committee Note.XIII. JUDGMENTRULE 3.670 . RENDITION OF JUDGMENT,hethe defendant,suchanhethe judge,hethejudgehistheCommittee Note s1968 Adoption.To the same effect as section 921.02, FloridaStatutes, except the portion reading "in writing, signed by thejudge" which was added. Last sentence was added to permit thejudge to operate under section 948.01(3), Florida Statutes.The Florida law forming the basis of this proposal is found inarticle V, sections 4 and 5, Constitution of Florida, concerningthe right of appeal from a judgment of conviction; section924.06, Florida Statutes, specifying when a defendant may take anappeal; section 924.09, Florida Statutes, and Florida CriminalAppellate Rule 6.2 concerning the time for taking appeals by adefendant in criminal cases; and section 948.011, FloridaStatutes, providing for a sentence of a fine and probation as toimprisonment.The purpose of the proposed rule is to provide assurance thata defendant, represented or unrepresented by counsel, will haveauthoritative and timely notice of the right to appeal.1972 Amendment.[but some terminology hasbeen changed]RULE 3.680 . JUDGMENT ON INFORMAL VERDICTit is the intention ofintendedCommittee Note s1968 Adoption.Same as section 921.02, Florida Statutes.1972 Amendment.RULE 3.690 . JUDGMENT OF NOT GUILTY; DEFENDANT DISCHARGED ANDSURETIES EXONERATEDtherefromhethe defendant;.iIhethe defendanthisthedefendant's,suchtheCommittee Note s1968 Adoption.Same as section 921.04, Florida Statutes.1972 Amendment.RULE 3.691 . POST-TRIAL RELEASEWhen Authorized.s 90 So.2d 308,up;.provided thatHowever,suchthe,himthe personWritten Findings.,,suchtheAppeal from Denial.subsectionsubdivisionsuchtheConditions of Release.upof the undertakingthat hethe defendanthisthethat hethe defendantor herselfupupthat hethe defendantsaidthehethe defendantsaidthehimself,Approval of Bond.,Committee Note s1977 Amendment..apter§ sectionRrso as.apterXIV. SENTENCERULE 3.700 . SENTENCE DEFINED; PRONOUNCEMENT AND ENTRY;SENTENCING JUDGESentence Defined.Ccuphethe defendantPronouncement and Entry.,whichthatSentencing Judge.wherein which,hethe judgeshall havebecomeshimself,Committee Note s1968 Adoption.This rule is a revamped version of section921.05, Florida Statutes.1972 Amendment.SubdivisionsareRrSubdivisionwasrenRULE 3.701 . SENTENCING GUIDELINES(.) Use with Forms.(.)Statement of Purpose .(.)(.)(.)(.)(.)(.)wherewhen(.)(.)Offense Categories .9 782.04 316.193sub. 826.04 491.0112. 812.13.,and 843.01,. 817.025 806.13. 192.037 206.56 415.111 494.0018 496.413, 496.417 585.145 687.146 812.13.. 944.40..(.)General Rules and Definitions .(.)(.)(.)thatthewhichthata)(A)b)(B)whichthat(.)Additional offenses at conviction:whichthatup(.)a)Provided, however, that:1)(A)whichthat2)(B)Ss3)(C)WhereWhen4)(D)5)(E)whichthatb)(F)Adult record:ten (),c)(G)Juvenile record:whichthatsectionsubdivisionthree ()whichthat(.) ""offenders(.)(.)Guidelines ranges:inorder(.)Mandatory sentences:(.)Sentences exceeding statutory maximums:(.)Departures from the guideline sentence:whichthator. Reasons for deviating from the guidelinesshall not include factors relating toor(.)Sentencing for separate offenses:(.)(.)(.)CommitteeSentencing Guidelines Commission Notes1988 Amendments.one1Ch.chapter 316.193thirty-two()whereif 316.193whereif 316.193 316.193asenupone1andthatwhichthatthree (), 775.084theoffenderdefendantSsPpparagraphsubdivision (d)()twenty-four ()Florida Rrof Criminal Procedure 1991 Amendment.Rr.1991 Amendment.Rr.RULE 3.711 . PRESENTENCE REPORT: WHEN PREPAREDsubsectionsubdivision,CcCcTtNn,,CcCommittee Note s1972 Adoption.RULE 3.712 . PRESENTENCE REPORT: DISCLOSURECcwhichthatCcRrCommittee Note s1972 Amendment.SsAaCcRULE 3.713 . PRESENTENCE INVESTIGATION DISCLOSURE: PARTIES,SsUpoOCcwhichthatsuchtheRr1.713(b)3.713(b)Committee Note s1972 Adoption.hisdefendant'sJjto the defendanthimthe defendantwhichthatRULE 3.720 . SENTENCING HEARING,the sentencing court shallThe court shallIihimthe defendanthimthe defendanthe hasthere is,Tthethe defendantTthethe defendantor sheTthethe defendantorIi;.The court shallEewhichthat;.the courtshalland.(1979)thirty ()Committee Note s1968 Adoption (of Rule 3.730).A revamped version of section921.08, Florida Statutes.1972 RevisionAmendment .Rrwhichhethat the defendantrensuch1980 Amendment.Rrby theaddition of (d)(1) and (d)(2)post-sentencepostsentence(1979)RULE 3.730 . ISSUANCE OF CAPIAS WHE REN NECESSARY TO BRINGDEFENDANT BEFORE COURTCchethe defendant,,suchtheCcCommittee Note s1968 Adoption (of Rule 3.710).A revamped version of section921.06, Florida Statutes, adding provision that defendant berequired to be present at the adjudication of guilt.1972 Amendment.RULE 3.750 . PROCEDURE WHEN PARDON IS ALLEGED AS CAUSE FOR NOTPRONOUNCING SENTENCEhethedefendantsuchtheCcsuchthesuch personthe defendanthethedefendantsuchtheCommittee Note s1968 Adoption.A revamped version of section 921.10, FloridaStatutes.1972 Amendment.RULE 3.760 . PROCEDURE WHEN NON-IDENTITYNONIDENTITY IS ALLEGED ASCAUSE FOR NOT PRONOUNCING SENTENCECcCc,CcsuchtheCcsuchthesuchthehethe personsuchtheCommittee Note s1968 Adoption.A revamped version of section 921.11, FloridaStatutes.1972 Amendment.RULE 3.770 . PROCEDURE WHEN PREGNANCY IS ALLEGED AS CAUSE FOR NOTPRONOUNCING DEATH SENTENCECcsuchthator not suchthethree3or notor not suchtheCcCommittee Note s1968 Adoption. A revamped version of section 921.12, FloridaStatutes.Note that the rule omits the statutory provisions for thepayment of fees to the examining physicians. The supreme courtprobably does not have the power to make rules governing suchmatters.1972 Amendment.RULE 3.780 . SENTENCING HEARING FOR CAPITAL CASESEvidence.up 921.141(1975)Rebuttal.Argument.Committee Note s1977 Adoption.to be followed, whichthatSs 921.141(1975), 283 So.2d 1RULE 3.790 . PROBATION AND COMMUNITY CONTROLSuspension of the Pronouncement and Imposition ofSentence; Probation or Community Control.up,suchtheor has notRevocation of Probation andor Community Control;Judgment; Sentence.himthe personsuchthe,,forthwithimmediately,suchthehimthe personhimthe person,may besuchthe,histhe,suchtheCommittee Note s1968 Adoption.Subdivisions (a) and (b) contain theprocedural aspects of section 948.01(1), (2), and (3), FloridaStatutes. It should be noted that in (b) provision is made for nopronouncements in addition to no imposition of sentence prior tothe granting of probation. The terminology in section 948.01(3),Florida Statutes, is that the trial court shall "withhold theimposition of sentence." The selected terminology is deemedpreferable to the present statutory language since the latter isapparently subject to misconstruction whereby a sentence may bepronounced and merely the execution of the sentence issuspended.The Third District Court of Appeal has indicated that theproper procedure to be followed is that probation be grantedprior to sentencing. A sentence, therefore, is not a prerequisiteof probation. See Yates v. Buchanan, 170 So.2d 72 (Fla.3d DCA1964); also see Bateh v. State, 101 So.2d 869 (Fla. 1st DCA1958), decided by the First District Court of Appeal to the sameeffect.While a trial court initially can set a probationary period atless than the maximum allowed by law, this period may be extendedto the maximum prior to the expiration of the initially-setprobationary period. Pickman v. State, 155 So.2d 646 (Fla. 1stDCA 1963). This means, therefore, that any specific time set bythe court as to the probationary period is not binding if thecourt acts timely in modifying it. It is clear, in view of theforegoing, that if a trial judge pronounces a definite sentenceand then purports to suspend its execution and place thedefendant on probation for the period of time specified in thesentence, matters may become unduly complicated.If such procedure is considered to be nothing more than aninformal manner of suspending the imposition of sentence and thusadhering to present statutory requirements, it should be notedthat the time specified in the "sentence" is not binding on thecourt with reference to subsequent modification, if timely actionfollows. On the other hand, if the action of the trial court isconsidered strictly, it would be held to be void as not inconformity with statutory requirements.A probationary period is not a sentence, and any procedurethat tends to mix them is undesirable, even if this mixture isaccomplished by nothing more than the terminology used by thetrial court in its desire to place a person on probation. Seesections 948.04 and 948.06(1), Florida Statutes, in which cleardistinctions are drawn between the period of a sentence and theperiod of probation.(c) Contains the procedural aspects of section 948.06(1),Florida Statutes.1972 Amendment.Rrsectionssubdivisions1988 Amendment.eithereitherRULE 3.800 . CORRECTION ;, REDUCTION , ANDMODIFICATION OF SENTENCESCorrection.Reduction and Modification.sixty60sixty60upupsixty60sixty60sectionsubdivisionRrwherein whichCommittee Note s1968 Adoption.Same as sections 921.24 and 921.25, FloridaStatutes. Similar to Federal Rule of Criminal Procedure 35.1972 RevisionAmendment.1977 Amendment.1980 Amendment.sixty60,XV. EXECUTION OF SENTENCERULE 3.810 . COMMITMENT OF DEFENDANT; DUTY OF SHERIFFUponOnupbe toishethe sheriff,suchthatCommittee Note s1968 Adoption.Substantially the same as section 922.01,Florida Statutes. There has been added to the rule therequirement that, if the commitment is to the state prison, itshall be accompanied by a certified copy of the judgment ofconviction and a certified copy of the indictment or information.(Section 944.18, Florida Statutes, requires a certified copy ofthe indictment or information to be transmitted to the Divisionof Corrections; the Division of Corrections should also have acertified copy of the judgment.)1972 Amendment.RULE 3.811 . INSANITY AT TIME OF EXECUTION: CAPITAL CASESInsanity to Be Executed.he is mentallyInsanity Defined.suchtheStay of Execution.CcMotion for Stay after Governor's Determination of Sanityto Be Executed.UponOnthe CourtCcCcCc,CcCcJjSsCcSsAaCcwhichthatGgsuchthehecounselsuchtheSsSsAaCcOrder Granting.Committee Note s1988 Adoption.SsAaCcRULE 3.812 . HEARING ON INSANITY AT TIME OF EXECUTION: CAPITALCASESHearing on Insanity to Be Executed.GgIssue at Hearing.Procedure.CcsuchanyRr.;Aathree ()Cc.; orEe(e)(d)Evidence.CcCcCc(f)(e)Order.CcCc,;CcRULE 3.820 . HABEAS CORPUS ; CUSTODY PENDING APPEALCustody Pending Appeal of Order of Denial.histhehisaaofbyCustody Pending Appeal of Order Granting.ahethe prisoneruphistheprisoner'sCommittee Note s1968 Adoption.Same as section 922.03, Florida Statutes.1972 Amendment., but some terminology hasbeen changed.XVI. CRIMINAL CONTEMPTRULE 3.830 . DIRECT CRIMINAL CONTEMPTuphimthe defendanthethedefendantor sheCcCommittee Note s1968 Adoption.This proposal is consistent with presentFlorida practice in authorizing summary proceedings in directcriminal contempt cases. See Ballengee v. State, 144 So.2d 68(Fla. 2d DCA 1962); Baumgartner v. Joughin, 105 Fla. 334,141 So. 185 (1932); also see State v. Lehman, 100 Fla. 481, 129 So. 818(1930), holding that the defendant is not entitled to notice ofthe accusation or a motion for attachment. Fairness dictates thatthe defendant be allowed to present excusing or mitigatingevidence even in direct criminal contempt cases.Much of the terminology of the proposal is patterned afterFederal Rule of Criminal Procedure 42(a) with variations forpurposes of clarity. What may be considered a significant changefrom the terminology of the federal rule is that the proposalprovides for a "judgment" of contempt, whereas the term "order"of contempt is used in the federal rule. Both terms have beenused in Florida appellate cases. The term "judgment" is preferredhere since it is consistent with the procedure of adjudicatingguilt and is more easily reconciled with a "conviction" ofcontempt, common terminology on the trial and appellate levels inFlorida. It also is consistent with appeals in contempt cases.See, e.g., State ex rel. Shotkin v. Buchanan, 149 So.2d 574, 98A.L.R.2d 683 (Fla.3d DCA 1963), for the use of the term"judgment".1972 Amendment.RULE 3.840 . INDIRECT CRIMINAL CONTEMPT(a) Indirect (Constructive) Criminal Contempt.,the preceding subsectionrule3.830(1)(a)Order to Show Cause.of hison thejudge'suphimthe defendanthethe defendant(2)(b)Motions; Answer.,suchthe(3)(c)Order of Arrest; Bail.(4)(d)Arraignment; Hearing.uponhisat the defendant'smayor her(5)(e)Disqualification of Judge.,hethe judgeor herselfCcJjSsCc(6)(f)Verdict; Judgment.(7)(g)The Sentence; Indirect Contempt.himthe defendanthethe defendantCommittee Note s1968 Adoption.(a)(1)Order to Show Cause.The courts have used variousand, at times, misleading terminology with reference to thisphase of the procedure, viz. "citation," "rule nisi," "rule,""rule to show cause," "information," "indicted," and "order toshow cause." Although all apparently have been used with the sameconnotation the terminology chosen probably is more readilyunderstandable than the others. This term is used in Federal Ruleof Criminal Procedure 42(b) dealing with indirect criminalcontempts.In proceedings for indirect contempt, due process of lawrequires that the accused be given notice of the charge and areasonable opportunity to meet it by way of defense orexplanation. State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509(1946); State ex rel. Geary v. Kelly, 137 So.2d 262,263 (Fla.3d DCA 1962).The petition (affidavit is used here) must be filed by someonehaving actual knowledge of the facts and must be under oath.Phillips v. State, 147 So.2d 163 (Fla.3d DCA 1962); see alsoCroft v. Culbreath, 150 Fla. 60, 6 So.2d 638 (1942); Ex parteBiggers, 85 Fla. 322, 95 So. 763 (1923).(2)Motions; Answer.The appellate courts of Florida,while apparently refraining from making motions and answersindispensable parts of the procedure, seem to regard them withfavor in appropriate situations. Regarding motions to quash andmotion for bill of particulars, see Geary v. State, 139 So.2d 891(Fla.3d DCA 1962); regarding the answer, see State ex rel. Huiev. Lewis, 80 So.2d 685 (Fla. 1955).Elsewhere in these rules is a recommended proposal that amotion to dismiss replace the present motion to quash; hence, themotion to dismiss is recommended here.The proposal contains no requirement that the motions oranswer be under oath. Until section 38.22, Florida Statutes, wasamended in 1945 there prevailed in Florida the common law rulethat denial under oath is conclusive and requires discharge ofthe defendant in indirect contempt cases; the discharge wasconsidered as justified because the defendant could be convictedof perjury if the defendant had sworn falsely in the answer or ina motion denying the charge. The amendment of section 38.22,Florida Statutes, however, has been construed to no longerjustify the discharge of the defendant merely because thedefendant denies the charge under oath. See Exparte Earman,85 Fla. 297, 95 So. 755 (1923), re the common law; see Dodd v.State, 110 So.2d 22 (Fla.3d DCA 1959) re the construction ofsection 38.22, Florida Statutes, as amended. There appears,therefore, no necessity of requiring that a pleading directed tothe order to show cause be under oath, except as a matter ofpolicy of holding potential perjury prosecutions over the headsof defendants. It is recommended, therefore, that no oath berequired at this stage of the proceeding.Due process of law in the prosecution for indirect contemptrequires that the defendant have the right to assistance bycounsel. Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185(1932), adhered to, 107 Fla. 858, 143 So. 436 (1932).(3)Order of Arrest; Bail.Arrest and bail, althoughapparently used only rarely, were permissible at common law and,accordingly, are unobjectionable under present Florida law. Attimes each should serve a useful purpose in contempt proceedingsand should be included in the rule. As to the common law, see Exparte Biggers, supra.(4)Arraignment; Hearing.Provision is made for apre-hearing arraignment in case the defendant wishes to pleadguilty to the charge prior to the date set for the hearing. Thedefendant has a constitutional right to a hearing under the dueprocess clauses of the state and federal constitutions. State exrel. Pipia v. Buchanan, 168 So.2d 783 (Fla.3d DCA 1964). Thisright includes the right to assistance of counsel and the rightto call witnesses. Baumgartner v. Joughin, supra. The defendantcannot be compelled to testify against himself. Demetree v.State, ex rel. Marsh, 89 So.2d 498 (Fla. 1956).Section 38.22, Florida Statutes, as amended in 1945, providesthat all issues of law or fact shall be heard and determined bythe judge. Apparently under this statute the defendant is notonly precluded from considering a jury trial as a right but alsothe judge has no discretion to allow the defendant a jury trial.See State ex rel. Huie v. Lewis, supra, and Dodd v. State, supra,in which the court seems to assume this, such assumptionseemingly being warranted by the terminology of the statute.There is no reason to believe that the statute isunconstitutional as being in violation of section 11 of theDeclaration of Rights of the Florida Constitution which provides,in part, that the accused in all criminal prosecutions shall havethe right to a public trial by an impartial jury. Criminalcontempt is not a crime; consequently, no criminal prosecution isinvolved. Neering v. State, 155 So.2d 874 (Fla. 1963); State exrel. Saunders v. Boyer, 166 So.2d 694 (Fla.2d DCA 1964);Ballengee v. State, 144 So.2d 68 (Fla.2d DCA 1962).Section 3 of the Declaration of Rights, providing that theright of trial by jury shall be secured to all and remaininviolate forever, also apparently is not violated. Thisprovision has been construed many times as guaranteeing a jurytrial in proceedings at common law, as practiced at the time ofthe adoption of the constitution (see, e.g., Hawkins v. RellimInv. Co., 92Fla. 784, 110 So. 350 (1926)), i.e., it is applicableonly to cases in which the right existed before the adoptionof the constitution (see, e.g., State ex rel. Sellers v.Parker, 87 Fla. 181, 100 So. 260 (1924)). Section 3 was neverintended to extend the right of a trial by jury beyond thispoint. Boyd v. Dade County, 123 So.2d 323 (Fla. 1960).There is some authority that trial by jury in indirectcriminal contempt existed in the early common law, but thispractice was eliminated by the Star Chamber with the result thatfor centuries the common law courts have punished indirectcontempts without a jury trial. See 36 Mississippi Law Journal106. The practice in Florida to date apparently has beenconsistent with this position. No case has been found in thisstate in which a person was tried by a jury for criminalcontempt. See Justice Terrell's comment adverse to such jurytrials in State ex rel. Huie v. Lewis, supra.The United States Supreme Court has assumed the same positionwith reference to the dictates of the common law. Quoting fromEilenbecker v. District Court, 134 U.S. 31, 36, 10 S.Ct. 424, 33L.Ed. 801 (1890), the Court stated, "If it has ever beenunderstood that proceedings according to the common law forcontempt of court have been subject to the right of trial byjury, we have been unable to find any instance of it." UnitedStates v. Barnett, 376 U.S. 681, 696, 84 S.Ct. 984, 12 L.Ed.2d 23(1964). In answer to the contention that contempt proceedingswithout a jury were limited to trivial offenses, the Courtstated, "[W]e find no basis for a determination that, at the timethe Constitution was adopted, contempt was generally regarded asnot extending to cases of serious misconduct." 376 U.S. at 701.There is little doubt, therefore, that a defendant in a criminalcontempt case in Florida has no constitutional right to a trialby jury.Proponents for such trials seemingly must depend onauthorization by the legislature or Supreme Court of Florida toattain their objective. By enacting section 38.22, FloridaStatutes, which impliedly prohibits trial by jury the legislatureexhibited a legislative intent to remain consistent with thecommon law rule. A possible alternative is for the Supreme Courtof Florida to promulgate a rule providing for such trials andassume the position that under its constitutional right to governpractice and procedure in the courts of Florida such rule wouldsupersede section 38.22, Florida Statutes. It is believed thatthe supreme court has such authority. Accordingly, alternateproposals are offered for the court's consideration; the firstprovides for a jury trial unless waived by the defendant and thealternate is consistent with present practice.(5)Disqualification of Judge.Provision for thedisqualification of the judge is made in federal rule 42(b). Theproposal is patterned after this rule.Favorable comments concerning disqualification of judges inappropriate cases may be found in opinions of the Supreme Courtof Florida. See Pennekamp v. State, 156 Fla. 227, 22 So.2d 875,(1945), and concurring opinion in State ex rel Huie v. Lewis,supra.(6)Verdict; Judgment."Judgment" is deemed preferable tothe term "order," since the proper procedure involves anadjudication of guilty. The use of "judgment" is consistent withpresent Florida practice. E.g., Dinnen v. State, 168 So.2d 703(Fla. 2d DCA 1964); State ex rel. Byrd v. Anderson, 168 So.2d 554(Fla. 1st DCA 1964).The recital in the judgment of facts constituting the contemptserves to preserve for postconviction purposes a composite recordof the offense by the person best qualified to make such recital:the judge. See Ryals v. United States, 69 F.2d 946 (5th Cir.1934), in which such procedure is referred to as "goodpractice."(7)Sentence; Indirect Contempt.The substance of thissubdivision is found in present sections 921.05(2), 921.07 and921.13, Florida Statutes. While these sections are concerned withsentences in criminal cases, the First District Court of Appealin 1964 held that unless a defendant convicted of criminalcontempt is paid the same deference the defendant is not beingaccordeddue process of law as provided in section 12 of theDeclaration of Rights of the Florida Constitution and theFourteenth Amendment of the Constitution of the United States.Neering v. State, 164 So.2d 29 (Fla. 1st DCA 1964).Statement concerning the effect the adoption of this proposedrule will have on contempt statutes:This rule is not concerned with the source of the power ofcourts to punish for contempt. It is concerned with desirableprocedure to be employed in the implementation of such power.Consequently, its adoption will in no way affect the Floridastatutes purporting to be legislative grants of authority to thecourts to punish for contempt, viz., sections 38.22 (dealing with"all" courts), 932.03 (dealing with courts having originaljurisdiction in criminal cases), and 39.13 (dealing with juvenilecourts). This is true regardless of whether the source of poweris considered to lie exclusively with the courts as an inherentpower or is subject, at least in part, to legislative grant.The adoption of the rule also will leave unaffected thenumerous Florida statutes concerned with various situationsconsidered by the legislature to be punishable as contempt (e.g.,section 38.23, Florida Statutes), since these statutes deal withsubstantive rather than procedural law.Section 38.22, Florida Statutes, as discussed in the precedingnotes, is concerned with procedure in that it requires the courtto hear and determine all questions of law or fact. Insofar,therefore, as criminal contempts are concerned the adoption ofthe alternate proposal providing for a jury trial will mean thatthe rule supersedes this aspect of the statute and the statuteshould be amended accordingly.1972 Amendment.XVII. POST-CONVICTIONPOSTCONVICTION RELIEFRULE 3.850 . MOTION TO VACATE, SET ASIDE , OR CORRECT SENTENCE ;HEARING; APPEAL(a)Grounds for Motion.upLl,orsuchthesuchtheororhisthethat,, inwhichthat,,(b)Time Limitations.whichthattwo2thatuphisthe movant's,(c)Contents of Motion.the following information(a)(1)Tt(b)(2)Ww(c)(3)Wwpost-convictionpostconviction(d)(4)Ii,why.;(e)(5)Tt:; and(f)(6)Aaupupwhichthat(d)Procedure; Evidentiary Hearing; Disposition.UpoORr,and the,suchtheupwhichthatandthe,,SsAapost-convictionpostconvictionthe courtup,orasideasidethe prisonerhimthe prisoner,orhim,(e)Prisoner's Presence Not Required.suchthe(f)Successive Motions.histhe(g)Appeal; Rehearing; Service on Prisoner.post-convictionpostconvictionthirty30fifteen15uppost-convictionpostconviction(h)Habeas Corpus.inon,whichthathimthe applicant,suchthehimthe applicanthisthe applicant'sCommittee Note s1972 RevisionAmendment.RrAa1977 Amendment ( 343 So.2d 1247) .RrSsAa,,Ffpost-convictionpostconvictionup,trial courts will,uptrial courts willhe couldtoie1984 Amendment.subruleFederal Rule of Criminal ProcedureRuleof the Federal Rules of Criminal Procedure.thoughifRrnon-conformingnonconformingnon-complyingnoncomplying1992 Amendment.Pursuant to State v. District Court ofAppeal of Florida, First District, 569 So.2d 439 (Fla. 1990),motions seeking a belated direct appeal based on the ineffectiveassistance of counsel should be filed in the trial court underrule 3.850. Also, see rule 3.111(e) regarding trial counsel'sduties before withdrawal after judgment and sentence.RULE 3.851 . COLLATERAL RELIEF AFTER A DEATH WARRANT IS SIGNEDTime for Filing.sixty60thirty30thirty30(1)(1)upthirty30thirty30Rehearing; Appeal.upparagraphsubdivisiontwo2,upparagraphsubdivisionthree3XVIII. FORMSRULE 3.985 . STANDARD JURY INSTRUCTIONSSshethe judgesuchtheaccurately and sufficientlyinaccurately and sufficiently onhethe judge'shisthe judge'ssuchthehethe judgeaccurately and sufficientlyaccurately and sufficientlyhethe judgehethe judgehisthesuchtheCommittee Note s1972 Amendment.RULE 3.987 . MOTION FOR POST-CONVICTIONPOSTCONVICTION RELIEFPOST-CONVICTIONPOSTCONVICTIONNUMBERIN THE CIRCUIT COURT OF THE________ JUDICIAL CIRCUIT,IN AND FOR ________COUNTY, FLORIDACRIMINAL DIVISIONCASE NUMBER: ___________(the original case number)STATE OF FLORIDA )In the Circuit Court of the__________ Judicial Circuit,in and for ____________County, FloridaState of Florida )s.Criminal DivisionCase No.: __________(the original case number)POST-CONVICTIONPOSTCONVICTIONwhichthatMmLlMmMmPost-ConvictionpostconvictionRrMmPost-ConvictionpostconvictionRrwhichthatthatCcCc..... (county where sentencewas imposed) _____________ .... (address of clerk) ....,whichthatGgCcGg,pre-trialpretrial,"",""CcCcpost-convictionpostconvictionwhichthatCclwhichthatwhichthatlone1two2three3four4,,why,""Ccpost-convictionpostconvictionpost-convictionpostconvictionMmpraysrequestsCchethe movantCcor sheDdor sheMmPost-ConvictionpostconvictionRr;,(print, type, or stamp commissionedname of notary public)Personally known ________________ or produced identification _______________Type of Identification produced ____________________________________________RULE 3.986. Forms Related to Judgment and Sentence.(a) Sufficiency of Forms.(b) Form for Judgment. 943.325DONE AND ORDERED in open court in ______ County, Florida, this _______day of _______, 19__.JudgeFINGERPRINTS OF DEFENDANTon thisjudgmentDONE AND ORDERED in open court in ________ County, Florida, this ______day of _______, 19__.(c) Form for Charges, Costs, and Fees.CHARGES/COSTS/FEES$20.0050.00 943.25 943.25 775.0835 775.083 (d) Form for Sentencing.SENTENCE 775.083 958.04 SPECIAL PROVISIONS 775.087 893.135 893.13 775.084 775.084 775.0823 775.082 790.221 893.20Taking a Law Enforcement Officer's Firearm____ It is further ordered that the 3-year mandatory minimum imprisonmentprovision of section 775.0875(1), Florida Statutes, is hereby imposedfor the sentence specified in this count. 947.16 (e) Form for Order of Probation.ORDER OF PROBATION(f) Form for Community Control.ORDER OF COMMUNITY CONTROL(g) Form for Restitution Order.RESTITUTION ORDERCommittee Note1980 Amendment. 20.315 321 So.2d 453

APPENDIX I These rules shall govern the procedure in all criminal proceedings in tate courts including proceedings involving direct and indirect criminal contempt, proceedings under ule 3.850 , and vehicular and pedestrian traffic offenses insofar as these ules are made applicable by the Florida Rules of Practice and Procedure for Traffic Courts. These ules shall not apply to direct or indirect criminal contempt of a court acting in any appellate capacity. These ules shall not apply to ules 3.811 and 3.812 . These ules as the Rules of Criminal Procedure and as R. Crim.P. Amended to provide for applicability of ules to ehicular raffic ffenses, when made so by the raffic ourt ules. (a) Every pleading subsequent to the initial indictment or information on which defendant is to be tried unless the court otherwise orders, and every order not entered in open court, every written motion unless it is one as to which a hearing ex parte is authorized, and every written notice, demand and similar paper shall be served on each party; however, nothing herein shall be construed to require that a plea of not guilty shall be in writing. (b) under these rules service is required or permitted to be made on a party represented by an attorney the service shall be made on the attorney unless service on the party is ordered by the court. Service on the attorney or on a party shall be made by delivering a copy to or by mailing it to last known address, or, if no address is known, by leaving it with the clerk of the court who shall place it in the court file. Delivery of a copy within this rule shall mean: handing it to the attorney or to the party; or leaving it at office with secretary or other person in charge or if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at usual place of abode with family above years of age and informing person of the contents Service by mail shall be deemed complete upon mailing. (c) All original papers, copies of which are required to be served on parties, must be filed with the court either before service or immediately thereafter. (d) The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him in which event shall note thereon the filing date and transmit them to the office of the clerk. (e) When any attorney shall in substance certify: I do certify that copy (copies) hereof have been furnished to (here insert name or names) by (delivery) (mail) this ____ day of ___________, 19__ __________ Attorney the certificate shall be taken as prima facie proof of service in compliance with all rules of court and law. Same as prior rule; (a) amended by deleting reference to trial on affidavit. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day is neither a Saturday, Sunday nor legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation, except for the periods of time of less than 7 days contained in ules 3.130, 3.132(a) and (c), and 3.133(a). Same as prior rule. The 1983 amendments resulted in the reallocation of the time periods in ule 3.131 to ule 3.133, and also added important 5-day period in the new rule regarding pretrial detention in ule 3.132. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or extended by a previous order or (2) upon motion made and notice after the expiration of the specified period permit the act to be done the failure to act was the result of excusable neglect; but it may not, except as provided by statute or elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal. Same as prior rule. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper and the notice or paper is served by mail, 3 days shall be added to the prescribed period. Same as prior rule. (a) A person entitled to appointment of counsel as provided herein shall have counsel appointed when is formally charged with an offense, or as soon as feasible after custodial restraint or first appearance before a committing magistrate, whichever occurs earliest. (b) (1) Counsel shall be provided to indigent persons in all prosecutions for offenses punishable by imprisonment (or by incarceration in a juvenile corrections institution) including appeals from the conviction thereof. Counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or violation of a municipal ordinance if the judge, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned convicted. (2) Counsel may be provided to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including postconviction proceedings and appeals therefrom, extradition proceedings, mental competency proceedings, and other proceedings are adversary in nature, regardless of the designation of the court in which they occur or the classification of the proceedings as civil or criminal. (3) Counsel may be provided to a partially indigent person on request provided that person shall defray that portion of the cost of such representation and the reasonable costs of investigation as he is able without substantial hardship to or family, as directed by the court. (4) "Indigent" as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to or family; "partially indigent" as used herein shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to or family. (5) The court shall, prior to appointing a public defender nform the accused that if the public defender is appointed, a lien for the services rendered by the public defender may be imposed section 27.56, Florida Statutes ; ake inquiry into the financial status of the accused in a manner not inconsistent with the guidelines established by section , Florida Statutes. The accused shall respond to the inquiry under oath; equire the accused to execute an affidavit of insolvency in the format provided by section , Florida Statutes (c) In addition to any other duty, the officer who commits a defendant to custody has the following duties: (1) shall immediately advise the defendant: of right to counsel; that if the defendant is unable to pay a lawyer, one will be provided immediately at no charge. (2) If the defendant requests counsel or advises the officer he cannot afford counsel, officer shall immediately and effectively place defendant in communication with the (office of) ublic efender of the circuit in which the arrest was made. (3) If the defendant indicates he has an attorney or is able to retain an attorney, the officer shall immediately and effectively place defendant in communication with attorney or the Lawyer Referral Service of the local bar association. (4) The ublic efender of each udicial ircuit may contacted by, or on behalf of a defendant who is, or to be indigent as defined by law If the defendant is in custody and reasonably appears to be indigent, the ublic efender shall tender such advice as is indicated by the facts of the case seek the setting of a reasonable bail and otherwise represent defendant pending a formal judicial determination of indigency. If the defendant is at liberty on bail or otherwise not in custody, the ublic efender shall elicit only such information from the defendant as may be reasonably relevant to the question of indigency and shall immediately seek a formal judicial determination of indigency. If the court finds the defendant indigent, it shall immediately appoint counsel to represent defendant. (d) (1) The failure of a defendant to request appointment of counsel or announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings. (2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused's comprehension of that offer and capacity to make intelligent and understanding. (3) No waiver shall be accepted it appears that the defendant is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors. (4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than attesting witnesses. witnesses shall attest the voluntary execution thereof. (5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel. (e) Part 1 of the ABA Standard relating to roviding efense ervices deals with the general philosophy for providing criminal defense services and while the committee felt that the philosophy should apply to the Florida Rules of Procedure, the standards were not in such form to be the subject of that particular rule. Since the standards deal with the national situation, contained in them were alternative methods of providing defense services, , assigned counsel vs. defender system; but, Florida, already having a defender system, need not be concerned with the assigned counsel system. (a) Taken from the first sentence of ABA Standard 5.1. There was considerable discussion within the committee concerning the time counsel should be appointed and who should notify defendant's counsel. The commentary in the ABA Standard under 5.1a, b, convinced the committee to the language here contained. (b) Standard 4.1 provides that counsel should be provided in all criminal cases punishable by loss of liberty, except those types where such punishment is not likely to be imposed. The committee determined that the philosophy of such tandard should be recommended to the Florida Supreme Court. The committee determined that possible deprivation of liberty for any period makes a case serious enough that the accused should have the right to counsel. (c) Based on recommendation of ABA Standard 5.1b and the commentary thereunder which provides that implementation of a rule for providing the defendant with counsel should not be limited to providing a means for the accused to contact a lawyer. (d) From tandard 7.2 and the commentaries thereunder. Modification of the existing ule provides a greater degree of uniformity in appointing counsel to indigent defendants. The defendant is put on notice of the lien for public defender services and must give financial information under oath. A survey of Florida judicial circuits by the Committee on Representation of Indigents of the Criminal Law Section (1978-79) disclosed the fact that several circuits had no procedure for determining indigency and that there were circuits in which no affidavits of insolvency were executed (and no legal basis for establishing or collecting lien monies). The state attorney shall provide the personnel or procedure for criminal intake in the judicial system. All sworn complaints charging the commission of a criminal offense shall be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceeding. Each state and county judge is a committing magistrate and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when the complaint states facts show that such person violated a criminal law of this tate within the jurisdiction of the magistrate to whom the complaint is presented. The magistrate may take testimony under oath to determine if there is reasonable ground to believe the complaint is true. The magistrate may commit the offender to jail, may order the defendant to appear before the proper court to answer the charge in the complaint, or may discharge from custody or from any undertaking to appear. The magistrate may authorize the clerk to issue a summons. Substantially same as former rule. Altered to incorporate the provision for testimony under oath formerly contained in ule 3.121(a), and authorizes the execution of the affidavit before a notary or other persons authorized to administer oaths. (a) An arrest warrant, when issued shall: (1) e in writing and in the name of the State of Florida; (2) et forth substantially the nature of the offense; (3) ommand that the person against whom the complaint was made be arrested and brought before a magistrate; (4) pecify the name of the person to be arrested or, if name is unknown to the magistrate, designate person by any name or description by which can be identified with reasonable certainty; (5) tate the date when issued and the ounty where issued; (6) e signed by the magistrate with title of office; and (7) n all offenses bailable as of right be endorsed with the amount of bail and the return date. (b) No arrest warrant shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but the warrant may be amended by the magistrate to remedy such defect. (a) of former rule has been deleted, as its substance is now contained in ules 3.120 and 3.130; (b) has been renumbered as (a); (c) has been renumbered as (b). (a) 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) 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) he accused fails or refuses to sufficiently identify himself or supply the required information; (2) he accused refuses to sign the notice to appear; (3) he officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to or others; (4) he accused has no ties with the jurisdiction reasonably sufficient to assure appearance or there is substantial risk that will refuse to respond to the notice; (5) he officer has any suspicion that the accused may be wanted in any jurisdiction; or (6) t 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) If the arresting officer does not issue notice to appear because of one of the exceptions listed in (b)(1) (b)(6) and takes the accused to police headquarters, the booking officer may issue notice to appear if determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of (1) esidence and length of residence in the community; (2) amily ties in the community; (3) mployment record; (4) haracter and mental condition; (5) ast record of convictions; or (6) ast history of appearance at court proceedings. (d) If notice to appear is issued it shall be prepared in quadruplicate. The officer shall deliver copy of the notice to appear to the arrested person and person, to secure release, shall give written promise to appear in court by signing the remaining copies: to be retained by the officer and to be filed with the clerk of court. These copies shall be sworn to by the arresting officer before a otary ublic or a eputy lerk. If notice to appear is issued pursuant to (b), the notice shall be issued immediately upon arrest. If notice to appear is issued pursuant to (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 otice to ppear 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 copies shall be filed with the clerk of court. (f) The clerk shall deliver copy of the notice to appear and schedule of witnesses and evidence filed therewith to the tate ttorney. (g) If notice to appear is issued it shall contain the : (1) ame and address of the accused; (2) ate of offense; (3) ffense(s) charged — by statute and municipal ordinance if applicable; (4) ounts of each offense; (5) ime and place the accused is to appear in court; (6) ame and address of the trial court having jurisdiction to try the offense(s) charged; (7) ame of the arresting officer; (8) ny other person(s) charged at the same time; and (9) ignature of the accused. (h) 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 ule 3.121. (i) Nothing contained herein shall prevent the operation of a traffic violations bureau, the issuance of citations for traffic violations or any procedure pursuant to hapter 316, Florida Statutes . (j) 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. Upon the appearance of the accused before the court pursuant to the requirements of the otice to ppear, the ourt shall advise the defendant as set forth in ule 3.130(b), and the provisions of rule shall apply. The accused at such appearance may waive right to counsel and trial and enter plea of guilty or nolo contendere by executing the waiver form contained on the otice to ppear, and the ourt may 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 nonjury trial on the otice to ppear pursuant to the provisions of ule 3.160 . Upon the setting of a trial date by the ourt, the lerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the otice to ppear and to the witnesses whose names and addresses appear on the list filed by the officer, requiring their attendance at trial. The otice to ppear and chedule of itnesses and vidence 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: On the __________________ day of ________________, 19__, at _______________ () () ________________________ ____________ _____________ _______________________ 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 ________________ () () 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, I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST SHALL BE ISSUED. ___________________________________ Signature of Defendant I swear the above and reverse and attached statements are true and correct to the best of my knowledge and belief. ___________________________________ Complainant ___________________________________ Agency or Department Sworn to and subscribed before me this _______ day of _______, 19_. ___________________________________ Notary Public, State of Florida WAIVER INFORMATION If you desire to plead guilty or nolo contendere (no contest) and you need not appear in court as indicated on the face of this notice, you may present this notice at the county court named on the reverse of this page. From _________________, _______________ to __________________, ___________ Date Hour Date Hour and pay a fine of ______ dollars in cash, money order, or certified check. The waiver below must be completed and attached. Read carefully. Your failure to answer this summons in the manner subscribed will result in a warrant being issued on a separate and additional charge. "In consideration of my not appearing in court, I the undersigned, do hereby enter my appearance on the affidavit for the offense charged on the other side of this notice and waive the reading of the affidavit in the above named cause and the right to be present at the trial of said action. I hereby enter my plea of Guilty or Nolo Contendere , and waive my right to prosecute appeal or error proceedings. "I understand the nature of charge against me; I understand my right to have counsel and waive this right and the right to a continuance. I waive my right to trial before a judge or jury. I plead Guilty or Nolo Contendere to the charge being fully aware that my signature to this plea will have the same effect as a judgment of this ourt." Total Fine and Cost _______________________________________________________ Defendant Signature _______________________________________________________ Address ___________________________________________________________________ ___________________________________________________________________________ IN THE COUNTY COURT, IN AND FOR ______ COUNTY, FLORIDA SCHEDULE OF WITNESSES AND EVIDENCE FOR NOTICE TO APPEAR ___________________________________ Agency Case # ___________________________________________________________________________ Last Name First M.I. Aliases ___________________________________________________________________________ Address ____________________________________________ Offense(s): (1) ______________ Date of Notice to Appear (2) ______________ TANGIBLE EVIDENCE: (If none, write "None") Item: ___________________________________________________________________ Obtained from (erson and/or lace): __________________________________ first received by: _____________________________ given to: ______________ WITNESSES: (If none, write "None") # 1 Name: _________________________________________________________________ Res. Tel. No. _________________________ Address: __________________________ Bus. Tel. No. _________________________ Business: _________________________ Testimony: ________________________________________________________________ ___________________________________________________________________________ # 2 Name: _________________________________________________________________ Res. Tel. No. _________________________ Address: __________________________ Bus. Tel. No. _________________________ Business: _________________________ Testimony: ________________________________________________________________ ___________________________________________________________________________ # 3 Name: _________________________________________________________________ Res. Tel. No. _________________________ Address: __________________________ Bus. Tel. No. _________________________ Business: _________________________ Testimony: ________________________________________________________________ ___________________________________________________________________________ I certify that the foregoing is a complete list of witnesses and evidence known to me. ___________________________________ Investigating Officer ___________________________________ Agency (a) Except when previously released in a lawful manner, every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest. In the case of a child in the custody of juvenile authorities, against whom an information or indictment has been filed, the child shall be taken for a first appearance hearing within 24 hours of the filing of the information or indictment. The chief judge of the circuit for each county within the circuit shall designate or more judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings. (b) the defendant's first appearance the magistrate shall immediately inform of the charge and provide with a copy of the complaint. The magistrate shall also adequately advise the defendant : (1) is not required to say anything, and that anything says may be used against him (2) f unrepresented, that has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed (3) has a right to communicate with counsel, family, or friends, and if necessary, will be provided to do so. (c) (1) practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, shall immediately appoint counsel. This determination must be made and, required, counsel appointed no later than the time of the first appearance, and any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate. (2) the defendant has employed or is financially able and desires to employ counsel to represent him at first appearance, the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the first appearance hearing for purpose. The magistrate shall also, on request of the defendant, require an officer to communicate a message to such counsel as the defendant may name. The officer shall with diligence and without cost to the defendant if the counsel is within the county, perform the duty. If the postponement will likely result in the continued incarceration of the defendant beyond a 24-hour period, at the request of the defendant the magistrate may appoint counsel to represent the defendant for the first appearance hearing. (3) No further steps in the proceedings should be taken until the defendant and counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel. (4) The defendant may waive right to counsel at first appearance waiver, containing an explanation of right to counsel, shall be in writing and signed and dated by the defendant. This written waiver of counsel shall, in addition, contain a statement that it is limited to first appearance only and shall in no way be construed to be a waiver of counsel for subsequent proceedings. (d) The judicial officer shall proceed to determine conditions of release pursuant to 3.131. Same as prior rule except (b), which is new. (a) Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of judicial process, the accused may be detained. (b) (1) Unless the tate has filed a motion for pretrial detention pursuant to ule 3.132, the court shall conduct a hearing to determine pretrial release. For the purpose of this rule, bail is defined as any of the forms of release stated below. There is a presumption in favor of release on conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following conditions of release will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, any combination of the following conditions: ersonal recognizance of the defendant; xecution of an unsecured appearance bond in an amount specified by the judge; restrictions on the travel, association, or place of abode of the defendant during the period of release; the defendant in custody of a designated person or organization agreeing to supervise execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy bail by providing an appearance bond any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours. (2) The judge shall at the defendant's first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant's appearance. If a monetary bail is required, the judge shall determine the amount. (3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstance of the offense charged and the penalty provided by law the weight of the evidence against the defendant the defendant's family ties, length of residence in the community, employment history, financial resources, and mental condition; the defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings the nature and probability of danger the defendant's release poses to the community the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of sentence and any other facts the court considers relevant. (4) All information provided by a defendant in connection with any application for or attempt to secure bail, to any court, court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete, without omissions to the best knowledge of the defendant. Failure to comply with the provisions of this may result in the revocation or modification of bail. However, no defendant shall be compelled to provide information regarding his criminal record. (5) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence. (c) (1) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in ection Florida Statutes, and who voluntarily appears or surrenders shall not be eligible for a recognizance bond. (2) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in ection Florida Statutes, and who is arrested at any time following forfeiture shall not be eligible for a recognizance bond or any form of bond does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater. (d) (1) When a judicial officer not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try the defendant, and bail has been denied or sought to be modified, application by motion may be made to the court having jurisdiction to try the defendant or in the absence of the judge of trial court, to the circuit court. motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless judge : mposed the conditions of bail or set the amount of bond required; s the chief judge of the circuit in which the defendant is to be tried; as been assigned to preside over the criminal trial of the defendant; or s the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release. (2) Applications by the defendant for modification of bail on any felony charge must be heard by a court in person at a hearing, with the defendant present and with at least 3 hours notice to the state attorney and county attorney, if bond forfeiture proceedings are handled by the county attorney. The state may apply for modification of bail by showing good cause and with at least 3 hours notice to the attorney for defendant. (3) any trial court fixes bail and refuses its reduction before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail. If application is made to the supreme court or district court of appeal, notice and a copy of such application shall be given to the attorney general and the state attorney. Such proceedings shall be determined promptly. (e) (1) If a person is admitted to bail for appearance for a preliminary hearing or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that will appear for hearing or to answer the charge and will submit to the orders and process of the magistrate trying the same and will not depart without leave. (2) If is admitted to bail after held to answer by a magistrate or after an indictment or information on which is to be tried has been filed , the condition of the undertaking shall be that will appear to answer the charges before the court in which he may be prosecuted and submit to the orders and process of the court and will not depart without leave. (f) The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit to the custody of the proper official to abide the judgment, sentence and any further order of the court. (g) The court in which the cause is pending may direct the arrest and commitment of the defendant who is at large on bail : (1) there has been a breach of the undertaking; (2) it appears that sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state; (3) the court is satisfied that the bail should be increased or new or additional security required The order for the commitment of the defendant shall recite generally the facts on which it is based and shall direct that the defendant be arrested by any official authorized to make arrests and that the defendant be committed to the official in whose custody he would be he not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order on a certified copy thereof, in any county, in the same manner as on a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment, the defendant shall be committed. If the order is made for any other cause, the court may determine the conditions of release, if any. (h) If the defendant applies to be admitted to bail after recommitment, the court recommitted shall determine conditions of release, if any, subject to the limitations of above. (i) If the defendant offers bail after recommitment, each surety shall possess the qualifications and sufficiency and the bail shall be furnished in all respects in the manner prescribed for admission to bail before recommitment. (j) the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall issue or shall direct the clerk to issue, either immediately or when so directed by the prosecuting attorney, a capias for the arrest of person. If the person named in the indictment or information is a child and child has been served with a promise to appear under the Florida Rules of Juvenile Procedure, capias need not be issued. Upon the filing of the indictment or information, the judge shall endorse the amount of bail, if any, and may authorize the setting or modification of bail by the judge presiding over the defendant's first appearance hearing. This endorsement shall be made on the capias and signed by the judge. (k) When a complaint is filed charging the commission of a misdemeanor only and the magistrate deems that process should issue as a result, or when an indictment or information on which the defendant is to be tried charging the commission of a misdemeanor only, and the person named in it is not in custody or at large on bail for the offense charged, the magistrate or judge shall direct the clerk to issue a summons instead of a capias unless the magistrate or judge has reasonable ground to believe that the person will not appear in response to a summons in which event an arrest warrant or a capias shall be issued with the amount of bail endorsed on it. The summons shall state substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the judge issuing the summons or the judge having jurisdiction of the offense at a time and place stated in it. () the filing of an indictment or information or complaint charging a corporation with the commission of a crime, whether felony or misdemeanor, the judge shall direct the clerk to issue or shall issue a summons to secure its appearance to answer the charge. If, after being summoned, the corporation does not appear, a plea of not guilty shall be entered and trial and judgment shall follow without further process. This proposal amends (b)(4) of the present rule [formerly ule 3.130(b)(4)] to expand the forms of release available to the judge. The options are the same as those available under the federal rules without the presumption in favor of release on personal recognizance or unsecured appearance. This proposal leaves it to the sound discretion of the judge to determine the least onerous form of release which will still insure the defendant's appearance. It also sets forth the specific factors the judge should take into account in making this determination. Rule 3.131(d) is intended to replace former ule 3.130(f) and therefore contemplates all subsequent modifications of bail including all increases or reductions of monetary bail or any other changes sought by the tate or by the defendant. (a) A person arrested for an offense for which detention may be ordered under ection Florida Statutes shall be taken before a judicial officer for a first appearance within 24 hours of arrest. The tate may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by the tate ttorney or assistant setting forth with particularity the grounds and the essential facts on which pretrial detention is sought and certifying that has received testimony under oath supporting the grounds and the essential facts alleged in the motion. If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of ule 3.131(b)(1). If the motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine whether there is probable cause that the person committed the offense. If probable cause is found, the person may be detained in custody pending a final hearing on pretrial detention. If probable cause is established after first appearance pursuant to the provisions of ule 3.133 and the person has been released from custody, may be recommitted to custody pending a final hearing on pretrial detention. (b) A motion for pretrial detention may be filed at any time prior to trial. motion shall be made to the court with trial jurisdiction. receipt of a facially sufficient motion and a determination of probable cause, unless otherwise previously established, that an offense eligible for pretrial detention has been committed, the following shall occur: (1) In the event of exigent circumstances, the court shall issue a warrant for the arrest of the named person, if person has been released from custody. The person may be detained in custody pending a final hearing on pretrial detention. (2) In the absence of exigent circumstances, the court shall order a hearing on motion as provided in (c) below. (c) (1) A final order of pretrial detention shall be entered only after a hearing in the court of trial jurisdiction. The hearing shall be held within 5 days of the filing of the motion or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later. The tate ttorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in ection Florida Statutes. The defendant may request a continuance. The tate shall be entitled to continuance for good cause. No continuance shall exceed 5 days unless there are extenuating circumstances. The defendant may be detained pending the hearing, but in no case shall be detained in excess of 10 days, unless delay is sought by the defendant. The person sought to be detained is entitled to representation by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence. No testimony by the defendant shall be admissible to prove the guilt of the defendant at any other judicial proceeding, but may be admitted in an action for perjury based on the defendant's statements made at the pretrial detention hearing or for impeachment. (2) The court's pretrial detention order shall be based solely on evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing. (3) The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention. (4) any trial court enters a final order of pretrial detention, the defendant may obtain review by motion to the appropriate appellate court. If motion for review is taken to the supreme court or the district court of appeal, notice and copy of motion shall be served on the attorney general and the state attorney; if review is taken to the circuit court, service shall be on the state attorney. (d) If ordered detained pending trial pursuant to ection Florida Statutes, the defendant may not be held more than 90 days. Failure of the state to bring the defendant to trial within that time shall result in release from detention subject to any conditions of release, unless the trial delay was requested or caused by the defendant or counsel. (a) (1) In all cases the defendant is in custody, a nonadversary probable cause determination shall be held before a magistrate within 72 hours from the time of the defendant's arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a magistrate and an arrest warrant issued for the specific offense for which the defendant is charged. The magistrate for good cause may continue the proceeding for not more than 24 hours beyond the 72-hour period. This determination shall be made if the necessary proof is available at the time of the first appearance as required under ule 3.130, but the holding of this determination at time shall not affect the fact that it is a nonadversary proceeding. (2) A defendant who has been released from custody before a probable cause determination is made and who is able to establish that pretrial release conditions are a significant restraint on his liberty may file a written motion for a nonadversary probable cause determination setting forth with specificity the items of significant restraint that a finding of no probable cause would eliminate. The motion shall be filed within 21 days from the date of arrest, and notice shall be given to the tate. magistrate finds significant restraints on the defendant's liberty make a probable cause determination within 7 days from the filing of the motion. (3) Upon presentation of proof, the magistrate shall determine whether there is probable cause for detaining the arrested person pending further proceedings. The defendant need not be present. In determining probable cause to detain the defendant, the magistrate shall apply the standard for issuance of an arrest warrant, and finding may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded. (4) If probable cause is found, the defendant shall be held to answer the charges. If probable cause is not found or the specified time periods are not complied with, the defendant shall be released from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court at a time certain. Any release occasioned by a failure to comply with the specified time periods shall be by order of the magistrate on a written application filed by the defendant with notice sent to the state or by a magistrate without a written application but with notice to the state. The magistrate shall order the release of the defendant after it is determined that the defendant is entitled to release and after the state has a reasonable period of time, not to exceed 24 hours, in which to establish probable cause. A release required by this rule does not void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and filed, together with the evidence of such probable cause, with the clerk of the court having jurisdiction of the offense for which the defendant is charged. (b) (1) A defendant who is not charged in an information or indictment within 21 days from the date of arrest or service of the capias on him shall have a right to an adversary preliminary hearing on any felony charge then pending against The subsequent filing of an information or indictment shall not eliminate a defendant's entitlement to this proceeding. (2) The magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state for the state or the defendant. (3) All witnesses shall be examined in the presence of the defendant and may be cross-examined. Either party may request that the witnesses be sequestered. At the conclusion of the testimony for the prosecution, the defendant so elects be sworn and testify in his own behalf, and in such cases shall be warned in advance of testifying that anything he may say can be used against him at a subsequent trial. may be cross-examined in the same manner as other witnesses, and any witnesses offered by shall be sworn and examined. (4) At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim stenographically or by mechanical means and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to defendant or counsel. (5) If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall cause the defendant to be held to answer to the circuit court; otherwise, the magistrate shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court. (c) If there has been a finding of no probable cause at a nonadversary determination or adversary preliminary hearing, or if the specified time periods for holding a nonadversary probable cause determination have not been complied with, a magistrate may thereafter make a determination of probable cause at a nonadversary probable cause determination, in which event the defendant shall be retained in custody or returned to custody upon appropriate process issued by the magistrate. A defendant who has been retained in custody or returned to custody by such a determination shall be allowed an adversary preliminary hearing in all instances in which a felony offense is charged. The ABA Standards on Pre-Trial Release provide for a person arrested to be taken before a committing magistrate without unreasonable delay for immediate judicial consideration of the release decision. The ommittee determined that, since a determination of probable cause at this immediate hearing presents difficult logistical problems for the tate and defense counsel, the question of probable cause should be decided at a later preliminary hearing. For this reason, (c), (d) and (e) of the former ule have been deleted in favor of the hearing provision now contained in ule 3.130. (a) A revised version of former ule 3.122(a). (b) New. Establishes the time period in which the preliminary hearing must take place. (c)(1) Substantially the same as former ule 3.122(b). Amended to provide for advice of counsel relative to waiver and for written waiver. (c)(2) Amended to delete provisions relating to recording of proceedings as same are now contained in (h). (d) Same as prior rule 3.122(g). (e) Same as prior rule 3.122(h). (f) Substantially the same as prior rule 3.122(i); language modernized by slight changes. (g) Same as prior rule 3.122(j). (h) New rule to provide for record of proceedings. (i) Same as prior rule 3.122(). (j) Substantially the same as prior rule 3.122(m). Time period for transmission of papers is reduced. (2) provides for transmission of any transcript of proceedings. The rule corrects several deficiencies in the prior rule: (1) In the prior rule no specific mechanism was provided to effect the release which is allowed. This revision provides such a mechanism and coordinates the mechanism with the additional procedures created by (c). (2) Once a determination of no probable cause was made and the defendant was released, no method was provided for reversing the process in those instances in which the determination is palpably in error or in instances in which it is later possible to establish probable cause. (3) The prior rule allowed the unconditioned release of a defendant without the possibility o recapture simply because of a technical failure to abide by the rather arbitrary time limits established for the conduct of a nonadversary probable cause determination and regardless of the ability to establish probable cause. The new rule allows a determination or redetermination of probable cause to be made in instances in which to do so is sensible. The defendant is protected by the provision allowing an adversary preliminary hearing as a check against any possible abuse. (a) (1) An offense may be punished by death shall be prosecuted by indictment. (2) The prosecution of all other criminal offenses shall be as follows: In circuit courts and county courts, prosecution shall be solely by indictment or information, except that prosecution in county courts for violations of municipal ordinances and metropolitan county ordinances may be by affidavit or docket entries and prosecutions for misdemeanors, municipal ordinances and county ordinances may be by otice to ppear issued and served pursuant to ule 3.125. A grand jury may indict for any offense. When a grand jury returns an indictment for an offense not triable in the circuit court, the circuit judge shall either issue a summons returnable in the county court or shall bail the accused for trial in the county court, and judge, or at direction, the clerk of the circuit court shall certify the indictment and file in the records of the county court. (b) The indictment or information on which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. (c) (1) No formal caption is essential to the validity of an indictment or information on which the defendant is to be tried. Upon objection made as to its absence a caption shall be prefixed in substantially the following manner: In the (name of ourt) State of Florida versus (name of defendant) Any defect, error or omission in a caption may be amended as of course, at any stage of the proceeding, whether before or after a plea to the merits, by court order. (2) All indictments or informations on which the defendant is to be tried shall expressly state that the prosecution is brought in the name and by the authority of the State of Florida. Indictments shall state that the defendant is charged by the grand jury of the county. Informations shall state that the appropriate prosecuting attorney makes the charge. (3) Every indictment or information on which the defendant is to be tried shall bear the date (day, month, year) that it is filed in each court in which it is so filed. (4) Every indictment or information shall include the defendant's race, gender, date of birth, and social security number when any of these facts are known. Failure to include these facts shall not invalidate an otherwise sufficient indictment (d) (1) Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation or other provision of law the defendant is alleged to have violated. Error in or omission of the citation shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to prejudice. (2) The name of the accused person shall be stated, if known, and if not known, may be described by any name or description by which can be identified with reasonable certainty. If the grand jury, prosecuting attorney or affiant making the charge does not know either the name of the accused or any name or description by which can be identified with reasonable certainty, the indictment or information as the case may be, shall so allege and the accused may be charged by a fictitious name. (3) Each count of an indictment or information on which the defendant is to be tried shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged in the act or transaction or on or more acts or transactions connected together, provided the court in which the indictment or information is filed has jurisdiction to try all of the offenses charged. (4) an intent to defraud is required as an element of the offense to be charged, it shall be sufficient to allege an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded. (e) Allegations made in count shall not be incorporated by reference in another count. (f) An indictment shall be signed by the fore or the acting fore of the grand jury returning it. The state attorney or acting state attorney or an assistant state attorney shall make and sign a statement on the indictment to the effect that he has advised the grand jury returning the indictment as authorized and required by law. No objection to the indictment on the ground that the statement has not been made shall be entertained after the defendant pleads to the merits. (g) An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits. (h) An indictment or information on which the defendant is to be tried need contain no formal conclusion. (i) An unnecessary allegation may be disregarded as surplusage and, on motion of the defendant, may be stricken from the pleading by the court. (j) An information on which the defendant is to be tried charges an offense may be amended on the motion of the prosecuting attorney or defendant at any time prior to trial because of formal defects. (k) Allegations concerning the following items may be alleged as indicated below: (1) Instruments consisting wholly or in part of writing or figures, pictures, or designs may be described by any term by which they are usually known or may be identified, without setting forth a copy or facsimile thereof. (2) Necessary averments relative to spoken or written words or pictures may be made by the general purport of such words or pictures without setting forth a copy or facsimile thereof. (3) A judgment, determination or proceeding of any court or official, civil or military, may be alleged generally in such a manner as to identify judgment, determination or proceeding, without alleging facts conferring jurisdiction on court or official. (4) Statutory exceptions, excuses or provisos relative to offenses created or defined by statute need not be negatived by allegation. (5) For an offense may be committed by doing or more of several acts, or by or more of several means, or with or more of several intents or results, it is permissible to allege in the disjunctive or alternative such acts, means, intents or results. (6) For an offense divided into degrees it is sufficient to charge the commission of the offense without specifying the degree. (7) It shall not be necessary to allege that the offense charged is a felony or was done feloniously. () Unless the defendant named therein has been previously released on a citation, order to appear, personal recognizance or bail, or has been summoned to appear, or unless otherwise ordered by the court having jurisdiction, all indictments or informations and the records thereof shall be in the custody of the clerk of the court to which they are presented and shall not be inspected by any person other than the judge, clerk, attorney general and prosecuting attorney until the defendant is in custody or until year has elapsed between the return of an indictment or the filing of an information, after which time they shall be opened for public inspection. (m) Each person who has been indicted or informed against for an offense shall, on application to the clerk, be furnished a copy of the indictment or information and the endorsements thereon, at least hours before required to plead to indictment or information if a copy has not been so furnished A failure to furnish copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment or information. (n) The court, on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable to prepare defense. statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant. () No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of defense or expose after conviction or acquittal to substantial danger of a new prosecution for the same offense. Substantially the same as prior rule. References to trial by affidavit have been deleted throughout this rule and all ules of Criminal Procedure because of the passage of the 1972 amendment to article V of the Florida Constitution. (a)(2) Amended to refer only to ircuit ourts and ounty ourts. Reference to trial of vehicular traffic offenses transferred to ule 3.010 and made applicable to all ules of riminal rocedure. Former rule (d)(4) and (d)(5) transferred to ew ule 3.150. Former rule (d)(6) renumbered as (d)(4). The purpose of the amendment is to provide the same method for prosecution of violations of metropolitan county ordinances as for violations of municipal ordinances. (a) Two or more offenses are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on or more connected acts or transactions. (b) Two or more defendants may be charged in the same indictment or information on which they are to be tried : (1) each defendant is charged with accountability for each offense charged; (2) each defendant is charged with conspiracy and some of the defendants are also charged with or more offenses alleged to have been committed in furtherance of the conspiracy; or (3) even if conspiracy is not charged and all defendants are not charged in each count, it is alleged that the several offenses charged were part of a common scheme or plan. Such defendants may be charged in or more counts together or separately, and all of the defendants need not be charged in each count. Provisions of former ule 3.150 are transferred to and incorporated in ule 3.130, Release. (a) Substantially the same as ormer ule 3.140(d)(4) except that it omits proviso that the court have jurisdiction to try all offenses charged. The proviso seems redundant. (b) Substantially the same as ABA Standard 1.2 but omits subparagraph (c)(2) which would permit joinder of charges "so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others." The ABA commentary on this tandard concedes that in such cases the chances are considerable that defendants would have a right to severance. Difficulty of separating proof is a good reason for denying a right to join charges. The ommittee is of the opinion that defendants not connected in the commission of an act and not connected by conspiracy or by common scheme or plan should not, under any circumstances, be joined. The uggested ule omits the provision of former ule 3.140(d)(4) permitting joinder of or more defendants in a single indictment or information, if they are alleged to have participated in the same series of acts or transactions constituting more than offense. If all defendants participated in a series of connected acts or transactions constituting or more offenses the offenses can be joined under ule 3.150(a). The last sentence of the uggested ule is the last sentence of former ule 3.140(d)(5). (a) For purposes of these ules, or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on or more connected acts or transactions. (b) Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation. (c) When a defendant has been tried on a charge of of or more related offenses, the charge of every other related offense shall be dismissed on the defendant's motion unless a motion by defendant for consolidation of charges has been previously denied, or unless defendant has waived right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging other offense or offenses. (d) A defendant may plead guilty or nolo contendere to a charge of offense on condition that other charges of related offenses be dismissed or that no charges of other related offenses be instituted. Should the court find that condition cannot be fulfilled, the plea shall be considered withdrawn. . (a) To same general effect as ABA Standard with changes to conform to ule 3.150(a) and 3.190(k). (b) Limits motion for consolidation to defendant and provides that defendant waives his right to consolidation by failing to file a timely motion. Under standards relating to joinder of offenses and defendants, the prosecution may avoid the necessity for consolidation by charging offenses and defendants in a single indictment or information where consolidation is permissible. Omits provision of ABA Standard authorizing denial of consolidation if prosecuting attorney does not have "sufficient evidence to warrant trying" of the "offenses" or if the court finds that the ends of justice would be defeated by consolidation. The lack of "sufficient evidence to warrant" trial of of several charges of "related offenses" would be quite rare. In the rare case there is such a lack of evidence the appropriate remedy would be a motion for continuance of all pending charges of related offenses, showing that the lack of evidence could probably be cured by a reasonable delay. The ommittee does not favor separate trials of charges of related offenses over the defendant's objection. (c) Florida has no similar rule. Omits exception in ABA Standard in case "the prosecuting attorney did not have sufficient evidence to warrant trying (the) offense" or upon a finding that "the ends of justice would be defeated if the motion was granted." See comment on (b). The rule is not intended to restrict defendant's substantive rights. (d) Florida has no similar rule. The first sentence of ABA Standard is considered by the ommittee to state a rule of substantive law and is omitted as unnecessary. The changes from the prior rule are intended to provide equal treatment for both the state and the defendant. (a) (1) In case or more offenses are improperly charged in a single indictment or information, the defendant shall have a right to a severance of the charges on timely motion (2) In case or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the tate or of a defendant before trial on a showing that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense or during trial, only with defendant's consent, on a showing that severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. (b) (1) On motion of the tate or a defendant, the court shall order a severance of defendants and separate trials: before trial, on a showing that order is necessary to protect a defendant's right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of or more defendants; or during trial, only with defendant's consent and on a showing that order is necessary to achieve a fair determination of the guilt or innocence of or more defendants. (2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a makes reference to him but is not admissible against him , the court shall determine whether the tate will offer evidence of the statement at the trial. If the tate intends to offer the statement in evidence, the court shall order the tate to submit its evidence of statement for consideration by the court and counsel for defendants and if the court determines that statement is not admissible against the moving defendant, it shall require the tate to elect of the following courses: a joint trial at which evidence of the statement will not be admitted; a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of evidence with deletions will not prejudice the moving defendant; or severance of the moving defendant. (3) In cases , at the close of the tate's case or at the close of all of the evidence, the evidence is not sufficient to support a finding that allegations on which the joinder of a defendant is based have been proved, the court shall, on motion of that defendant, grant a severance unless the court finds that severance is unnecessary to achieve a fair determination of that defendant's guilt or innocence. (a)(1) Severance on timely motion by defendant is mandatory multiple offenses are improperly joined. (a)(2) Provides for severance of offenses before trial on showing that severance will promote a fair determination of guilt or innocence substantially as provided by former rule 3.190(j)(2) and, unlike any Florida ule, distinguishes motion during trial. (b)(1) Based on ABA Standard 2.3(b). Expands ule 3.190(j) to include defendant's right to speedy trial as ground for severance and, unlike any Florida rule, distinguishes between motion before and motion during trial. (b)(2) Based on ABA Standard 2.3, (a) and (c). Requires court to determine whether the statement will be offered as distinguished from asking the tate its intention. Requires production of evidence of the statement in the event it will be offered so that the court and counsel can intelligently deal with the problem. Florida has no similar rule. (b)(3) Substantially the same as ABA Standard, except that the proposed ule requires severance unless the court affirmatively finds that severance is unnecessary. Florida has no similar rule. (a) A defendant's motion for severance of multiple offenses or defendants charged in a single indictment or information shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for such a motion, but the court in its discretion may entertain such a motion at the trial. The right to file such a motion is waived if it is not timely made. (b) If a defendant's motion for severance is overruled, may renew the motion on the same grounds at or before close of all the evidence at the trial. (a) Relates solely to defendant's motion for severance. Florida has no similar rule. (b) Florida has no similar rule. (a) The arraignment shall be conducted in open court or by audiovisual device in the discretion of the court and shall consist of the clerk or prosecuting attorney reading the indictment or information on which the defendant will be tried to the defendant or stating orally to the substances of the charge or charges and calling on to plead thereto. reading or statement as to the charge or charges may be waived by the defendant. If the defendant is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived. (b) Neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the indictment or information on which the defendant is to be tried or proceeds to trial without objection to such failure or irregularity. (c) If a person who has been indicted or informed against for an offense, but who has not been arraigned, desires to plead guilty thereto, may so inform the court having jurisdiction of the offense, and court shall, as soon as convenient, arraign the defendant and permit to plead guilty to the indictment or information. (d) After a plea of not guilty the defendant is entitled to a reasonable time in which to prepare for trial. (e) Prior to arraignment of any person charged with the commission of a crime, if he is not represented by counsel, the court shall advise of right to counsel and if he is financially unable to obtain counsel, of right to be assigned court-appointed counsel to represent him at arraignment and at all subsequent proceedings shall execute an affidavit that he is unable financially or otherwise to obtain counsel and if the court shall determine reason to be true, the court shall appoint counsel to represent If the defendant, however, understandingly waives representation by counsel, he shall execute a written waiver of such representation which shall be filed in the case. If counsel appointed, a reasonable time shall be accorded to counsel before the defendant shall be required to plead to the indictment or information on which he is to be arraigned or tried, or otherwise to proceed further. Substantially the same as prior ule. The ommittee considered changes recommended by The Florida Bar and incorporated the proposed change relating to written plea of not guilty and waiver of arraignment. (a) A defendant may plead not guilty, guilty, or, with the consent of the ourt, nolo contendere. Except as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to charge at first appearance under ule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed. A plea of not guilty may be entered in writing by counsel. Every plea shall be entered of record but a failure to enter it shall not affect the validity of any proceeding in the cause. (b) Having entered a plea in accord with this rule, the defendant may, with the court's permission, enter a plea of guilty or nolo contendere to any and all charges pending against him in the State of Florida over which the court would have jurisdiction and, when authorized by law, to charges pending in a court of lesser jurisdiction, if the prosecutor in the other case or cases gives written consent thereto. The court accepting such a plea shall make a disposition of all such charges by judgment, sentence or otherwise. The record of plea and its disposition shall be filed in the court of original jurisdiction of the offense. If a defendant secures permission to plead to other pending charges and does so plead, the entry of such a plea shall constitute a waiver by the defendant of venue and all nonjurisdictional defects relating to such charges. (c) If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered. (d) If the defendant is a corporation and fails to appear, a plea of not guilty shall be entered of record. (e) A plea of not guilty is a denial of every material allegation in the indictment or information on which the defendant is to be tried. (f) The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereo set aside judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn plea may not be used against in a trial of that cause. (g) The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged is included in the offense charged in the indictment or information or to any lesser degree of the offense charged. (h) When an indictment or information charges an offense that is divided into degrees without specifying the degree, if the defendant pleads guilty, generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty. (i) No defendant, whether represented by counsel or otherwise, shall be called on to plead unless and until he has had a reasonable time within which to deliberate thereon. (j) No plea of guilty or nolo contendere shall be accepted by a court without first determining, in open court, with means of recording the proceedings stenographically or mechanicall that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty. A complete record of the proceedings at which a defendant pleads shall be kept by the court. This general topic is found in ABA Standard relating to pleas of guilty. The Standards are divided into parts: receiving and acting upon a plea; withdrawal of the plea; and plea discussions and plea agreements. The first and second parts are considered under this rule. (a) Same as first part of existing rule; substance of second sentence of existing rule transferred to new subj; new provision permits, with court approval, plea of not guilty to be made in writing. (b) From ABA Standard 1.2; the purpose of this rule is to permit a defendant to plead guilty or nolo contendere to all cases pending against , thus avoiding multiple judicial and prosecutorial labors. New concept of permitting this procedure even though the other cases are pending in other counties is taken from Federal Rule 20 which has successfully met the purpose explained above. (c) Same as prior rule. (d) Same as prior rule. (e) Same as prior rule. (f) Last sentence added from ABA Standard 2.2. (g) Same as prior rule. (h) Same as prior rule. (i) This should be done in accord with 89 S.Ct. 1709, 23 L.Ed.2d 274 , and . This should also include advising a defendant so pleading of the possibility of an action or charge against him as a multiple felon if the circumstances so warrant. (j) From first sentence of present ule 3.170(a) with addition of requirement of determination of factual basis for a plea of guilty as provided by last sentence of ederal ule . While requiring the presence of a court reporter, the proposed rule does not require that the reporter transcribe and file a transcript of the proceedings on a plea of guilty or nolo contendere, although the committee considers that such a requirement by the trial judge is desirable. The purpose of this amendment is to provide a method whereby a defendant may plead guilty to a misdemeanor at first appearance without the necessity of the state attorney subsequently filing an information. (a) Ultimate responsibility for sentence determination rests with the trial judge. However, the prosecuting attorney, the defense attorney, or the defendant, when representing himself are encouraged to discuss and to agree on pleas may be entered by a defendant. discussion and agreement must be conducted with the defendant's counsel. If the defendant represents himself all discussions between and the prosecuting attorney shall be of record. (b) (1) A prosecuting attorney may: ngage in discussions with defense counsel or a defendant who is without counsel with a view toward reaching an agreement that upon the defendant's entering a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecuting attorney will do any of the following: bandon other charges; or ake a recommendation, or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the trial judge; or gree to a specific sentence onsult with the victim, investigating officer or other interested persons and advise the trial judge of their views during the course of plea discussions. (2) The prosecuting attorney shall: pprise the trial judge of all material facts known to regarding the offense and the defendant's background prior to acceptance of a plea by the trial judge; and aintain the record of direct discussions with a defendant who represents himself and make record available to the trial judge upon the entry of plea arising from these discussions. (c) (1) Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without client's full and complete consent thereto, being certain that any decision to plead guilty or nolo contendere is made by the defendant. (2) Defense counsel shall advise defendant of: ll plea offers; and ll pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea, the likely results thereof as well as any possible alternatives may be open to (d) After an agreement on a plea has been reached, the trial judge may have made known to him the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, shall advise the parties whether other factors (unknown at the time) may make his concurrence impossible. New in Florida. Most criminal cases are disposed of by pleas of guilty arrived at by negotiations between prosecutor and defense counsel but there was no record of the "plea negotiations," "plea bargaining," or "compromise." The result has been a flood of postconviction claims which require evidentiary hearings and frequently conflicting testimony concerning the plea negotiations. There has also been criticism of the practice of requiring a defendant, upon a negotiated guilty plea, to give a negative reply to the court's inquiry concerning any "promise" made to . This is designed to avoid the foregoing pitfalls and criticisms by having the negotiations made of record and permitting some control of them. See Commentary to Standard 3.1 ABA Standards relating to leas of uilty. (a) From Standard 3.1a. (b) From Standard 3.2. (c) From Standard 3.3 except for omission of that part of standard which prohibits trial judge from participating in plea discussions. (d) From Standard 3.4. This is a rewording of the prior rule in order to set out the responsibilities of the participants. The rule recognizes the ultimate responsibility of the trial judge, but it encourages prosecution and defense counsel to assist the trial judge in this regard. the circumstances of the case so merit, it is the responsibility of each respective party to discuss a fair disposition in lieu of trial. For protection of the prosecutor and the defendant, plea discussions between the state and pro se defendant should be recorded, in writing or electronically. (b) New in Florida. (1)(i) Restatement of policy followed by extensive revision in the form of Rule 11(e)(1), . (1)(ii) The rule sets out discretionary minimum professional prosecutorial procedure where either victim or law enforcement officers are involved to guide the trial judge. (2)(i) Mandatory responsibility of prosecutor contemplates disposition with no investigation. (2)(ii) Mandatory record protects both the prosecutor and the pro se defendant. (c)(1) Renumbering (b) of prior rule. (2)(i) New in Florida. This proposed language makes it mandatory for defense counsel to advise fully defendant of all plea offers by the state. Defense counsel should also discuss and explain to the defendant those matters which trial judge will inquire about before accepting a plea. (2)(ii) Same as prior ule 3.171(b) paragraph 2. (d) Now embraces and renumbers former ule 3.171(c). The content of former ule 3.171(d) now appears as part of new ule 3.172. (a) Before accepting a plea of guilty or nolo contendere the trial judge shall that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function. (b) All pleas shall be taken in open court, except that good cause is shown a plea may be taken in camera. (c) Except a defendant is not present for a plea, pursuant to the provisions of ule 3.180(c), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands : he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; f the defendant is not represented by an attorney, that has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him ; hat has the right to plead not guilty or to persist in that plea if it has already been made, and that has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to compel attendance of witnesses on his behalf, the right to confront and cross-examine witnesses against him and the right not to be compelled to incriminate himself hat if pleads guilty, or nolo contendere without express reservation of right to appeal, he gives up right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does not impair right to review by appropriate collateral attack hat if pleads guilty or is adjudged guilty after a plea of nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; hat if pleads guilty or nolo contendere, the trial judge may ask questions about the offense to which he has pleaded, and if answers these questions under oath, on the record, and in the presence of counsel, answers may later be used against him in a prosecution for perjury; he complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result hat if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases. (d) Before the trial judge accepts a guilty or nolo contendere plea, must determine that the defendant either 1) acknowledges his guilt or 2) acknowledges that he feels the plea to be in his best interest, while maintaining his innocence. (e) The proceedings at which a defendant pleads guilty or nolo contendere shall be of record. (f) No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this ule. Until that time, it may be withdrawn by either party without any necessary justification. (g) the trial judge not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn. (h) Except as otherwise provided in this ule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. (i) Failure to follow any of the procedures in this ule shall not render a plea void absent a showing of prejudice. New in Florida. In view of upreme ourt's emphasis on the importance of this procedure as set forth in (Fla. 1975), ommittee felt it appropriate to expand the language of former ule 3.170(j) (deleted) and establish a separate rule. Incorporates Federal Rule 11(c) and allows for pleas of convenience as provided in , 27 L.Ed.2d 162 . (a), (b) Mandatory record of voluntariness and factual predicate is proper responsibility of counsel as well as the court. (iv) This waiver of right to appeal is a change from the proposed amendments to the ules of riminal rocedure now pending. A sentence if lawful is not subject to appellate review; a judgment, however, is. The ommittee was of the opinion that the proposed rule should be expanded to include a waiver of appeal from the judgment as well as the sentence. Waivers of appeal have been approved United States x el. Amuso v. LaValle, , aff'd ( 1970); People v. Williams, , , ( 1975). (vii) Requires the court to explain the plea agreement to the defendant including conditions subsequent such as conditions of probation. (e) Provides a readily available record (either oral or by use of standard forms) in all cases where a felony is charged. (h) Rewording of ule 11 ()(6) . (a) In all prosecutions for crime the defendant shall be present: (1) t first appearance; (2) hen a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of ule 3.170(a); (3) t any conference unless waived by efendant in writing; (4) t the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury; (5) t all proceedings before the court when the jury is present; (6) hen evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury; (7) t any view by the jury; (8) t the rendition of the verdict; (9) t the pronouncement of judgment and the imposition of sentence. (b) If the defendant is present at the beginning of the trial and thereafter, during the progress of trial or before the verdict of the jury been returned into court, voluntarily absent himself from the presence of the court without leave of court, or is removed from the presence of the court because of his disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times. (c) Persons prosecuted for misdemeanors may, at their own request, by leave of court, be excused from attendance at any or all of the proceedings aforesaid. (d) A corporation may appear by counsel at all times and for all purposes. Same as prior ule except (3) added to conform to ule 3.220(k); other renumbered. (a) Every motion and pleading in response to a motion shall be in writing and signed by the party making the motion or the attorney for the party. This requirement may be waived by the court for good cause shown. Each motion or other pleading shall state the ground or grounds on which it is based. A copy shall be served on the adverse party' . A certificate of service must accompany the filing of any pleading. (b) All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense. (c) Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for motion to dismiss is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds: (1) The defendant is charged with an offense for which has been pardoned (2) The defendant is charged with an offense of which has previously been placed in jeopardy (3) The defendant is charged with an offense for which has previously been granted immunity (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which such motion is based should be specifically alleged and the motion sworn to. (d) The tate may traverse or demur to a motion to dismiss alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the tate in traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under (c)(4) of this rule shall be denied if the tate files a traverse with specificity denies under oath the material fact or facts alleged in the motion to dismiss. demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss. (e) If the motion to dismiss is sustained the court may order that the defendant be held in custody or admitted to bail for a reasonable specified time pending the filing of a new indictment or information. If a new indictment or information is not filed within the time specified in the order, or within such additional time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless some other charge justifies a continuation in custody. If has been released on bail and sureties shall be exonerated; if money or bonds have been deposited as bail such money or bonds shall be refunded. (f) For the purpose of construing ection (1), Florida Statutes (1969), the statutory term "order quashing" shall be taken and held to mean "order dismissing." (g) (1) A continuance within the meaning of this rule is the postponement of a cause for any period of time. (2) The court on motion of the tate or a defendant or on its own motion may in its discretion for good cause shown grant a continuance. (3) A motion for continuance may be made only before or at the time the case is set for trial, unless good cause for failure to so apply is shown or the ground for the motion arose after the cause was set for trial. (4) A motion for continuance shall be accompanied by a certificate of the movant's counsel that the motion is made in good faith. (5) The party applying for a continuance may file affidavits in support of motion, and the adverse party may file counter-affidavits in opposition to the motion. (h) (1) A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because: he property was illegally seized without a warrant he warrant is insufficient on its face he property seized is not that described in the warrant here was no probable cause for believing the existence of the grounds on which the warrant was issued or he warrant was illegally executed. (2) Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based. (3) Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the defendant shall present evidence supporting position and the tate may offer rebuttal evidence. (4) The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial. (i) (1) motion of the defendant or on its own motion, the court shall suppress any confession or admission obtained illegally from the defendant. (2) The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. (3) The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion. (j) (1) After an indictment or information on which a defendant is to be tried is filed, the defendant or the tate may apply for an order to perpetuate testimony. The application shall be verified or supported by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that testimony is material and that it is necessary to take deposition to prevent a failure of justice. The court shall order a commission to be issued to take the deposition of the witnesses to be used in the trial and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If the application is made within days before the trial date, the court may deny the application. (2) If the defendant or the tate desires to perpetuate the testimony of a witness living in or out of the tate whose testimony is material and necessary to the case, the same proceedings shall be followed as provided in the preceding subdivision, but the testimony of the witness may be taken before an official court reporter, transcribed by and filed in the trial court. (3) If the deposition is taken on the application of the tate, the defendant and attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep in the presence of the witness during the examination. A defendant not in custody may be present at the examination, but failure to appear after notice and tender of expenses shall constitute a waiver of the right to be present. The tate shall pay to the defendant's attorney and to a defendant not in custody the expenses of travel and subsistence for attendance at the examination. The tate shall make available to the defendant for examination and use at the deposition any statement of the witness being deposed that is in the possession of the tate and that the tate would be required to make available to the defendant if the witness were testifying at trial. (4) The application and order to issue the commission may be made either in term time or in vacation. The commission shall be issued at a time to be fixed by the court. (5) Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution and return of the commission and the opening of the depositions in civil actions shall apply in criminal cases. (6) No deposition shall be used or read in evidence when the attendance of the witnesses can be procured. If the court that any person whose deposition has been taken procurement, inducement or threats of any person on behalf of the tate or of the defendant or of any person on behalf, the deposition shall not be read in evidence on behalf of the defendant. . Subdivision (h) is amended to require the defendant to specify the factual basis behind the grounds for a motion to suppress evidence. Subdivision () is amended to permit the tate to take depositions under the same conditions that the defendant can take them. Former (j) and (k) transferred to ules 3.150, 3.151 and 3.152. () and (m) renumbered (j) and (k) respectively. Otherwise, same as prior rule. This amendment resolves any ambiguity in the rule as to whether the tate must file a general or a specific traverse to defeat a motion to dismiss filed under the authority of ule 3.190(c)(4). See State v. Kemp, (Fla. 3d DCA 1974). The amendment clearly now requires a specific traverse to specific material fact or facts. (a) Except as otherwise provided by this ule, and subject to the limitations imposed under every person charged with a crime by indictment or information shall be brought to trial within 90 days if the crime charged a misdemeanor or within 175 days if the crime charged is a felony. If trial is not commenced within these time periods, the defendant shall be entitled to the appropriate remedy as set forth in . The time periods established by this shall commence when person is taken into custody as defined under . A person charged with a crime is entitled to the benefits of this rule whether person is in custody in a jail or correctional institution of this tate or a political subdivision thereof or is at liberty on bail or recognizance or other pretrial release condition. This shall cease to apply whenever a person files a valid demand for speedy trial under . Except as otherwise provided by this ule and subject to the limitations imposed under and , every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court having jurisdiction and serving on the state attorney a emand for peedy rial. (1) No later than 5 days from the filing of a emand for peedy rial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing, in open court, receipt of the emand and of setting the case for trial. (2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call. (3) The failure of the court to hold such a calendar call on a emand has been properly filed and served shall not interrupt the running of any time periods under this . (4) the defendant not been brought to trial within 50 days of the filing of the emand, the defendant shall have the right to the appropriate remedy as set forth in . A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge. For purposes of this ule, a person is taken into custody when the person is arrested as a result of the conduct or criminal episode gave rise to the crime charged, or when the person is served with a notice to appear in lieu of physical arrest. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this tate or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this tate, is not entitled to the benefit of this ule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served on the prosecutor. For such persons, the time period under (a) commences on the date the last act required under this occurs. For such persons the time period under commences when the demand is filed so long as the acts required under this occur prior to the filing of the demand. If the acts required under this do not precede the filing of the demand, then the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing hereinabove stated shall affect a prisoner's right to speedy trial under sections -, Florida Statutes (1979). a felony and misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony. A demand for speedy trial binds the accused and the tate. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading the accused is available for trial, has diligently investigated case, and is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated case or who is not timely prepared for trial shall be stricken as invalid on motion of the prosecuting attorney. A demand may not be withdrawn by the accused, except on order of the court, with consent of the tate or on good cause shown. Good cause for continuances or delay on behalf of the accused shall not thereafter include nonreadiness for trial, except as to matters may arise after the demand for trial is filed and could not reasonably have been anticipated by the accused or his counsel. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this ule. A shall be timely if filed and served on or after the expiration of the periods of time for trial provided for herein; however, a filed before expiration of the period of time for trial is invalid and shall be stricken on motion of the prosecuting attorney. The periods of time established by this ule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. Such an extension may be procured: upon stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced by written or recorded order of the court on the court's own motion or motion by either party in exceptional circumstances as hereafter defined in (f) by written or recorded order of the court with good cause shown by the accused or by written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on motions, for appeals by the tate, and for trial of other pending criminal charges against the accused. If trial of the accused does not commence within the periods of time established by this ule, a pending motion for discharge shall be granted by the court unless it is shown that a time extension has been ordered under and that extension has not expired the failure to hold trial is attributable to the accused, a in the same trial, or their counsel the accused was unavailable for trial under or the demand referred to in is invalid. If the court finds that discharge is not appropriate for reasons under , , or , the pending motion for discharge shall be denied provided however, trial shall be scheduled and commence within 90 days of a written or recorded order of denial. A person is unavailable for trial if the person or counsel fails to attend a proceeding where presence is required by these ules, or the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of attaches, but if the tate objects to discharge and presents any evidence tending to show , the accused then must by competent proof establish availability during the term. As permitted by of this ule, the court may order an extension of the time periods provided under this ule exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those as a matter of substantial justice to the accused or the tate or both require an order by the court Such circumstances include (1) unexpected illness unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) a showing by the tate that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this ule; (3) a showing by the tate that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) a showing by the accused or the tate of necessity for delay grounded on developments could not have been anticipated and will materially affect the trial; (5) a showing that a delay is necessary to accommodate a , there is reason not to sever the cases in order to proceed promptly with trial of the defendant; (6) a showing by the tate that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise. A person who is to be tried again or whose trial has been delayed by an appeal by the tate or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in . Discharge from a crime under this ule shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. The intent and effect of this ule shall not be avoided by the tate by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi. (1) No remedy shall be granted to any defendant under this ule until the court made the required inquiry under . (2) The defendant may, at any time after the expiration of the prescribed time period, file a (3) No later than 5 days from the date of the filing of a , the court shall hold a hearing on the and unless the court finds that one of the reasons set forth in exists, shall order that the defendant be brought to trial within 10 days. defendant not brought to trial within the 10day period through no fault of the defendant, shall be forever discharged from the crime. . Same as prior rule. The schedule is omitted as being unnecessary. An appeal by the tate from an order dismissing the case constitutes an interlocutory appeal and should be treated as such. The additional phrase removes any ambiguities in the existing rule. (a)(1). Speedy Trial ithout Demand. 1. Prisoners in Florida institutions are now treated like any other defendant [formerly (b)(1)]. 2. Federal prisoners and prisoners outside Florida may claim the benefit of this once special prerequisites are satisfied under (b)(1). 3. Before a court can discharge a defendant, the court must make complete inquiry to ensure that discharge is appropriate. (a)(2). Speedy Trial pon Demand. 1. Trial cannot be scheduled within 5 days of the filing of the demand without the consent of both the tate and the defendant. 2. Before a court can discharge a defendant, the court must make complete inquiry to ensure that discharge is appropriate. 3. Prisoners in Florida are now treated like any other defendant [formerly (b)(2)]. 4. Federal prisoners and prisoners outside Florida may claim the benefit of this once special prerequisites are satisfied under (b)(1). (a)(3). Commencement of Trial. 1. Minor change in language to reflect case law. (a)(4). Custody. [NEW] 1. Custody is defined in terms tantamount to arrest. This definition was formerly contained in (a)(1). 2. Where a notice to appear is served in lieu of arrest, custody results on the date the notice is served. (b)(1). Prisoners utside Jurisdiction. [NEW] 1. Prisoners outside the jurisdiction of Florida may claim benefit under (a)(1) and (a)(2) after the prisoner returns to the jurisdiction of the court where the charge is pending and after the prisoner files and serves a notice of this fact. 2. As an alternative, certain prisoners may claim the benefit of sections -, Florida Statutes (1979). 3. Former (b)(1) is repealed. (b)(2). [NEW] 1. Where a misdemeanor and felony are consolidated for purposes of trial in circuit court, the misdemeanor is governed by the same time period applicable to the felony. To claim benefit under this provision, the crimes must be consolidated before the normal time period applicable to misdemeanors has expired. 2. Former (b)(2) is repealed. (b)(3). Repealed and superseded by (b)(1). (c). Demand for Speedy Trial. 1. The recognizes that an invalid (spurious) demand must be stricken. 2. The now puts a 5day limit on the time when a defendant must be prepared. (d)(1). Motion for Discharge. 1. Under the amended provision, a prematurely filed motion is invalid and may be stricken. (d)(2). When Time May e Extended. 1. The terms waiver,tolling or suspension have no meaning within the context of the as amended. The addresses extensions for a specified period of time. 2. Except for stipulations, all extensions require an order of the court. 3. The term "recorded order" refers to stenographic recording and not recording of a written order by the clerk. (d)(3). Delay and Continuances. 1. Even though the normal time limit has expired under (a)(1) or (a)(2) a trial court may not properly discharge a defendant without making a complete inquiry of possible reasons to deny discharge. If the court finds that the time period has been properly extended and the extension has not expired, must simply deny the motion. If the court finds that the delay is attributable to the accused, that the accused was unavailable for trial or that the demand was invalid, the court must deny the motion and schedule trial within 90 days. If the court has before it a valid motion for discharge and none of the above circumstances are present, the court must grant the motion. (e). Availability for Trial. 1. Availability for trial is now defined solely in terms of required attendance and readiness for trial. (f). Exceptional Circumstances. 1. The extension limit for unavailable evidence has been discarded. 2. The new trial date paragraph was eliminated because it simply was unnecessary. (g). Effect of Mistrial; Appeal; Order of New Trial. 1. Makes uniform a 90-day period within which a defendant must be brought to trial after a istrial, rder of ew rial, or ppeal by the tate or defendant. (h)(1). Discharge from Crime. 1. No change. (h)(2). Nolle Prosequi. 1. No change. (a)(1). Repeals the remedy of automatic discharge from the crime and refers instead to the new on remedies. (a)(2). Establishes the calendar call for the emand for peedy rial when filed. This provision, especially sought by prosecutors, brings the matter to the attention of both the court and the prosecution. The again repeals the automatic discharge for failure to meet the mandated time limit, referring to the new on remedies for the appropriate remedy. (i). The intent of (i)(4) is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge. This time begins with the filing of the motion and continues regardless of whether the judge hears the motion. This provides that, upon failure of the prosecution to meet the mandated time periods, the defendant shall file a motion for discharge, which will then be heard by the court within 5 days. The court sets trial of the defendant within 10 additional days. The total 15day period was chosen carefully by the committee, the consensus being that the period was long enough that the system could, in fact, bring to trial a defendant not yet tried, but short enough that the pressure to try defendants within the prescribed time period would remain. In other words, it gives the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints. It was felt that a period of 10 days was too short, giving the system insufficient time in which to bring a defendant to trial; the period of 30 days was too long, removing incentive to maintain strict docket control in order to remain within the prescribed time periods. The committee further felt that it was not appropriate to extend the new remedy provisions to misdemeanors, but only to more serious offenses. n the written demand of the prosecuting attorney, specifying as particularly as is known to prosecuting attorney the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in defense shall, not less than days before trial or such other time as the court may direct, file and serve on prosecuting attorney a notice in writing of intention to claim alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to defendant or attorney, the names and addresses of the witnesses by whom proposes to establish alibi. Not more than days after receipt of defendant's witness list, or other times as the court may direct, the prosecuting attorney shall file and serve on the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the tate proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of notice as herein required, the court may exclude evidence offered by defendant for the purpose of providing an alibi, except the testimony . If notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of witness as particularly as is known to defendant or attorney is not stated in notice. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the tate in rebuttal to the defendant's alibi evidence. If notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of witness as particularly as is known to the prosecuting attorney is not stated in notice. For good cause shown the court may waive the requirements of this rule. Same as prior rule. (a) A person accused of an offense or a violation of probation or community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent. (1) A "material stage of a criminal proceeding" shall include the trial of the case, hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or violation of community control proceedings, sentencing, hearings on issues regarding a defendant's failure to comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered. The terms "competent" "competence" "incompetent" and "incompetence" as used in rules 3.210-3.219, shall refer to mental competence or incompetence to proceed at a material stage of a criminal proceeding. (2) The incompetence of the defendant shall not preclude such judicial action, hearings on motions of the parties, discovery proceedings, or other procedures do not require the personal participation of the defendant. (b) If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the tate, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than , nor fewer than , experts prior to the date of hearing. Attorneys for the tate and the defendant may be present at the examination. (1) A written motion for examination made by counsel for the defendant shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is incompetent to proceed. To the extent that it does not invade the lawyer-client privilege, the motion shall contain a recital of the specific observations of and conversations with the defendant have formed the basis for motion. (2) A written motion for examination made by counsel for the tate shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe the defendant is incompetent to proceed and shall include a recital of the specific facts have formed the basis for motion, including a recitation of the observations of and statements of the defendant have caused the tate to file motion. (3) If the defendant has been released on bail or other release provision, the court may order the defendant to appear at a designated place for evaluation at a specific time as a condition of such release. If the court determines that the defendant will not submit to the evaluation or that the defendant is not likely to appear for the scheduled evaluation, the court may order the defendant taken into custody until the determination of competency to proceed. A motion made for evaluation under this shall not otherwise affect the defendant's right to release. (4) The order appointing experts shall: dentify the purpose or purposes of the evaluation, including the nature of the material proceeding, and specify the area or areas of inquiry should be addressed by the evaluator; pecify the legal criteria to be applied; and pecify the date by which the report should be submitted and to whom the report should be submitted. (a) This provision is identical that which has been contained in all prior rules and statutes relating to competence to stand trial. No change is suggested. (b) In order to ensure that the proceedings move quickly the court is required to set a hearing within 20 days. This should be read in conjunction with ule 3.211 which requires the experts to submit their report to the court at such time as the court shall specify. The court therefore determines the time on which the report is to be submitted. The provision requiring at least but no more than experts is meant to coincide with ection 394.02, Florida Statutes (1979) in which the egislature provides for the number of experts to be appointed and that at least of such experts be appointed from a group of certain designated state-related professionals. This legislative restriction on appointment will ensure that the Department of Health and Rehabilitative Services will, to some extent, be involved in the hospitalization decision-making process. Other possible procedures were discussed at great length both among members of the committee and with representatives of the egislature, but it was decided that any more specific procedures should be developed on the local level in the individual circuits and that it would be inappropriate to mandate such specific procedures in a court rule. Since it was felt by the committee to be a critical stage in the proceedings and subject to Sixth Amendment provisions, and since no psychiatrist-patient privilege applies to this stage of the proceeding, the committee felt that attorneys for both sides should have the right to be present at such examinations. (1) and (2) A motion for examination relative to competency to stand trial should not be a "boiler plate" motion filed in every case. The inclusion of specific facts in the motion will give the trial judge a basis on which to determine whether there is sufficient indication of incompetence to stand trial that experts to examine the defendant. Provision was made that conversations and observations need not be disclosed if they were felt to violate the lawyer-client privilege. Observations of the defendant were included in this phrase in that may, in some cases, be considered "verbal acts" (3) The mere filing of a motion for examination to determine competence to stand trial should not affect in any way the provision for release of a defendant on bail or other release provision. If a defendant has been released on bail, the judgment already having been made that he is so entitled, and as long as the defendant will continue to appear for appropriate evaluations, the mere fact that motion was filed should not abrogate right to bail. Obviously, if other factors would affect the defendant's right to release or would affect right to release on specific release conditions, those conditions could be changed or release revoked. By making the requirement that the defendant appear for evaluation a condition of release, the court can more easily take back into custody a defendant who has refused to appear for evaluation, and the defendant can then be evaluated in custody. Title. The title is amended to reflect change in sub (a)(1) which broadens the issue of competency in criminal proceedings from the narrow issue of competency to stand trial to competency to proceed at any material stage of a criminal proceeding. (a) This provision is broadened to prohibit proceeding against a defendant accused of a criminal offense or a violation of probation or community control and is broadened from competency to stand trial to competency to proceed at any material stage of a criminal proceeding as defined in sub (1) . (1) This new provision defines a material stage of a criminal proceeding when an incompetent defendant may not be proceeded against. This provision includes competence to be sentenced which was previously addressed in ule 3.740 and is now addressed with more specificity in the new 3.214. Under the Florida Supreme Court decision of Jackson v. State, (Fla. 1984), this definition would not apply to a motion under ule 3.850. (2) This new provision allows certain matters in a criminal case to proceed, even if a defendant is determined to be incompetent, in areas not requiring the personal participation of the defendant. (b) This provision is amended to reflect the changes in sub (a) above. (1) Same as above. (2) Same as above. (3) Same as above. This provision also changes the phrase " released from custody on a pre-trial release provision to "released on bail or other release provision because the term "custody" is subject to several interpretations. (4) This new provision is designed to specify and clarify in the order appointing experts, the matters the appointed experts are to address, and to specify when and to whom their reports are to be submitted. Court-appointed experts often do not understand the specific purpose of their examination or the specifics of the legal criteria to be applied. Specifying to whom the experts' reports are to be submitted is designed to avoid confusion. In 1985, the Florida Legislature enacted amendments to art of hapter 394, the "Florida Mental Health Act," and substantial amendments to hapter 916 entitled "Mentally Deficient and Mentally Ill Defendants." The effect of the amendments is to avoid tying mentally ill or deficient defendants in the criminal justice system to civil commitment procedures in the "Baker Act." Reference to commitment of a criminal defendant found not guilty by reason of insanity has been removed from ection , Florida Statutes. Chapter 916 now provides for specific commitment criteria of mentally ill or mentally retarded criminal defendants who are either incompetent to proceed or who have been found not guilty by reason of insanity in criminal proceedings. In part, the following amendments to ules 3.210 to 3.219 are designed to reflect the 1985 amendments to hapters 394 and 916. Florida judges on the criminal bench are committing and mental health treatment facilities are admitting and treating those mentally ill and mentally retarded defendants in the criminal justice system who have been adjudged incompetent to stand trial and defendants found to be incompetent to proceed with violation of probation and community control proceedings. Judges are also finding such defendants not guilty by reason of insanity and committing them to HRS for treatment yet there were no provisions for such commitments in the rules. Some of the amendments to ules 3.210 to 3.219 are designed to provide for determinations of whether a defendant is mentally competent to proceed in any material stage of a criminal proceeding and provide for community treatment or commitment to when a defendant meets commitment criteria under the provisions of hapter 916 as amended in 1985. (a) Upon appointment by the court, the experts shall examine the defendant with respect to the issue of compentenc to proceed, as specified by the court in its order appointing the experts to evaluate the defendant, and shall evaluate the defendant as ordered. (1) The experts shall first consider factors related to the issue of whether the defendant meets the criteria for competence to proceed that is, whether the defendant has sufficient present ability to consult with with a reasonable degree of rational understanding and whether has a rational, as well as factual, understanding of the proceedings (2) In considering the issue of competence to proceed, the examining experts shall consider and include in their report : he defendant's capacity to: (i) ppreciate the charges or allegations against ; (ii) ppreciate the range and nature of possible penalties, if applicable, may be imposed in the proceedings against ; (iii) nderstand the adversary nature of the legal process; (iv) isclose to facts pertinent to the proceedings at issue; (v) anifest appropriate courtroom behavior; (vi) estify relevantly (b) If the experts should find that the defendant is incompetent to proceed, the experts shall report on any recommended treatment for the defendant to attain competence to proceed. In considering the issues relating to treatment, the examining experts shall report on : he mental illness or mental retardation causing the incompetence; he treatment or treatments appropriate for the mental illness or mental retardation of the defendant and an explanation of each of the possible treatment alternatives in order of choices; he availability of acceptable treatment. If treatment is available in the community, the expert shall so state in the report; he likelihood of the defendant attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future. (c) If a notice of intent to rely on the defense of insanity has been filed prior to trial or a hearing on a violation of probation or community control, and when so ordered by the court, the experts shall report on the issue of the defendant's sanity at the time of the offense. (d) Any written report submitted by the experts shall : (1) identify the specific matters referred for evaluation (2) describe the evaluative procedures, techniques and tests used in the examination and the purpose or purposes for each (3) state the expert's clinical observations, findings and opinions on each issue referred for evaluation by the court, and indicate specifically those issues, if any, on which the expert could not give an opinion (4) identify the sources of information used by the expert and present the factual basis for the expert's clinical findings and opinions. (e) The information contained in any motion by the defendant for determination of competency to proceed or in any report of experts filed under this insofar as report relates solely to the issues of competency to proceed and commitment and any information elicited during a hearing on competency to proceed or commitment held pursuant to this ule, shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant. The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other purpose, in which case disclosure and use of the report, or any portion thereof, shall be governed by applicable rules of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the tate may request the production of any other portion of that report , in fairness, ought to be considered. This ule provides for appointment of experts and for the contents of the report which the experts are to render. Since the issue of competency has been raised, the experts will, of course, report on this issue. If there is reason to believe that involuntary hospitalization is also required, the court should order the experts to make this evaluation as well during their initial examination. It was felt, however, that the experts should not inquire into involuntary hospitalization as a matter of course, but only if sufficient reasonable grounds to do so were alleged in the motion, comparing the procedure to that required by the civil commitment process. (a) Certain factors relating to competency to stand trial have been determined to be appropriate for analysis by examining experts. Often, with different experts involved, the experts do not use the same criteria in reaching their conclusions. The criteria used by experts who testify at the competency and commitment hearings may not be the same as those used by persons involved in the treatment process or later hearings after treatment. This , therefore, addresses those factors which, at least, should be considered by experts at both ends of the spectrum. Additional factors may be considered, and these factors listed may be addressed in different ways. At least the requirement that these specific factors be addressed will give a common basis of understanding for the experts at the competency hearing, the trial judge, and the experts who will later receive a defendant who is found to be incompetent to stand trial and in need of involuntary hospitalization. The test for determining competency to stand trial is that which has been contained in both the prior rules and statutes developed from Dusky v. United States, , 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). (1) The factors set forth in this section have been developed by the Department of Health and Rehabilitative Services in Competency Evaluation Instrument, a refinement of the McGarry Competency Evaluation Procedure. (b) The issues of involuntary hospitalization to be considered only if the court has ordered the experts to consider th issues; the court would do so if it found that there existed reasonable grounds to believe that the defendant met the criteria for involuntary hospitalization. The factors set forth in order to determine this issue are those have been developed through prior statutes relating to involuntary hospitalization, from the case of Jackson v. Indiana, , 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), and In Re: Beverly, (Fla. 1977). As to criteria for involuntary hospitalization, see chapter 394, Florida Statutes, or, in the case of mental retardation see chapter 393, Florida Statutes. Section (1), Florida Statutes (1979), prescribes criteria for involuntary hospitalization or placement. In case of mental retardation, section , Florida Statutes (1979), governs. (c) In most instances, the issues of incompetency at time of trial and insanity at time of the offense will be raised at the same time or, at least, in the same case. In the event that the are not raised in the same case, there would be no reason for the examining experts to inquire into the mental status of the defendant at the time of the offense itself at the incompetency examination. However, if insanity as a defense is raised, it would be most appropriate for judicial efficiency to have the examining experts inquire into all issues at the same time. This provision permits such inquiry by the experts in the event that notice of intent to rely on the defense of insanity has been filed by the defendant. (d) This provision is meant to permit local circuits to develop their own forms for such reports if they feel that such forms are appropriate. It does not preclude from suggesting a form would be of particular assistance to them and requesting its adoption, but adoption is not mandated. (e) This provides for the confidentiality of the information obtained by virtue of an examination of the defendant pursuant to this . Cf. § , Fla.Stat. (1979); 1.330(6) Section Florida Statutes is a companion statute relating to mental competence to stand trial. Title. The title is amended to reflect changes in 3.210. (a) This , which was originally an introductory paragraph, is amended to reflect changes in 3.210. The deletions related to the extent of the evaluation and when and to whom the experts' reports are to be submitted have been placed in 3.210(4) above. (1) This , which was formerly (a) has been amended to reflect changes in 3.210 above. (2) This provision has been amended to reflect the changes to 3.210. In addition, the factors previously numbered (i) through (xi) have been reduced to factors. Numbers (v), (vi), (vii), (x), and (xi) have been removed. Those factors were felt to not be directly related to the issue of a defendant having the mental capacity to communicate with his attorney or to understand the proceedings against him and may have had the effect of confusing the issues the experts are to address in assessing a defendant's competency to proceed. The terms "ability" and "capacity" which were used interchangeably in the prior version of this provision have been changed to the single term "capacity" for continuity. A provision has been added which allows the appointed expert to also include any other factors deemed relevant to take into account different techniques and points of view of the experts. (b) This , including its sub, is amended to reflect the changes in 3.210. It also expands the determination from the limited area of whether an incompetent defendant should be voluntarily committed to treatment to recommended treatment options designed to restore or maintain competence. Sub (v) has been deleted because consideration of less restrictive alternatives is addressed in other amendments [See 3.212(c)(3)(iv)] The amendments further reflect 1985 legislative amendments to hapters 394 and 916 (ii) Appropriate treatment may include maintaining the defendant on psychotropic or other medication. See ule 3.215. (c) This provision is amended to take into account the defense of insanity both at trial and in violation of probation/community control hearings. (d) This provision deletes the old language relating to the use of standardized forms. The new provision, with its sub, outlines in detail what the written report of an expert is to include, to ensure the appointed expert understands what issues are to be addressed, identif sources of information, tests or evaluation techniques used, and the findings and observations upon which the expert's opinion is based. It requires the expert to specify those issues on which the expert could not render an opinion. (e) This provision is amended to comply with changes in ule 3.210. In addition, the second paragraph has been expanded to clarify under what circumstances the reports of experts in a competency evaluation may be discovered by the prosecution and used as evidence in a hearing other than the hearing on the issue of a defendant's competency to proceed. (a) The experts preparing the reports may be called by either party or the court, and additional evidence may be introduced by either party. The experts appointed by the court shall be deemed court witnesses whether called by the court or either party and may be examined as such by either party. (b) The court shall first consider the issue of the defendant's competence to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed. (c) If the court finds the defendant is incompetent to proceed, or that the defendant is competent to proceed but that the defendant's competence depends on the continuation of appropriate treatment for a mental illness or mental retardation, the court shall consider issues relating to treatment necessary to restore or maintain the defendant's competence to proceed. (1) The court may order the defendant to undergo treatment if the court finds that the defendant is mentally ill or mentally retarded is in need of treatment, and that treatment appropriate for the defendant's condition is available. If the court finds that the defendant may be treated in the community on bail or other release conditions, the court may make acceptance of reasonable medical treatment a condition of continuing bail or other release conditions. (2) If the defendant is incarcerated, the court may order treatment to be administered at the custodial facility or may order the defendant transferred to another facility for treatment or may commit the defendant as provided in (3) . (3) A defendant may be committed for treatment to restore a defendant's competence to proceed if the court finds : the defendant meets the criteria for commitment as set forth by statute there is a substantial probability that the mental illness or mental retardation causing the defendant's incompetence will respond to treatment and that the defendant will regain competency to proceed in the reasonably foreseeable future treatment appropriate for restoration of the defendant's competence to proceed is available no appropriate treatment alternative less restrictive than that involving commitment is available. (4) If the court commits the defendant, the order of commitment shall contain : indings of fact relating to the issues of competency and commitment addressing the factors set forth in ule 3.211 applicable; opies of the reports of the experts filed with the court pursuant to the order of examination; opies of any other psychiatric, psychological or social work reports submitted to the court relative to the mental state of the defendant; opies of the charging instrument and all supporting affidavits or other documents used in the determination of probable cause. (5) The treatment facility shall admit the defendant for hospitalization and treatment and may retain and treat the defendant. No later than months from the date of admission the administrator of the facility shall file with the court a report shall address the issues and consider the factors set forth in ule 3.211 , with copies to all parties. If at any time during the -month period or during any period of extended commitment may be ordered pursuant to this ule, the administrator of the facility determine that the defendant no longer meets the criteria for commitment or has become competent to proceed, the administrator shall notify the court by such a report, with copies to all parties. If during the -month period of commitment and treatment or during any period of extended commitment may be ordered pursuant to this ule, counsel for the defendant shall have reasonable grounds to believe that the defendant is competent to proceed or no longer meets the criteria for commitment, may move for hearing on the issues of the defendant's competence or commitment. motion shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is now competent to proceed or no longer meets the criteria for commitment. To the extent that it does not invade the attorney-client privilege, the motion shall contain a recital of the specific observations of and conversations with the defendant have formed the basis for motion. If, upon consideration of a motion filed by counsel for the defendant and any information offered the court in support thereof, the court has reasonable grounds to believe that the defendant may have regained competence to proceed or no longer meets the criteria for commitment, the court order the administrator of the facility to report to the court on such issues, with copies to all parties, and shall order a hearing to be held on those issues. (6) The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the facility on the issues raised thereby. If, following hearing, the court determines that the defendant continues to be incompetent to proceed and that meets the criteria for continued commitment or treatment, the court shall order continued commitment or treatment for a period not to exceed year. When the defendant is retained by the facility, the same procedure shall be repeated prior to the expiration of each additional -year period of extended commitment. (7) If at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed. (8) If after any such hearing the court determine that the defendant remains incompetent to proceed but no longer meets the criteria for commitment, the court shall proceed as provided in ule 3.212(d). (d) If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions for a period not to exceed year. The court may order that the defendant receive outpatient treatment at an appropriate local facility and that the defendant report for further evaluation at specified times during release period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed by the court to make such evaluations, with copies to all parties. This ule sets forth the procedure for the hearing itself. other experts involved who were not appointed pursuant to this ule, provision is made that such experts may then be called by either party. Those experts appointed by the court to conduct the examination, if called by the court or by either party to testify at the hearing, will be regarded as court experts. Either party may then examine such experts by leading questions or may impeach such experts. a party call an expert witness other than those appointed by the court pursuant to these ules, the usual evidentiary rules of examining such witnesses shall then apply. Following the hearing, the court may come to one of conclusions: (a) the defendant is competent to stand trial, 3.212(a); (b) the defendant is incompetent to stand trial and is in need of involuntary hospitalization, 3.212(b); (c) the defendant is incompetent to stand trial but is not in need of involuntary hospitalization, 3.212(c). (a) This provision has been contained in every prior rule or statute relating to the issues of competency to stand trial and provides that if the defendant is competent the trial shall commence. No change is recommended. (b) This provides for the second possible finding of the court, namely that the defendant is found incompetent to stand trial and is in need of involuntary hospitalization. It is designed to track the provisions of chapter 394, Florida Statutes, relating to involuntary hospitalization and the provisions of chapter 393 relating to residential services insofar as they may apply to the defendant under criminal charges. In this way, the procedures to be set up by the institution to which a criminal defendant is sent should not vary greatly from procedures common to the institution in the involuntary hospitalization or residential treatment of those not subject to criminal charges. The criteria for involuntary hospitalization set forth in section (1), Florida Statutes (1979). As to involuntary hospitalization for mental retardation, see section , Florida Statutes (1979); definition of treatment facility, see , Florida Statutes (1979); involuntary admission to residential services, see section , Florida Statutes (1979). (2) The requirement that there be certain contents to the order of commitment is set forth in order to give greater assistance to the personnel of the treatment facility. The information to be included in the order should give them the benefit of all information that has been before the trial judge and has been considered by that judge in making decision to involuntarily hospitalize the defendant. This information should then assist the personnel of the receiving institution in making their initial evaluation and in instituting appropriate treatment more quickly. The last requirement, that of supporting affidavits or other documents used in the determination of probable cause is to give some indication of the nature of the offense to the examining doctors to enable them to determine when the defendant has reached a level of improvement that he can discuss the charge with "a reasonable degree of rational understanding." (3) This is designed to correspond with a complementary section of the Florida Statutes. It mandates, as does the statute, that the treatment facility must admit the defendant for hospitalization and treatment. The time limitations set forth in this are designed to coincide with those set forth in chapter 394, Florida Statutes. If, however, the defendant should regain competence or no longer meets hospitalization criteria prior to the expiration of any of the time periods set, the administrator of the facility may report to the court and cause a re-evaluation of the defendant's mental status. At the end of the -month period, and every year thereafter, the administrator must report to the court. These time periods are set forth so as to coincide with chapter 394, Florida Statutes. (i) Permits the defendant's attorney, in an appropriate case, to request a hearing if believes the defendant to have regained competency. The grounds for such belief are to be contained in the motion as is a certificate of the good faith of counsel in filing it. If the motion is sufficient to give the court reasonable grounds to believe that the defendant may be competent or no longer meets the criteria for hospitalization, the court can order a report from the administrator and hold a hearing on the issues. (4) The rule is meant to mandate that the court hold a hearing as quickly as possible, but the hearing must be held at least within 30 days of the receipt of the report from the administrator of the facility. (c) This rule provides for the disposition of the defendant who falls under the third of the alternatives listed above, that is incompetent to stand trial but does not meet the provisions for involuntary hospitalization. It is meant to provide as great a flexibility as possible for the trial judge in handling such defendant. As to criteria for involuntary hospitalization, see section (1), Florida Statutes (1979). Section , Florida Statutes complements this rule and provides for the hospitalization of defendants adjudicated incompetent to stand trial. Title. The title has been amended to reflect changes in 3.210 and 3.211. (a) This provision was formerly the introductory paragraph to this ule. It has been labeled (a) for consistency in form. (b) This provision was former (a). It has been amended to reflect changes in 3.210 and 3.211. The former (b) and (1) been deleted because similar language is now found in new (c) (c) This new provision, including all its , is designed to reflect the commitment criteria in ection (1), Florida Statutes, and to reflect that commitment to is to be tied to specific commitment criteria when no less restrictive treatment alternative is available. (1) This provision provides for available community treatment when appropriate. (2) This provision provides for treatment in a custodial facility or other available community residential program. (3) This provision, and its outlines when a defendant may be committed, and refers to commitment criteria under the provisions of ection (1), Florida Statutes. (4) This provision, and its was formerly (b)(2). The language has been amended to reflect changes in hapter 916 relating to the commitment of persons found incompetent to proceed and changes in 3.210 and 3.211. (5) This provision, and its was formerly (b)(3). The amendments are for the same reasons as (4) above. (6) This provision was formerly (b)(4). The amendments are for the same reasons as (4) above. (7) This provision was formerly (b)(5). The amendments are for the same reasons as (4) above. (8) This provision was formerly (b)(6). The amendments are for the same reasons as (4) above. (d) The amendments to the provision are for the same reasons as (4) above. (a) If at any time after years after determining a person incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony, or year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future, and that the defendant does not meet the criteria for commitment, it shall dismiss the charges against the defendant without prejudice to the tate to refile the charges should the defendant be declared competent to proceed in the future. (b) If at any time after years after determining a person incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony or year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future and that the defendant does meet the criteria for commitment, the court shall dismiss the charges against the defendant and commit the defendant to the Department of Health and Rehabilitative Services for involuntary hospitalization or residential services solely under the provisions of law, or may order that receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of the facility notify the tate ttorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant. If charges are dismissed pursuant to this dismissal shall be without prejudice to the tate to refile the charges should the defendant be declared competent to proceed in the future. (c) This shall not apply to defendants determined to be incompetent to proceed with sentencing which is provided in ule 3.214 . As to involuntary hospitalization, see section (1), Florida Statutes (1979); as to involuntary admission to residential services, see chapter 393, Florida Statutes (1979). (b) This provision is meant to deal with the defendant who remains incompetent after years, and who does meet the criteria for involuntary hospitalization. It provides that the criminal charges will be dismissed and the defendant will be involuntarily hospitalized. It further provides that the administrator of the facility must notify the tate ttorney prior to any release of a defendant committed pursuant to this As to criteria for involuntary hospitalization, see section (1), Florida Statutes (1979); in case of retardation, see chapter 393, Florida Statutes (1979). (c) Since commitment criteria for a defendant determined to be incompetent to stand trial are the same as for civil hospitalization, there is no need to continue the difference between felony and misdemeanor procedure. Section Florida Statutes makes the statute of limitations and defense of former jeopardy inapplicable to criminal charges dismissed because of incompetence of defendant to stand trial. Title. The title has been amended to comply with change in 3.210, but specifically excludes competency to proceed with sentencing which is addressed in the new ule 3.214. (a) This provision was amended to reflect changes in 3.210 and 3.211. New language is added which specifies that, if charges are dismissed under this rule, it is without prejudice to the tate to refile if the defendant is declared competent to proceed in the future. Similar language was previously found in 3.214(d), but is more appropriate under this rule. (b) This provision has been amended for the same reasons as (a) above. (c) This new provision specifically exempts this rule from being used against a defendant determined to be incompetent to be sentenced which is now provided in the new ule 3.214. It is replaced by the new 3.214. If a defendant is determined to be incompetent to proceed after being found guilty of an offense or violation of probation or community control or after voluntarily entering a plea to an offense or violation of probation or community control, but prior to sentencing, the court shall postpone the pronouncement of sentence and proceed pursuant to ule 3.210 (et seq.) and the following rules. Title. This new rule replaces the former 3.740. It was felt to be more appropriately addressed in this sequence. The former 3.214 is now renumbered 3.215. The former rule 3.740 used the inappropriate phrase "(p)rocedures when insanity is alleged as cause for not pronouncing sentence." Insanity is an affirmative defense to a criminal charge. The more correct term is "incompetence to proceed to sentencing." (a) This new provision reiterates amendments to 3.210 and provides that sentencing shall be postponed for a defendant incompetent to proceed with disposition of a criminal matter — to include a finding of guilt at trial, after entry of a voluntary plea, or after a violation of probation or community control proceeding. (a) If the defendant is declared incompetent to stand trial during trial and afterwards declared competent to stand trial, other uncompleted trial shall not constitute former jeopardy. (b) An adjudication of incompetency to proceed shall not operate as an adjudication of incompetency to consent to medical treatment or for any other purpose unless such other adjudication is specifically set forth in the order. (c) A defendant who, because of psychotropic medication, is able to understand the proceedings and to assist in defense shall not automatically be deemed incompetent to proceed simply because satisfactory mental condition is dependent on such medication, nor shall be prohibited from proceeding solely because is being administered medication under medical supervision for a mental or emotional condition. (1) Psychotropic medication is any drug or compound affecting the mind, behavior, intellectual functions, perception, moods, or emotion and includes anti-psychotic, anti-depressant, anti-manic, and anti-anxiety drugs. (2) If the defendant proceeds to trial with the aid of medication for a mental or emotional condition, on the motion of defense counsel, the jury shall, at the beginning of the trial and in the charge to the jury, be given explanatory instructions regarding such medication. (c) As to psychotropic medications, see section Florida Statutes (1980) (d) This is intended to provide specific exceptions to the peedy rial ule. Title. This rule was formerly 3.214. The amendments to this rule, including the title, are designed to reflect amendments to 3.210 and 3.211. (d) Matters contained in former subsection (d) are covered by the provisions of ule 3.191. That subsection has therefore been deleted. (a) When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to proceed or that may have been insane at the time of the offense or probation or community control violation, may so inform the court who shall appoint expert to examine the defendant in order to assist in the preparation of defense. expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege. (b) When in any criminal case it shall be the intention of the defendant to rely on the defense of insanity either at trial or probation or community control violation hearing, no evidence offered by the defendant for the purpose of establishing defense shall be admitted in case unless advance notice in writing of the defense shall have been given by the defendant as hereinafter provided. (c) The defendant shall give notice of intent to rely on the defense of insanity no later than 15 days after the arraignment or the filing of a written plea of not guilty in the case when the defense of insanity is to be relied on at trial or no later than 15 days after being brought before the appropriate court to answer to the allegations in a violation of probation or community control proceeding. If counsel for the defendant shall have reasonable grounds to believe that the defendant may be incompetent to proceed, the notice shall be given at the same time that the motion for examination into the defendant's competence is filed. notice shall contain a statement of particulars showing the nature of the insanity the defendant expects to prove and the names and addresses of the witnesses by whom expects to show insanity, insofar as is possible. (d) n the filing of such notice the court may on its own motion, and shall on motion of the tate or the defendant, order that the defendant be examined by no more than nor fewer than disinterested, qualified experts as to the sanity or insanity of the defendant at the time of the commission of the alleged offense or probation or community control violation. Attorneys for the tate and defendant may be present at the examination. examination should take place at the same time as the examination into the competence of the defendant to proceed, if the issue of competence has been raised. (e) The experts shall examine the defendant and shall file with the court in writing at such time as shall be specified by the court with copies to attorneys for the tate and the defense, a report shall contain : (1) description of the evaluative techniques were used in their examination; (2) description of the mental and emotional condition and mental processes of the defendant at the time of the alleged offense or probation or community control violation, including the nature of any mental impairment and its relationship to the actions and state of mind of the defendant at the time of the offense or probation or community control violation; (3) statement of all relevant factual information regarding the defendant's behavior on which the conclusions or opinions regarding mental condition were based; (4) n explanation of how the conditions and opinions regarding the defendant's mental condition at the time of the alleged offense or probation or community control violation were reached. (f) n good cause shown for the omission of the notice of intent to rely on the defense of insanity, the court may in its discretion grant the defendant 10 days to comply with notice requirement. If leave is granted and the defendant files notice, is deemed unavailable to proceed. If the trial has already commenced, the court, only on motion of the defendant, may declare a mistrial in order to permit the defendant to raise the defense of insanity pursuant to this ule. Any motion for mistrial shall constitute a waiver of the defendant's right to any claim of former jeopardy arising from the uncompleted trial. (g) If the defendant has been released on bail or other release conditions, the court may order the defendant to appear at a designated place for evaluation at a specific time as a condition of release provision. If the court determines that the defendant will not submit to the evaluation provided for herein or that the defendant is not likely to appear for the scheduled evaluation, the court may order the defendant taken into custody, until the evaluation is completed. A motion made for evaluation under this shall not otherwise affect the defendant's right to release. (h) The appointment of experts by the court shall not preclude the tate or the defendant from calling additional expert witnesses to testify at the trial. The experts appointed by the court may be summoned to testify at the trial, and shall be deemed court witnesses whether called by the court or either party. Other evidence regarding the defendant's sanity may be introduced by either party. At trial, in its instructions to the jury, the court shall include an instruction on the consequences of a verdict of not guilty by reason of insanity. (a) This is based on Pouncy v. State, (Fla. 3d DCA 1977), and provides that an expert may be provided for an indigent defendant. The appointment of the expert will in this way allow the public defender or courtappointed attorney to screen possible incompetency or insanity cases and give a basis for determining whether issues of incompetency or insanity ought to be raised before the court; it will also permit the defense attorney to specify in greater detail in the statement of particulars the nature of the insanity expects to prove, if any, and the basis for the raising of that defense. (b) Essentially the same as in prior rules; provides that written notice must be given in advance by the defendant. (c) Since counsel for indigents often are not appointed until arraignment and since it is sometimes difficult for a defendant to make a determination on whether the defense of insanity should be raised prior to arraignment, a 15day post-arraignment period is provided for the filing of the notice. The defendant must raise incompetency at the same time as insanity, if at all possible. With the appointment of the expert to assist the defendant, should be able to raise both issues at the same time if grounds for both exist. The remainder of the ule, providing for the statement to be included in the notice, is essentially the same as that in prior rules. (d) The appointment of experts provision is designed to track, insofar as possible, the provisions for appointment of experts contained in the rules relating to incompetency to stand trial and in the Florida Statutes relating to appointment of expert witnesses. Insofar as possible, the single examination should include incompetency, involuntary commitment issues where there are reasonable grounds for their consideration, and issues of insanity at time of the offense. Judicial economy would mandate such a single examination where possible. (e) In order to obtain more standardized reports, specific items relating to the examination are required of the examining experts. See note to ule 3.211(a). (f) Essentially the substance of prior ule 3.210(e)(4) and (5), with some changes. Both prior provisions are combined into a single provision; speedy trial time limits are no longer set forth, but waiver of double jeopardy is mandated. (g) Same as ule 3.210(b)(3), relating to incompetency to stand trial. See commentary to that ule. (h) A restatement of former ule 3.210(e)(7). The provision that experts called by the court shall be deemed court witnesses is new. The former provision relating to free access to the defendant is eliminated as unnecessary. As to appointment of experts, see section Florida Statutes The amendments to this rule, including the title, provide for the affirmative defense of insanity in violation of probation or community control proceedings as well as at trial. (a) When a person is found not guilty of the offense or found not in violation of probation or community control of insanity the jury or judge in giving the verdict or finding of not guilty judgment shall state that it was given for (b) When a person is found not guilty of the offense or is found not to be in violation of probation or community control of insanity, if the court shall then determine that the defendant presently meets the criteria set forth by law, the court shall commit the defendant to the Department of Health and Rehabilitative Services or shall order outpatient treatment at any other appropriate facility or service on an outpatient basis, or shall discharge the defendant. Any order committing the defendant or requiring outpatient treatment or other outpatient service shall contain : indings of fact relating to the issue of commitment or other courtordered treatment; opies of any reports of experts filed with the court; ny other psychiatric, psychological or social work report submitted to the court relative to the mental state of the defendant. (a) Same substance as in prior rule. (b) The criteria for commitment are set forth in chapter 394, Florida Statutes. This ule incorporates those statutory criteria by reference and then restates the other alternatives available to the judge under former ule 3.210. See section Florida Statutes for criteria. (1) This is equivalent to ule 3.212(b)(2); see commentary to that ule. The amendments to this rule provide for evaluation of a defendant found not guilty by reason of insanity in violation of probation or community control proceedings as well as at trial. The amendments further reflect 1985 amendments to hapter 916, Florida Statutes. The Department of Health and Rehabilitative Services shall admit to an appropriate facility a defendant found not guilty by reason of insanity pursuant to ule 3.217 and found to meet the criteria for commitment for hospitalization and treatment and may retain and treat the defendant. No later than months from the date of admission, the administrator of the facility shall file with the court a report, with copies to all parties, which shall address the issues of further commitment of the defendant. If at any time during the -month period, or during any period of extended hospitalization may be ordered pursuant to this ule, the administrator of the facility shall determine that the defendant no longer meets the criteria for commitment, the administrator shall notify the court by such a report with copies to all parties. () The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the facility on the issues raised thereby, and the defendant shall have a right to be present at hearing. If, following hearing, the court determines that the defendant continues to meet the criteria for continued commitment or treatment, the court shall order further commitment or treatment for a period not to exceed year. The same procedure shall be repeated prior to the expiration of each additional -year period the defendant is retained by the facility. () Prior to any hearing held pursuant to this ule, the court may on its own motion, and shall on motion of counsel for tate or defendant, appoint no fewer than nor more than experts to examine the defendant relative to the criteria for continued commitment or placement of the defendant, and shall specify the date by which such experts shall report to the court on these issues with copies to all parties. This provision provides for hospitalization of a defendant found not guilty by reason of insanity and is meant to track similar provisions in the rules relating to competency to stand trial and the complementary statutes. It provides for an initial month period of commitment with successive year periods; it provides for reports to the court and for the appointment of experts to examine the defendant when such hearings are necessary. The underlying rationale of this ule is to make standard, insofar as possible, the commitment process, whether it be for incompetency to stand trial or following a judgment of not guilty by reason of insanity. For complementary statute providing for hospitalization of defendant adjudicated not guilty by reason of insanity, see section Florida Statutes . The amendments to this rule, including the title, provide for commitment of defendants found not guilty by reason of insanity in violation of probation or community control proceedings, as well as those so found at trial. The amendments further reflect 1985 amendments to hapter 916, Florida Statutes. (a) The committing court may order a conditional release of any defendant who has been committed according to a finding of incompetency to proceed or an adjudication of not guilty by reason of insanity based on an approved plan for providing appropriate outpatient care and treatment. At such time as the administrator shall determine outpatient treatment of the defendant to be appropriate, may file with the court, with copies to all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. Such a plan may be submitted by the defendant. The plan shall include: (1) pecial provisions for residential care adequate supervision of the defendant; (2) rovisions for outpatient mental health services; (3) f appropriate, recommendations for auxiliary services such as vocational training, educational services, or special medical care. In its order of conditional release, the court shall specify the conditions of release based on the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant's compliance with the conditions of the release, and progress in treatment, with copies to all parties. (b) If at any time it appears that the defendant has failed to comply with the conditions of release, or that the defendant's condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court may, after hearing, modify the release conditions or, if the court finds the defendant meets the statutory criteria for commitment, may order that the defendant be recommitted to the Department of Health and Rehabilitative Services for further treatment. (c) If at any time it is determined after hearing that the defendant no longer requires court-supervised follow-up care, the court shall terminate its jurisdiction in the cause and discharge the defendant. This implements the prior statutory law permitting conditional release. For complementary statute providing for conditional release, see ection , Florida Statutes . The amendments to this rule are designed to reflect amendments to 3.210, 3.211, and 3.218 as well as 1985 amendments to hapter 916, Florida Statutes. (b) This provision has been amended to the court recommit a conditionally released defendant to HRS under the provisions of hapter 916 only if the court makes a finding that the defendant currently meets the statutory commitment criteria found in ection (1), Florida Statutes. (a) If a defendant should elect to the discovery process provided by these rules, including the taking of discovery depositions, the defendant shall file with the court and serve on the prosecuting attorney notice of the defendant's intent to participate in discovery. "Notice of Discovery" shall bind both the prosecution and defendant to all discovery procedures contained in these rules. The defendant may take discovery depositions on the filing of notice. The defendant's participating in the discovery process, including the defendant's taking of the deposition of any person, shall be an election to participate in discovery. If any defendant knowingly or purposely shares in discovery obtained by a codefendant, shall be deemed to have elected to participate in discovery. (b) (1) After the filing of the within days after service of the defendant's notice of election to participate in discovery, the prosecutor shall disclose to defense counsel and permit to inspect, copy, test and photograph the following information and material within the tate's possession or control: he names and addresses of all persons known to the prosecutor to have information may be relevant to the offense charged and to any defense with respect thereto. The defendant may take the deposition of any person not designated by the prosecutor as a person: who performed only a ministerial function with respect to the case or whom the prosecutor does not, in good faith, intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense he statement of any person whose name is furnished in compliance with the preceding The term "statement" as used herein includes a written statement made by person and signed or otherwise adopted or approved by and also includes any statement of any kind or manner made by person and written or recorded or summarized in any writing or recording. The term "statement" is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which reports are compiled ny written or recorded statements and the substance of any oral statements made by the accused, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements ny written or recorded statements and the substance of any oral statements made by a codefendant if the trial is to be a joint one hose portions of recorded grand jury minutes that contain testimony of the accused ny tangible papers or objects were obtained from or belonged to the accused hether the tate has any material or information has been provided by a confidential informant hether there has been any electronic surveillance, including wiretapping, of the premises of the accused or of conversations to which the accused was a party and any documents relating thereto hether there has been any search or seizure and any documents relating thereto eports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons ny tangible papers or objects the prosecuting attorney intends to use in the hearing or trial and were not obtained from or to the accused. If the court determines, in camera, that any police or investigative report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and the disclosure of the contents of police report may seriously impair law enforcement or jeopardize the investigation of other crimes or activities, the court may prohibit or partially restrict disclosure. The court may prohibit the tate from introducing into evidence any of the foregoing material not disclosed, so as to secure and maintain fairness in the just determination of the cause. () As soon as practicable after the filing of the the prosecutor shall disclose to the defense counsel any material information within the tate's possession or control tends to negate the guilt of the accused as to the offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations. () The prosecutor shall perform the foregoing obligations in any manner mutually agreeable to and defense counsel or as ordered by the court. (c) (1) After the filing of the and subject to constitutional limitations, a judicial officer may require the accused to: ppear in a peak for identification by witnesses to an offense; e fingerprinted; ose for photographs not involving reenactment of a scene; ry on articles of clothing; ermit the taking of specimens of material under fingernails; ermit the taking of samples of blood, hair and other materials of body involves no unreasonable intrusion thereof; rovide specimens of handwriting; and ubmit to a reasonable physical or medical inspection of body. (2) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of appearance shall be given by the prosecuting attorney to the accused and his counsel. Provisions may be made for appearances for such purposes in an order admitting the accused to bail or providing for release. (d) If a defendant elects to participate in discovery, either through filing the appropriate notice or by participating in any discovery process, including the taking of a discovery deposition, : Within days after receipt by the defendant of the list of names and addresses furnished by the prosecutor pursuant to of this ule the defendant shall furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expects to call as witnesses at the trial or hearing. When the prosecutor subpoenas a witness whose name has been furnished by the defendant, except for trial subpoenas, reasonable notice shall be given to the defendant as to the time and place of examination pursuant to the subpoena. At such examination, the defendant, through defense counsel, shall have the right to be present and to examine the witness. The physical presence of the defendant shall be governed by ule 3.220(h)(6) The defendant shall disclose to the prosecutor and permit to inspect, copy, test, and photograph the following information and material is in the defendant's possession or control: (i) he statement of any person listed in (d)(1), other than that of the defendant (ii) eports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons (iii) ny tangible papers or objects the defendant intends to use in the hearing or trial. The defendant shall make the foregoing disclosures within days after receipt by of the corresponding disclosure from the prosecutor. The defendant shall perform the foregoing obligations in any manner mutually agreeable to and the prosecutor or as ordered by the court. The filing of a motion for protective order by the prosecutor will automatically stay the times provided for in this -. If a protective order is granted, the defendant may, within days thereafter, or at any time before the prosecutor furnishes the information or material is the subject of the motion for protective order, withdraw notice of discovery and not be required to furnish reciprocal discovery. (e) The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this ule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from disclosure, outweighs any usefulness of the disclosure to either party. (f) a showing of materiality, the court may require such other discovery to the parties as justice may require. (g) (1) Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney, or members of legal staff (2) Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose identity will infringe the constitutional rights of the accused. (h) (1) At any time after the filing of the the defendant may take the deposition upon oral examination of any person who may have information relevant to the offense charged. Subject to the provisions of this rule, a party taking a deposition shall give reasonable written notice to each other party. The notice shall state the time and place the deposition is to be taken and the name of each person to be examined. After notice to the parties the court may, for good cause shown, extend or shorten the time and may change the place of taking. Except as provided herein, the procedure for taking deposition, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure. Any deposition taken pursuant hereto may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. The trial court or its clerk shall, upon application, issue subpoenas for the persons whose depositions are to be taken. In any case, including multiple defendant or consolidated cases, no person shall be deposed more than once except by consent of the parties or by order of the court issued on good cause shown. A resident of the tate may be required to attend an examination only in the county wherein resides, is employed, or regularly transacts his business in person. A person who refuses to obey a subpoena served on him may be adjudged in contempt of the court from which the subpoena issued. No defendant may take the deposition of a person designated under unless an order has been entered by the trial court permitting the taking of deposition based on good cause shown by the defendant. Abuses by either the prosecutor or the defendant in designating and seeking to take the depositions of those persons designated under (b)(1) are subject to the sanctions provision of this rule. No deposition shall be taken in a case the defendant is charged with a misdemeanor or a criminal traffic offense when all other discovery provided by this rule has been complied with unless good cause can be shown to the trial court. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition. However, this prohibition against the taking of depositions shall not be applicable if following the furnishing of discovery by the defendant the tate then takes the statement of a listed defense witness pursuant to (2) No transcript of a deposition for which a county may be obligated to expend funds shall be ordered by a party unless it is: agreed between the tate and any defendant that the deposition should be transcribed and a written agreement certifying that the deposed witness is material or specifying other good cause is filed with the court or ordered by the court on a showing that the deposed witness is material or on showing of good cause. This rule shall not apply to applications for reimbursement of costs pursuant to and rticle I, ection 9 of the Florida Constitution. (3) The deposition shall be taken in a building where the trial will be held, such other place agreed on by the parties or such place as the trial judge, administrative judge, or chief judge may designate by special or general order. (4) Depositions of children under the age of 16 shall be videotaped unless otherwise ordered by the court. The court may order the videotaping of a deposition or the taking of a deposition of a witness with fragile emotional strength to be in the presence of the trial judge or a special master. (5) If a witness coordinating office has been established in the jurisdiction pursuant to applicable Florida Statutes the deposition of any law enforcement officer should be coordinated through office. The itness oordinating ffice should attempt to schedule depositions of witnesses, especially law enforcement officers, at a time and place convenient for the witness and acceptable to counsel for both the defense and the prosecution. (6) A defendant shall not be physically present at a deposition except on stipulation of the parties or on court order for good cause shown. The defendant may move for an order permitting physical presence of the defendant on a showing of good cause. In ruling on motion, the court may consider the need for the physical presence of the defendant to obtain effective discovery, the intimidating effect of the defendant's presence on the witness, if any, and any cost or inconvenience related to the defendant's presence. In considering the defendant's motion to be physically present at a discovery deposition, the court may consider alternative electronic or audio/visual means to protect the defendant's ability to participate in discovery without physical presence. (7) n stipulation of parties and the consent of the witness, the statement of a law enforcement officer may be taken by telephone in lieu of the deposition of the officer. In such case, the officer need not be under oath. The statement, however, shall be recorded and may be used for impeachment at trial as a prior inconsistent statement pursuant to the Florida Evidence Code. (i) Except as is otherwise provided as to matters not subject to disclosure or restricted by protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the accused) to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case. (j) If, subsequent to compliance with the rules, a party discovers additional witnesses or material would have been under a duty to disclose or produce at the time of previous compliance, shall promptly disclose or produce witnesses or material in the same manner as required under these rules for initial discovery. (k) The court may alter the times for compliance with any discovery under these rules on good cause shown. () n a showing of good cause, the court shall at any time order that specified disclosures be restricted or deferred, that certain matters not be inquired into, that the scope of the deposition be limited to certain matters, that a deposition be sealed and after being sealed be opened only by order of the court, or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience or invasion of privacy, provided that all material and information to which a party is entitled must be disclosed in time to permit party to make beneficial use thereof. (m) n request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or any portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting the relief following a showing in camera, the entire record of showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. (n) (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances. (2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, shall subject counsel to appropriate sanctions by the court. sanctions may include, but are not limited to, contempt proceedings against the attorney, as well as the assessment of costs incurred by the opposing party, appropriate. (3) Every request for discovery or response or objection, including a notice of deposition made by a party represented by an attorney, shall be signed by at least attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and list his address. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, or belief formed after a reasonable inquiry it is: consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and not unreasonable or unduly burdensome or expensive, given the needs of the case and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of this ule, the court, on motion or on its own initiative, shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party on whose behalf the request, response, or objection is made, or any or all of the above, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. () After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the county. (p) The trial court may hold or more conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The accused shall be present unless waives this in writing. The committee studied the ABA Standards for Criminal Justice relating to discovery and procedure before trial. Some of the tandards are incorporated in the committee's proposal, others are not. Generally, the tandards are divided into parts: Part I deals with policy and philosophy and, while the committee approves the substance of Part I, it was determined that specific rules setting out this policy and philosophy should not be proposed. Part II provides for automatic disclosures (avoiding judicial labor) by the prosecutor to the defense of almost everything within the prosecutor's knowledge, except for work product and the identity of confidential informants. The committee adopted much of Part II, but felt that the disclosure should not be automatic in every case; the disclosure should be made only after request or demand and within certain time limitations. The ABA Standards do not recommend reciprocity of discovery, but the committee deemed that a large degree of reciprocity is in order and made appropriate recommendations. Part III of the ABA Standards recommends some disclosure by the defense (not reciprocal) to which the tate was not previously entitled. The committee adopted Part III and enlarged upon it. Part IV of the Standards sets forth methods of regulation of discovery by the court. Under the Standards the discovery mentioned in Parts II and III would have been automatic and without the necessity of court orders or court intervention. Part III provides for procedures of protection of the parties and was generally incorporated in the recommendations of the committee. Part V of the ABA Standards deals with mnibus earings and conferences. The committee rejected part of the Standards dealing with mnibus earings because it felt that it was superfluous under Florida procedure. The Florida committee determined that a trial may, discretion, schedule a hearing for the purposes enumerated in the ABA Omnibus Hearing and that a rule authorizing it is not necessary. Some of the provisions of the ABA Omnibus Hearing were rejected by the Florida committee, i.e., stipulations as to issues, waivers by defendant, etc. A modified form of conference was provided in the proposals by the Florida committee. (a)(1)(i) Same as ABA Standard 2.1(a)(i) and substance of Standard 2.1(e). Formerly Florida Rule 3.220(e) authorized exchange of witness lists. When considered with proposal 3.220(a)(3), it is seen that the proposal represents no significant change. (ii) This rule is a modification of Standard 2.1(a)(ii) and is new in Florida, although some such statements might have been discoverable under ule 3.220(f). Definition of "statement" derived from . Requiring law enforcement officers to include irrelevant or sensitive material in their disclosures to the defense would not serve justice. Many investigations overlap and information developed as a of one investigation may form the basis and starting point for a new and entirely separate one. Also, the disclosure of any information obtained from computerized records of the Florida Crime Information Center and the National Crime Information Center should be subject to the regulations prescribing the confidentiality of such information so as to safeguard the right of the innocent to privacy. (iii) Same as Standard 2.1(a)(ii) relating to statements of accused; words, " known to the prosecutor, together with the name and address of each witness to the statement" added and is new in Florida. (iv) From Standard 2.1(a)(ii). New in Florida. (v) From Standard 2.1(a)(iii) except for addition of words, "that have been recorded" which were inserted to avoid any inference that the proposed rule makes recording of grand jury testimony mandatory. This discovery formerly available under ule 3.220(a)(3). (vi) From Standard 2.1(a)(v). Words, "books, papers, documents, photographs" were condensed to "papers or objects" without intending to change their meaning. This was previously available under ule 3.220(b). (vii) From Standard 2.1(b)(i) except word "confidential" was added to clarify meaning. This is new in this form. (viii) From Standard 2.1(b)(iii) and is new in Florida in this form. Previously this was disclosed upon motion and order. (ix) From Standard 2.3(a), but also requiring production of "documents relating thereto" such as search warrants and affidavits. Previously this was disclosed upon motion and order. (x) From Standard 2.1(a)(iv). Previously available under ule 3.220(a)(2). Defendant must reciprocate under 3.220(b)(4). (xi) Same committee note as (b) under this (2) From Standard 2.1(c) except omission of words "or would tend to reduce his punishment therefor" which should be included in sentencing. (3) Based upon Standard 2.2(a) and (b) except Standards required prosecutor to furnish voluntarily and without demand while this proposal requires defendant to make demand and permits prosecutor 15 days in which to respond. (4) From Standards 2.5(b) and 4.4. Substance of this proposal previously available under ule 3.220(h). (5) From Standard 2.5. New in Florida. (b)(1) From Standard 3.1(a). New in Florida. (2) From Standard 3.1(b). New in Florida. (3) Standards did not recommend that defendant furnish prosecution with reciprocal witness list; however, formerly, ule 3.220(e) did make such provision. The committee recommended continuation of reciprocity. (4) Standards did not recommend reciprocity of discovery. Previously, Florida ules required some reciprocity. The ommittee recommended continuation of former reciprocity and addition of exchanging witness' statement other than defendants'. (c) From Standard 2.6. New in Florida, but generally recognized in decisions. (d) Not recommended by Standards. Previously permitted under ule 3.220(f) except for change limiting the place of taking the deposition and eliminating requirement that witness refuse to give voluntary signed statement. (e) From Standard 4.1. New in Florida. (f) Same as ule 3.220(g). (g) From Standard 4.4 and ule 3.220(h). (h) From Standard 4.4 and ule 3.220(h). (i) From Standard 4.6. Not previously covered by rule in Florida, but permitted by decisions. (j)(1) From Standard 4.7(a). New in Florida except court discretion permitted by ule 3.220(g). (2) From Standard 4.7(b). New in Florida. (k) Same as prior rule. (1) Modified Standard 5.4. New in Florida. The proposed change only removes the comma which currently appears after (a)(1). The intent of the rule change is to guarantee that the accused will receive those portions of police reports or report summaries which contain any written, recorded or oral statements made by the accused. . The showing of good cause under (d)(2) of this rule may be presented ex parte or in camera to the court. 3.220(a). The purpose of this change is to ensure reciprocity of discovery. Under the previous rule, the defendant could tailor discovery, demanding only certain items of discovery with no requirement to reciprocate items other than those demanded. A defendant could avoid reciprocal discovery by taking depositions, thereby learning of witnesses through the deposition process, and then deposing those witnesses without filing a demand for discovery. With this change, once a defendant opts to use any discovery device, the defendant is required to produce all items designated under the discovery rule, whether or not the defendant has specifically requested production of those items. Former (c) is (b). Under (b)(1) the prosecutor's obligation to furnish a witness list is conditioned upon the defendant filing a "Notice of Discovery." Former (a)(1)(i) is (b)(1)(i) and, as amended, limits the ability of the defense to take depositions of those persons designated by the prosecutor as witnesses who should not be deposed because of their tangential relationship to the case. This does not preclude the defense attorney or investigator from interviewing any witness, including a police witness, about knowledge of the case. This change is intended to meet a primary complaint of law enforcement agencies, that depositions are frequently taken of persons who have no knowledge of the events leading to the charge, but whose names are disclosed on the witness list. Examples of these persons are transport officers, evidence technicians, etc. In order to permit the defense to evaluate the potential testimony of those individuals designated by the prosecutor, their testimony must be fully set forth in some document, generally a police report. (a)(1)(ii) is (b)(1)(ii). This is amended to require full production of all police incident and investigative reports, of any kind, discoverable, provided there independent reason for restricting their disclosure. The term "statement" is intended to include summaries of statements of witnesses made by investigating officers as well as statements adopted by the witnesses themselves. The protection against disclosure of sensitive information, or information that otherwise should not be disclosed, formerly set forth in (a)(1)(i), is retained, but transferred to (b)(1)(xii). The prohibition sanction is not eliminated, but is transferred to (b)(1)(xiii). "Shall" has been changed to "may" in order to reflect the procedure for imposition of sanctions specified in Richardson v. State, (Fla. 1971). The last phrase of (b)(2) is added to emphasize that constitutionally required Brady material must be produced regardless of the defendant's election to participate in the discovery process. Former (b) is (c). Former (b)(3) and (4) are now included in new (d). An introductory phrase has been added to (d). (d) reflects the change in nomenclature from a "Demand for Discovery" to the filing of a "Notice of Discovery." As used in (d), the word "defendant" is intended to refer to the party rather than to the person. Any obligations incurred by the "defendant" are incurred by the defendant's attorney if the defendant is represented by counsel and by the defendant if the defendant is The right of the defendant to be present and to examine witnesses, set forth in (d)(1), refers to the right of the defense, as party to the action. The term refers to the attorney for the defendant if the defendant is represented by counsel. The right of the defendant to be physically present at the deposition is controlled by new (h)(6). (d)(2), as amended, reflects the new otice of iscovery procedure. If the defendant elects to participate in discovery, the defendant is obligated to furnish full reciprocal disclosure. (e) was previously numbered (a)(4). This has been modified to permit the remedy to be sought by either prosecution or defense. (f) was previously numbered (a)(5) and has been modified to permit the prosecutor, as well as the defense attorney, to seek additional discovery. Former (c) is (g). Former (d) is (h). (h)(1) has been amended to reflect the restrictions on deposing a witness designated by the prosecution under (b)(1)(i) (designation of a witness performing ministerial duties only or one who will not be called at trial). (h)(1)(ii) is added to provide that a deposition of a witness designated by the prosecutor under (b)(1)(i) may be taken only upon good cause shown by the defendant to the court. (h)(1)(ii) is added to provide that abuses by attorneys of the provisions of (b)(1)(i) are subject to stringent sanctions. New (h)(1)(iii) abolishes depositions in misdemeanor cases except good cause shown. A portion of former (d)(1) is (h)(3). This now permits the administrative judge or chief judge, in addition to the trial judge, to designate the place for taking the deposition. New (h)(4) recognizes that children and some adults are especially vulnerable to intimidation tactics. Although it has been shown that such tactics are infrequent, they should not be tolerated because of the traumatic effect on the The videotaping of the deposition will enable the trial judge to control such tactics. Provision is also made to protect witnesses of fragile emotional strength because of their vulnerability to intimidation tactics. New (h)(5) emphasizes the necessity for the establishment, in each jurisdiction, of an effective itness oordinating ffice. The Florida Legislature has authorized the establishment of such office through 43.35, This is intended to make depositions of witnesses and law enforcement officers as convenient as possible for the witnesses and with minimal disruption of law enforcement officers' official duties. New (h)(6) recognizes that one of the most frequent complaints from child protection workers and from rape victim counselors is that the presence of the defendant intimidates the witnesses. The trauma to the victim surpasses the benefit to the defense of having the defendant present at the deposition. Since there is no right, other than that given by the rules of procedure, for a defendant to attend a deposition, the Florida Supreme Court Commission on Criminal Discovery believes that no such right should exist in those cases. The "defense," of course, as a party to the action, has a right to be present through counsel at the deposition. In this the word "defendant is meant to refer to the person of the defendant, not to the defense as party. See comments to rule 3.220(d) and 3.220(d)(1). Although defendants have no right to be present at depositions and generally there is no legitimate reason for their presence, their presence is appropriate in certain cases. An example is a complex white collar fraud prosecution in which the defendant must explain the meaning of technical documents or terms. Cases requiring the defendant's presence are the exception rather than the rule. Accordingly, (h)(6)(i)-(ii) preclude the presence of defendants at depositions unless agreed to by the parties or ordered by the court. These set forth factors that a court should take into account in considering motions to allow a defendant's presence. New (h)(7) permits the defense to obtain needed factual information from law enforcement officers by informal telephone deposition. Recognizing that the formal deposition of a law enforcement officer is often unnecessary, this procedure will permit such discovery at a significant reduction of costs. Former (e), (f), and (g) are (i), (j), and (k), respectively. Former (h) is (1) and is modified to emphasize the use of protective orders to protect witnesses from harassment or intimidation and to provide for limiting the scope of the deposition as to certain matters. Former (i) is (m). Former (j) is (n). (n)(2) is amended to provide that sanctions are mandatory if the court finds willful abuse of discovery. Although the amount of sanction is discretionary, some sanction must be imposed. (n)(3) is new and tracks the certification provisions of federal procedure. The very fact of signing such a certification will make counsel cognizant of the effect of that action. (k) is (). () is (p). (a) The tate or the defendant may move to disqualify the judge assigned to try the cause on the grounds that the judge is prejudiced against the movant or in favor of the adverse party the defendant is related to the judge by consanguinity or affinity within the third degree judge is related to an attorney or counselor of record for the defendant or the tate by consanguinity or affinity within the third degree or judge is a material witness for or against one of the parties to cause. (b) Every motion to disqualify shall be in writing and be accompanied by or more affidavits setting forth facts relied on to show the grounds for disqualification, and a certificate of counsel of record that the motion is made in good faith. (c) A motion to disqualify a judge shall be filed no less than 10 days before the time the case is called for trial unless good cause is shown for failure to so file within such time. (d) The judge presiding shall examine the motion and supporting affidavits to disqualify for prejudice to determine their legal sufficiency only, but shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. If the motion and affidavits are legally sufficient, the presiding judge shall enter an order disqualifying himself and proceed no further therein. Another judge shall be designated in a manner prescribed by applicable laws or rules for the substitution of judges for the trial of causes where the judge presiding is disqualified. (e) When the prosecuting attorney or defendant suggested the disqualification of a trial judge and an order been made admitting the disqualification of such judge, and another judge been assigned to act in lieu of the judge so held to be disqualified the judge so assigned shall not be disqualified on account of alleged prejudice against the party making the motion in the first instance, or in favor of the adverse party, unless such judge shall admit and hold that it is then a fact that the judge does not stand fair and impartial between the parties and if judge shall hold, rule and adjudge that does stand fair and impartial as between the parties and their respective interest, shall cause ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of judge may be reviewed by the appellate court as are other rulings of the trial court. Same as prior rule. If by reason of death or disability the judge before whom a trial has commenced is unable to proceed with the trial, or post-trial proceedings, another judge, certifying that he has with the case, may proceed with the disposition of the case. New. Follows ABA Standard 4.3, Trial by Jury. Inserted to provide for substitution of trial judge in specified instances. (a) The tate or the defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge. (b) Every motion for change of venue shall be in writing and be accompanied by: (1) ffidavits of movant and or more other persons setting forth facts on which the motion is based; and (2) certificate by the movant's counsel that the motion is made in good faith. (c) A motion for change of venue shall be filed no less than 10 days before the time the case is called for trial unless good cause is shown for failure to file within such time. (d) The court shall consider the affidavits filed by all parties and receive evidence on every issue of fact necessary to its decision. If the court grants the motion it shall make an order removing the cause to the court having jurisdiction to try such offense in some other convenient county where a fair and impartial trial can be had. (e) If the defendant is in custody, the order shall direct that be forthwith delivered to the custody of the sheriff of the county to which the cause is removed. (f) The clerk shall enter on the minutes the order of removal and transmit to the court to which the cause is removed a certified copy of the order of removal and of the record and proceedings and of the undertakings of the witnesses and the accused. (g) When the cause is removed to another court the witnesses who have entered into undertakings to appear at the trial shall, on notice of such removal, attend the court to which the cause is removed at the time specified in the order of removal. A failure to so attend shall work a forfeiture of the undertaking. (h) If there are several defendants and an order is made removing the cause on the application of one or more but not all of them, the other defendants shall be tried and all proceedings had against them in the county in which the cause is pending in all respects as if no order of removal had been made as to any defendant. (i) The court to which the cause is removed shall proceed to trial and judgment therein as if the cause had originated in court. If it is necessary to have any of the original pleadings or other papers before court, the court from which the cause is removed shall at any time on application of the prosecuting attorney or the defendant order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. (j) The prosecuting attorney of the court to which the cause is removed may amend the information, or file a new information, and such new information shall be entitled in the county in which the trial is had, but the allegations as to the place of commission of the crime, shall refer to the county in which the crime was actually committed. Same as prior rule. In all criminal prosecutions the accused may be sworn as a witness in own behalf and shall in case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself , nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except own, shall be entitled to the concluding argument before the jury. Same as prior rule. The committee considered he Florida Bar proposed amendment to this rule, but makes no recommendation with respect thereto. A defendant may in writing waive a jury trial with the consent of the tate. Changes former rule by deleting "the approval of the Court," thus making trial by judge mandatory where both parties agree. The committee felt that the matter of withdrawal of a waiver was a matter within the inherent discretion of the trial judge and that no rule is required. Twelve persons shall constitute a jury to try all capital cases, and persons shall constitute a jury to try all other criminal cases. Same as prior rule. (a) The court may direct that jurors, in addition to the regular panel, be called and impanelled to sit as alternate jurors. Alternate jurors, in the order in which they are impanelled shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as the principal jurors. Except as hereinafter provided regarding capital cases, an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict. (b) At the conclusion of the guilt or innocence phase of the trial, each alternate juror will be excused with instructions to remain in the courtroom. The jury will then retire to consider its verdict, and each alternate will be excused with appropriate instructions that may have to return for an additional hearing should the defendant be convicted of a capital offense. Same as prior rule. This rule clarifies any ambiguities as to what should be done with alternate jurors at the conclusion of a capital case and whether they should be available for the penalty phase of the trial. The change specifies that they be instructed as to any further participation until the other jurors who are deliberating on guilt or innocence are out of the courtroom, in order not to influence the deliberating jurors or in any way convey that the trial judge feels that a capital conviction is imminent. Upon request any party shall be furnished by the clerk of the court with a list containing names and addresses of prospective jurors summoned to try the case together with copies of all jury questionnaires returned by prospective jurors. ABA Standard 2.2. The furnishing of such a list should result in considerable time being saved at voir dire. Also includes those questionnaires authorized by 40.101 although the statute itself provides for such disclosure. The tate or defendant may challenge the panel. A challenge to the panel may be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless otherwise ordered by the court. A challenge to the panel shall be in writing and shall specify the facts constituting the ground of the challenge. Challenges to the panel shall be tried by the court. Upon the trial of a challenge to the panel the witnesses may be examined on oath by the court and may be so examined by either party. If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called. Same as prior ule 3.300; order of rule changed to improve chronology. (a) The prospective jurors shall be sworn collectively or individually, as the court may decide. The form of oath shall be as follows: "Do you solemnly swear (or affirm) that you will answer truthfully all questions asked of you as prospective jurors, so help you God?" If any prospective juror affirms, the clause "o help you God" shall be omitted. (b) The court may then examine each prospective juror individually or may examine the prospective jurors collectively. Counsel for both tate and defendant shall 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 right of the parties to conduct an examination of each juror orally shall be preserved. (c) If, after the examination of any prospective juror, the court is of the opinion that juror is not qualified to serve as a trial juror, the court does not excuse juror, from the trial of the cause. If, however, the court does not excuse juror, either party may then challenge juror, as provided by law or by these rules. (a) The language relating to competence to serve as jurors deleted as superfluous, (c) amended for clarification by inserting the clause "that such juror is not qualified to serve as a trial juror" for the clause "that such juror is incompetent." As to examination by parties, this brings ule 3.300(b) into conformity with Florida Rule of Civil Procedure 1.431(b). This ule also allows the court to examine each prospective juror individually or collectively. The tate or defendant may challenge an individual prospective juror before the juror is sworn to try the cause; except that the court may, for good cause, permit to be made after the juror is sworn, but before any evidence is presented. Prior rule amended only by deleting some language felt by the committee to be superfluous. n the motion of any party, all challenges shall be addressed to the court outside the hearing of the jury in a manner selected by the court so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge, if for cause. With the exception of "Upon the motion of any party," the language is taken directly from Florida Rule of Civil Procedure 1.431(3). This ule had no counterpart in the criminal rules. If a challenge for cause of an individual juror sustained, juror shall be discharged from the trial of the cause. If a peremptory challenge to an individual juror made, juror shall be discharged likewise from the trial of the cause. Same as prior rule. Each party shall be allowed the following number of peremptory challenges: () Ten, if the offense charged is punishable by death or imprisonment for life () Six, if the offense charged is a felony not punishable by death or imprisonment for life () Three, if the offense charged is a misdemeanor () If or more defendants are jointly tried, each defendant shall be allowed the number of peremptory challenges specified above, and in such case the tate shall be allowed as many challenges as are allowed to all of the defendants () If an indictment or information contains or more counts or if or more indictments or informations are consolidated for trial, the defendant shall be allowed the number of peremptory challenges would be permissible in a single case, but in the interest of justice the judge may use judicial discretion in extenuating circumstances to grant additional challenges to the accumulate maximum based on the number of charges or cases included when it appears that there is a possibility that the tate or the defendant may be prejudiced. The tate and the defendant shall be allowed an equal number of challenges. () If or alternate jurors are called, each party is entitled to peremptory challenge, in addition to those otherwise allowed by law, for each alternate juror so called. The additional peremptory challenge may be used only against the alternate juror and the other peremptory challenges allowed by law shall not be used against the alternate juror. Substantially same as prior rule; introductory language modernized. This proposed rule amends ule 3.350(e) to allow the defendant and the tate an equal number of peremptory challenges and to permit the court to grant additional challenges to both parties where it appears that the tate would otherwise be prejudiced. (a) If, at the close of the evidence for the tate or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the motion of the prosecuting attorney or the defendant shall, enter a judgment of acquittal. (b) A motion for judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant, but after introduction of evidence by the defendant, the motion for judgment of acquittal must be renewed at the close of all the evidence. motion must fully set forth the grounds on which it is based. (c) If the jury returns a verdict of guilty or is discharged without having returned a verdict, the defendant's motion may be made or renewed within days after the reception of a verdict and the jury is discharged or such further time as the court may allow. (a) and (b) same as prior ule 3.660, transferred to better follow trial chronology. (c) provides time period for renewal of motion and is new. This brings ule 3.380(c) into conformity with Florida Rule of Civil Procedure 1.480(b) as it relates to the number of days (10) within which a party, either in a civil or criminal case, may make or renew motion for judgment of acquittal. There appears to be no sound reason for the distinction between the criminal rule (4 days or such greater time as the court may allow, not to exceed 15 days) and the civil rule (10 days). (a) The presiding judge shall charge the jury only on the law of the case at the conclusion of argument of counsel. Except in capital cases, the judge shall not instruct the jury on the sentence may be imposed for the offense for which the accused is on trial. (b) Every charge to a jury shall be orally delivered, and charges in capital cases shall, and in the discretion of the court in cases may also be in writing. All written charges shall be filed in the cause. Charges in other than capital cases shall be taken by the court reporter and, if the jury returns a verdict of guilty, transcribed by the court reporter and filed in the cause. (c) At the close of the evidence, or at such earlier time during the trial as the court reasonably directs any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action on the request and of the instructions will be given prior to their argument to the jury. (d) No party may appeal the giving or failure to give an instruction unless objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which objects and the grounds of objection. Opportunity shall be given to make the objection out of the presence of the jury. (e) When an objection is made to the giving or failure to give an instruction, no exception need be made to the court's ruling thereon in order to have ruling reviewed, and the grounds of objection and ruling thereon shall be taken by the court reporter and if the jury returns a verdict of guilty, transcribed by and filed in the cause. The ommittee adopted , Florida Statutes, with only minor modification as to terminology. To assist the jury in understanding the jury instructions. The court shall instruct the jurors to select one of their number fore. Same as former ule 3.390. After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them additional instructions or may order testimony read to them. instructions shall be given and testimony read only after notice to the prosecuting attorney and to counsel for the defendant. This is the same as former ule 3.410, except that the former rule made it mandatory for the trial judge to give additional instructions upon request. The ommittee feels that this should be discretionary. The court may recall the jurors after they have retired to consider their verdict to give them additional instructions or to correct any erroneous instructions given them. additional or corrective instructions may be given only after notice to the prosecuting attorney and to counsel for the defendant. Same as former rule. 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 fore if an agreement has been reached on a verdict. If the fore answers in the affirmative, the judge shall call on 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 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. Same as prior rule. n the motion of either the tate or the defendant or its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict. If a juror dissents, the court must direct that the jury be sent back for further consideration f there no dissent the verdict shall be entered of record and the jurors discharged. owever, no motion to poll the jury shall be entertained after the jury is discharged or the verdict recorded. Same as prior rule. The court may, with the consent of the prosecuting attorney and the defendant, direct the jurors that if they should agree upon a verdict during a temporary adjournment of the court, the fore and each juror shall sign the same, and verdict shall be sealed in an envelope and delivered to the officer having charge of the jury, after which the jury may separate until the next convening of the court. When the court authorizes the rendition of a sealed verdict it shall admonish the jurors not to make any disclosure concerning itor to speak with other persons concerning the cause, until their verdict shall have been rendered in open court. The officer shall, forthwith, deliver the sealed verdict to the clerk. When the jurors have reassembled in open court, the envelope shall be opened by the court or clerk and the same proceedings shall be had as in the receiving of other verdicts. Former ule 3.480 has been deleted, its substance now contained in ule 3.470. Substantially same as former ules 3.470 and 3.480. If different offenses are charged in the indictment or information on which the defendant is tried, the jurors shall, if they convict the defendant, make it appear by their verdict on which counts or of which offenses they find guilty. Amended to modernize the language of the rule. Substantially the same as prior rule. The tate need not elect between inconsistent counts, but the trial court shall submit to the jury verdict forms as to each count with instructions applicable to returning verdicts from the inconsistent counts. Although there appears to be no rule or statute relating to "election," many Florida cases refer to the fact that the trial court is required to make the tate elect, before or during trial, between inconsistent counts. Many times the circumstances show conclusively that the accused is guilty of one or the other of inconsistent offenses. Since the evidence is then inconsistent with any reasonable hypothesis of innocence, the circumstantial rule is satisfied and the evidence should support a verdict of guilty as to either offense. In such a case the tate should not be required to elect. This new rule is intended to lead to uniformity throughout the tate on this issue and is more consonant with ule 3.140(k)(5). n an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of: (a) an attempt to commit offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support attempt and the only evidence proves a completed offense (b) any offense as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence. Same as prior rule except that references to affidavit have been deleted. On the trial of or more defendants jointly the jurors may render a verdict as to any defendant in regard to whom the jurors agree. Same as prior rule. If a verdict is so defective that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict of an offense for which judgment could be entered under the indictment or information on which the defendant is tried, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and on what count or counts they intended to acquit or convict . If the jury persist in rendering defective verdict the court shall declare a mistrial. Same as prior rule. If a verdict of guilty is rendered the defendant shall, if in custody, be remanded f is at large on bail may be taken into custody and committed to the proper official or remain at liberty on the same or additional bail as the court may direct. After the jurors have retired to consider their verdict the court shall discharge them from the cause when: (a) heir verdict has been received; (b) on the expiration of such time as the court deems proper, the court finds there is no reasonable probability that the jurors can agree on a verdict; (c) necessity exists for their discharge. The court may in any event discharge the jurors from the cause if the prosecuting attorney and the defendant consent to discharge. Same as prior rule. No irregularity in the rendition or reception of a verdict may be raised unless it is raised before the jury is discharged. No irregularity in the recording of a verdict shall affect its validity unless the defendant was in fact prejudiced by irregularity. Same as prior rule. (a) A motion for new trial or in arrest of judgment, or both, may be made within days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the -day period and in the discretion of the court at any other time before the motion is determined. (b) When the defendant has been found guilty by a jury or by the court, motion may be dictated into the record, if a court reporter is present, and may be argued immediately after the return of the verdict or the finding of the court. The court may immediately rule on the motion. (c) motion may be in writing, filed with the clerk; it shall state the grounds on which it is based. A copy of a written motion shall be served on the prosecuting attorney. When the court sets a time for the hearing thereon, the clerk may notify counsel for the respective parties or the attorney for the defendant may serve notice of hearing on the prosecuting officer. (d) Until motion is disposed of, a defendant who is not already at liberty on bail shall remain in custody and not be allowed liberty on bail unless the court on good cause shown (if the offense for which the defendant is convicted is bailable) permit the defendant to be released on bail until the motion is disposed of. If the defendant is already at liberty on bail is deemed by the court to be good and sufficient, it may permit to continue at large on such bail until the motion for new trial is heard and disposed of. . Substantially the same as prior rule. This brings ule 3.590(a) into conformity with Florida Rule of Civil Procedure 1.530(b) as it relates to the time within which a motion for new trial or in arrest of judgment may be filed. It also allows the defendant in a criminal case the opportunity to amend motion. The opportunity to amend already exists in a civil case. No sound reason exists to justify the disparities in the rules. (a) The court shall grant a new trial if any of the following grounds is established (1) The jurors decided the verdict by lot (2) The verdict is contrary to law or the weight of the evidence (3) ew and material evidence, if introduced at the trial would probably have changed the verdict or finding of the court, and the defendant could not with reasonable diligence have discovered and produced the trial, has been discovered. (b) The court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby (1) The defendant was not present at any proceeding at which presence is required by these rules (2) The jury received any evidence out of court, other than that resulting from an authorized view of the premises (3) The jurors, after retiring to deliberate upon the verdict, separated without leave of court (4) ny jurors was guilty of misconduct (5) he prosecuting attorney was guilty of misconduct (6) The court erred in the decision of any matter of law arising during the course of the trial (7) The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant (8) or any other cause not due to the defendant's own fault, did not receive a fair and impartial trial. (c) When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on motion by affidavit or otherwise. Same as prior rule. The court shall grant a motion in arrest of judgment only on or more of the following grounds: The indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction The court is without jurisdiction of the cause The verdict is so uncertain that it does not appear therefrom that the jurors intended to convict the defendant of an offense of which could be convicted under the indictment or information under which was tried The defendant was convicted of an offense for which could not be convicted under the indictment or information under which was tried. Same as prior rule. References to trial affidavit deleted. When the offense is divided into degrees or necessarily includes lesser offenses and the court, on a motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error. Same as prior rule. The court in its discretion may sentence the defendant either before or after the filing of a motion for new trial or arrest of judgment. Same as prior rule. (a) When a new trial is granted, the new trial shall proceed in all respects as if no former trial had except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense than that of which was convicted. (b) The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the tate, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the must show due diligence in attempting to procure the attendance of witnesses at the trial and must show that the witness is not absent by consent or connivance of party. Same as prior rule. If the defendant is found guilty, a judgment of guilty and, if has been acquitted, a judgment of not guilty shall be rendered in open court and in writing, signed by the judge, filed, and recorded. However, the judge may withhold adjudication of guilt if places the defendant on probation. When a judge renders a final judgment of conviction, withholds adjudication of guilt after a verdict of guilty, imposes a sentence, grants probation or revokes probation, shall forthwith inform the defendant concerning rights of appeal therefrom, including the time allowed by law for taking an appeal. Same as prior rule . If a verdict is rendered from which it can be clearly understood that the jurors to acquit the defendant, a judgment of not guilty shall be rendered thereon even though the verdict is defective. No judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding of guilt of the defendant. Same as prior rule. When a judgment of not guilty is entered, the defendant, if in custody, shall be immediately discharged unless is in custody on some other charge f is at large on bail, sureties shall be exonerated and if money or bonds have been deposited as bail, money or bonds shall be refunded. Same as prior rule. (a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, (Fla. 1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and person's civil rights have not been restored or if other felony charges are pending against and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made. (b) In any case in which the court has the discretion to release the defendant pending review of the conviction and after the defendant's conviction, denies release, it shall state in writing its reasons for denial. (c) An order by a trial court denying bail to a person pursuant to the provisions of (a) may be appealed as a matter of right to an appellate court and appeal shall be advanced on the calendar of the appellate court for expeditious review. (d) If the defendant is released after conviction and on appeal, the condition shall be: (1) will duly prosecute appeal; (2) will surrender himself in execution of the judgment or sentence on its being affirmed or modified or on the appeal being dismissed; or in case the judgment is reversed and the cause remanded for a new trial, will appear in the court to which cause may be remanded for a new trial, that will appear in the court to which cause may be remanded and submit to the orders and process thereof and will not depart the jurisdiction of the court without leave. (e) The court shall approve the sufficiency and adequacy of the bond, its security and sureties, prior to the release of the defendant. Ch 76-138, 2, Laws of Florida, by appropriate vote, repealed the provisions of ule 3.691, insofar as they were inconsistent with the legislative act. This rule has been amended to include the provisions of Ch 76-138, Laws of Florida. (a) The term sentence means the pronouncement by the ourt of the penalty imposed on a defendant for the offense of which has been adjudged guilty. (b) Every sentence or other final disposition of the case shall be pronounced in open court. The final disposition of every case shall be entered in the minutes in courts in which minutes are kept and shall be docketed in courts do not maintain minutes. (c) In those cases it is necessary that sentence be pronounced by a judge other than the judge who presided at trial or accepted the plea, the sentencing judge shall not pass sentence until acquainted with what transpired at the trial or the facts, including any plea discussions, concerning the plea and the offense. (a) and (b) substantially the same as in former ule. (c) added to emphasize that the sentencing procedure should be conducted by the trial judge or the judge taking the plea. The rule makes provision for emergency situations whe such judge is unavailable. a This rule is to be used in conjunction with forms 3.988(a)-(i). b The purpose of sentencing guidelines is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process. The guidelines represent a synthesis of current sentencing theory and historic sentencing practices throughout the state. Sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense-related and offender-related criteria and in defining their relative importance in the sentencing decision. The sentencing guidelines embody the following principles: 1 Sentencing should be neutral with respect to race, gender, and social and economic status. 2 The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerations continue to be desired goals of the criminal justice system but must assume a subordinate role. 3 The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense. 4 The severity of the sanction should increase with the length and nature of the offender's criminal history. 5 The sentence imposed by the sentencing judge should reflect the length of time to be served, shortened only by the application of gain time. 6 While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made circumstances or factors reasonably justify the aggravation or mitigation of the sentence. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. 7 Because the capacities of state and local correctional facilities are finite, use of incarcerative sanctions should be limited to those persons convicted of more serious offenses or those who have longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence. c Offenses have been grouped into offense categories encompassing the following statutes: Category 1: Murder, manslaughter: Chapter 782 (except subsection (1)(a)), subsection (3)(c)3, and section 327.351(2) Category 2: Sexual offenses: Chapters 794 and 800, section , and section Category 3: Robbery: Section Category 4: Violent personal crimes: Chapters 784 and 836 section and subsection 381.411(4) Category 5: Burglary: Chapter 810, section , and subsection (3) Category 6: Thefts, forgery, fraud: Sections and , chapters 322 and 409, section 370.142, section , chapter 443, section 493.3175, sections , and , chapter 509, subsections (3) and 585.85(2), section , and chapters 812 (except section ), 815, 817, 831, and 832 Category 7: Drugs: Chapter 893 Category 8: Weapons: Chapter 790 and section Category 9: All other felony offenses d 1 One guideline scoresheet shall be utilized for each defendant covering all offenses pending before the court for sentencing. The state attorney's office will prepare the scoresheets and present them to defense counsel for review as to accuracy in all cases unless the judge directs otherwise. The sentencing judge shall approve all scoresheets. 2 "Conviction" means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. 3 "Primary offense" is defined as offense at conviction , when scored on the guidelines scoresheet, recommends the most severe sanction. In the case of multiple offenses, the primary offense is determined in the following manner: A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the "primary offense at conviction" with the other offenses at conviction scored as "additional offenses at conviction." The guidelines scoresheet recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines. 4 All other offenses for which the offender is convicted and are pending before the court for sentencing at the same time shall be scored as additional offenses based on their degree and the number of counts of each. 5 "Prior record" refers to any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense. Prior record includes all prior Florida, federal, out-of-state, military, and foreign convictions, as well as convictions for violation of municipal or county ordinances that bring within the municipal or county code the violation of a state statute or statutes. Entries in criminal histories show no disposition, disposition unknown, arrest only, or other nonconviction disposition shall not be scored. When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida tatute. When unable to determine whether an offense at conviction is a felony or a misdemeanor, the offense should be scored as a misdemeanor. the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony. Prior record shall include criminal traffic offenses, which shall be scored as misdemeanors. Convictions do not constitute violations of a parallel or analogous state criminal statute shall not be scored. An offender's prior record shall not be scored if the offender has maintained a conviction-free record for a period of 10 consecutive years from the most recent date of release from confinement, supervision or sanction, whichever is later, to the date of the primary offense. All prior juvenile dispositions are the equivalent of convictions as defined in (d)(2), occurring within 3 years of the commission of the primary offense and would have been criminal if committed by an adult, shall be included in prior record. 6Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs. Legal status points are to be assessed where these forms of legal constraint existed at the time of the commission of offenses scored as primary or additional offenses at conviction. Legal status points are to be assessed only once whether there are one or more offenses at conviction. 7 Victim injury shall be scored for each victim physically injured during a criminal episode or transaction, and for each count resulting in such injury whether there are one or more victims. 8 The recommended sentences provided in the guideline grids are assumed to be appropriate for the composite score of the offender. A range is provided to permit some discretion. The permitted ranges allow the sentencing judge additional discretion when the particular circumstances of a crime or defendant make it appropriate to increase or decrease the recommended sentence without the requirement of finding reasonable justification to do so and without the requirement of a written explanation. 9 For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed. 10 If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed. 11 Departures from the recommended or permitted guideline sentence should be avoided unless there are circumstances or factors reasonably justify aggravating or mitigating the sentence. Any sentence outside the permitted guideline range must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction the instant offenses for which convictions have not been obtained. 12 A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given. 13 Community control is a form of intensive supervised custody in the community involving restriction of the freedom of the offender. When community control is imposed, it shall not exceed the term provided by general law. 14 Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. 15 Categories 3, 5, and 6 contain an additional factor to be scored under the heading of Prior Record: Prior convictions for similar offenses. Prior convictions scored under this factor should be calculated in addition to the general prior record score. Scoring is limited to prior felony convictions included within the category. (a) The operation of this rule is not intended to change the law or requirements of proof as regards sentencing. (b) These principles are binding on the sentencing court. (c) Only category is proper in any particular case. Category 9, "All Other Felony Offenses," should be used only when the primary offense at conviction is not included in another, more specific category. The guidelines do not apply to capital felonies. Inchoate offenses are included within the category of the offense attempted, solicited, or conspired to, as modified by 777. The form appearing at Florida Rule of Criminal Procedure 3.988(a) has been revised to incorporate a point value for inclusion in the prior record factor utilized in the determination of recommended sentence by scoring each prior conviction under section , Florida Statutes (Supp. 1984), or section 316.1931, Florida Statutes (Supp. 1984), or section 327.351, Florida Statutes (Supp. 1984), at a value of 32 points. This point value will be applied only the offender is convicted for a violation of section (3)(c)3, Florida Statutes (Supp. 1986), or section 327.351, Florida Statutes (Supp. 1984), the operation of a motor vehicle or vessel by the offender while intoxicated as defined in section (1), Florida Statutes (Supp. 1986), or section 327.351(1), Florida Statutes (Supp. 1984), results in the death of any human being and the scoresheet utilized in sentencing is the form appearing at Florida Rule of Criminal Procedure 3.988(a). For purposes of determining a prior conviction for a violation of the above enumerated statute, a prior conviction for violation of section 316.1931 or section or former section 860.01 or former section 316.028, or a previous conviction for any substantially similar alcohol-related or drug-related traffic offense outside this state, shall also be considered a prior conviction. (d)(1) Ultimate responsibility for suring that scoresheets are accurately prepared rests with the sentencing court. Due to ethical considerations, defense counsel may not be compelled to submit a scoresheet. Probation and parole officers may be directed to compile guidelines scoresheets only when a presentence investigation has been ordered. The forms for calculating the guidelines are forms 3.988(a)-(i). (d)(2) This definition applies to both instant offense and prior record scoring. (d)(3) The proper offense category is identified on determination of the primary offense. When the defendant is convicted of violations of more than unique statute, the offenses are to be sorted by statutory degree. (d)(4) No points shall be scored for lesser and included offenses. In the event of multiple counts of the same distinct offense and degree of felony being scored as primary offense, it shall be scored as additional counts of the primary offense. All other offenses for which the defendant is convicted are pending before the court for sentencing shall be scored as additional offenses. (d)(5) Each separate prior felony and misdemeanor conviction in an offender's prior record amounts to a violation of Florida law shall be scored, unless discharged by the passage of time. Any uncertainty in the scoring of the defendant's prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge. Prior record includes all offenses for which the defendant has been found guilty, regardless of whether adjudication was withheld or the record has been expunged. Juvenile dispositions, with the exclusion of status offenses, are included and considered along with adult convictions by operation of this provision. However, each separate adjudication is discharged from consideration if 3 years have passed between the date of disposition and the commission of the instant offense. For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as "prior record" and not as "additional offense." (d)(7) This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma. However, if the victim injury is the result of a crime for which the defendant has been acquitted, it shall not be scored. (d)(8) The first guideline cell in each category (any nonstate prison sanction) allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any nonincarcerative disposition. Any sentence may include the requirement that a fine be paid. The sentences are found in forms 3.988(a)-(i). (d)(10) If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category. If the offender is sentenced under section (habitual offender), the maximum allowable sentence is increased as provided by the operation of that statute. If the sentence imposed departs from the recommended sentence, the provisions of (d)(11) shall apply. (d)(11) A sentencing judge may depart from the recommended sentence and impose a sentence within permitted range without giving reasons therefor. If a sentencing judge departs from the permitted range, reasons for departure shall be articulated at the time sentence is imposed. The written statement shall be made a part of the record, with sufficient specificity to inform all parties, as well as the public, of the reasons for departure. The court is prohibited from considering offenses for which the has not been convicted. Other factors, consistent and not in conflict with the tatement of urpose, may be considered and utilized by the sentencing judge. (d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of 11 are complied with. If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law. (d)(13) Community control is a viable alternative for any state prison sentence less than 24 months without requiring a reason for departure. It is appropriate to impose a sentence of community control to be followed by a term of probation. The total sanction (community control and probation) shall not exceed the term provided by general law. Community control is not an alternative sanction from the recommended range of any nonstate prison sanction unless the provisions of ule 3.701(d)(11) are applied. The purpose of the [1991 revision to ule 3.701(d)(6)] is to clarify the original intent that legal constraint is a status consideration and is not to be considered a function of the number of offenses at conviction. The purpose of the [1991 revision to ule 3.701(d)(7)] is to provide consistency in the scoring of victim injury by scoring each offense at conviction for which victim injury can appropriately be scored, whether committed against a single or multiple victims. (a) Except as provided in (b) the sentencing ourt shall not authorize the commencement of the presentence investigation until there has been a finding of guilt. (b) The sentencing ourt may authorize the commencement of the presentence investigation prior to finding of guilt if: (1) he defendant has consented to such action; and (2) othing disclosed by the presentence investigation comes to the attention of the prosecution, the court or the jury prior to an adjudication of guilt. Upon motion of the defense and prosecution the ourt may examine the presentence investigation prior to the entry of a plea. The rule permits presentence investigations to be initiated prior to finding of guilt. Its purpose is to reduce unwarranted jail time by a defendant who expects to plead guilty and who may well merit probation or commitment to facilities other than prison. The presentence investigation shall not be a public record and shall be available only to the following persons under the following stated conditions: (a) To the sentencing ourt to assist it in determining an appropriate sentence. (b) To persons or agencies having a legitimate professional interest in the information it would contain. (c) To reviewing ourts if relevant to an issue on which an appeal has been taken. (d) To the parties as ule 3.713 provides. Provides for disclosure of the report to the trial court, appropriate agencies of the tate, and ppellate ourts, if needed. (a) The trial judge may disclose any of the contents of the presentence investigation to the parties prior to sentencing. Any information so disclosed to one party shall be disclosed to the opposing party. (b) The trial judge shall disclose all factual material, including but not limited to the defendant's education, prior occupation, prior arrests, prior convictions, military service and the like, to the defendant and the tate a reasonable time prior to sentencing. If any physical or mental evaluations of the defendant have been made and are to be considered for the purposes of sentencing or release, such reports shall be disclosed to counsel for both parties. (c) n motion of the defendant or the prosecutor or on its own motion, the sentencing ourt may order the defendant to submit to a mental or physical examination would be relevant to the sentencing decision. Copies of examination or any other examination to be considered for the purpose of sentencing shall be disclosed to counsel for the parties subject to the limitation of ule . This rule represents a compromise between the philosophy that presentence investigations should be fully disclosed to a defendant and the objection that such disclosure would dry up sources of confidential information and render such report virtually useless. (a) gives the trial judge discretion to disclose any or all of the report to the parties. (b) makes mandatory the disclosure of factual and physical and mental evaluation material only. In this way, it is left to the discretion of the trial judge to disclose to a defendant or counsel any other evaluative material. The udicial discretion should amply protect the confidentiality of those sources who do not wish to be disclosed, while the availability of all factual material will permit to discover and make known to the sentencing court any errors may appear in the report. As soon as practicable after the determination of guilt and after the examination of any presentence reports the sentencing court shall order a sentencing hearing. At the hearing : (a) nform the defendant of the finding of guilt against and of the judgment and ask whether any legal cause to show why sentence should not be pronounced. The defendant may allege and show as legal cause why sentence should not be pronounced only: (1) hat is insane; (2) hat has been pardoned of the offense for which he is about to be sentenced; (3) hat is not the same person against whom the verdict or finding of the court or judgment was rendered; (4) f the defendant is a woman and sentence of death is to be pronounced, that she is pregnant (b) ntertain submissions and evidence by the parties are relevant to the sentence (c) In cases where guilt was determined by plea, inform itself, if not previously informed, of the existence of plea discussions or agreements and the extent to which they involve recommendations as to the appropriate sentence (d)(1) If the accused was represented by a public defender or special assistant public defender, the court shall notify the accused of the imposition of a lien pursuant to section 27.56, Florida Statutes . The amount of the lien shall be given and a judgment entered in that amount against the accused. Notice of the accused's right to a hearing to contest the amount of the lien shall be given at the time of sentence. (2) If the accused requests a hearing to contest the amount of the lien, the court shall set a hearing date within 30 days of the date of sentencing. 3.720(a): Substantially the same as former ule 3.730. 3.720(b): The defendant is to be permitted to challenge factual bases for the sentence believes to be incorrect. Whe possible, submissions should be done informally, but the rule does not preclude an evidentiary hearing if it should be necessary. 3.720(c): Provides for plea discussions to be made a part of the record. Modification of the ule requires a trial judge to adequately inform a defendant of the imposition of a lien for public defender services. A uniform procedure for scheduling hearings to contest liens would reduce the number of petitions from incarcerated defendants at times remote from sentencing. The procedure is designed to complete all lien requirements established by section 27.56, Florida Statutes , before defendants are removed from the jurisdiction of the trial court. Whenever the ourt deems it necessary to do so in order to procure the presence of the defendant before it for the adjudication of guilt or the pronouncement of sentence, or both, when is not in custody, it shall direct the clerk to issue immediately or when directed by the prosecuting attorney a capias for the arrest of defendant. Subsequent capiases may be issued from time to time by direction of the ourt or the prosecuting attorney. Same as prior rule 3.710. When the cause alleged for not pronouncing sentence is that the defendant has been pardoned for the offense for which is about to be sentenced, the court, if necessary, shall postpone the pronouncement of sentence for the purpose of hearing evidence on allegation. If the ourt decides that allegation is true, it shall discharge from custody unless is in custody on some other charge. If, however, it decides that allegation is not true, it shall proceed to pronounce sentence. Same as prior rule. When the cause alleged for not pronouncing sentence is that the person brought before the ourt to be sentenced is not the same person against whom the verdict, finding of the ourt or judgment was rendered, the ourt, if necessary, shall postpone the pronouncement of sentence for the purpose of hearing evidence on allegation. If the ourt decides that allegation is true, it shall discharge person from custody unless is in custody on some other charge. If, however, it decides that allegation is not true, it shall proceed to pronounce sentence. Same as prior rule. When pregnancy of a female defendant is alleged as the cause for not pronouncing the death sentence, the ourt shall postpone the pronouncement of sentence until after it has decided the truth of allegation. If necessary in order to arrive at such a decision, it shall immediately fix a time for a hearing to determine whether defendant is pregnant and shall appoint not exceeding competent disinterested physicians to examine the defendant as to her alleged pregnancy and to testify at the hearing as to whether she is pregnant. Other evidence regarding whether defendant is pregnant may be introduced at the hearing by either party. If the ourt decides that the defendant is not pregnant, it shall proceed to pronounce sentence. If it decides that she is pregnant, it shall commit her to prison until it appears that she is not pregnant and shall then pronounce sentence upon her. Same as prior rule. (a) In all proceedings based on section , Florida Statutes , the state and defendant will be permitted to present evidence of an aggravating or mitigating nature, consistent with the requirements of the statute. Each side will be permitted to cross-examine the witnesses presented by the other side. The state will present evidence first. (b) The trial judge shall permit rebuttal testimony. (c) Both the state and the defendant will be given an equal opportunity for argument, each being allowed one argument. The state will present argument first. This is a new rule designed to create a uniform procedure will be consistent with both ection , Florida Statutes and State v. Dixon, (Fla.1973). (a) Pronouncement and imposition of sentence of imprisonment shall not be made on a defendant who is to be placed on probation regardless of whether defendant has been adjudicated guilty. An order of the court placing a person on probation or community control shall place the probationer under the authority of the Department of Corrections to be supervised as provided by law. The court shall specify the length of time during which the defendant is to be supervised. (b) When a probationer or a community controllee is brought before a court charged with a violation of probation or community control, the court shall advise of charge and if the charge is admitted to be true may enter an order revoking, modifying or continuing the probation or community control. If violation of probation or community control is not admitted by the probationer or community controllee, the court may commit or release with or without bail to await further hearing or it may dismiss the charge of violation of probation or community control. If the charge is not admitted by the probationer or community controllee and if it is not dismissed, the court, as soon as practicable, shall give the probationer or community controllee an opportunity to be fully heard in person, by counsel, or both. After hearing, the court may enter an order revoking, modifying or continuing the probation or community control. Following a revocation of probation or community control, the trial court shall adjudicate the defendant guilty of the crime forming the basis of probation or community control if no such adjudication has been made previously. Pronouncement and imposition of sentence then shall be made upon defendant. (a) of former rule deleted, as its substance is now contained in ules 3.710, 3.711, and 3.713. Former (b) and (c) are now renumbered (a) and (b) respectively. This amendment changes wording to conform with current responsibilities of the Department of Corrections to supervise a person placed on probation or community control and brings community control within the scope of the rule. (a) A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet. (b) A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within days after such imposition, or within days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. This of the ule shall not, however, be applicable to those cases in which the death sentence is imposed or those cases the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion. Same as prior rule. This amendment provides a uniform time within which a defendant may seek a reduction in sentence and excludes death and minimum mandatory sentences from its operation. Permits the sentencing judge, within the -day time period, to modify as well as to reduce the sentence originally imposed. Such modification would permit the judge to impose, in the modification, any sentence which could have been imposed initially, including split sentence or probation. The trial judge may not, in such modification, increase the original sentence. pronouncement of a sentence imposing a penalty other than a fine only or death, the court shall, unless the execution of the sentence is suspended or stayed, and, in such case, on termination of the suspension or stay, forthwith commit the defendant to the custody of the sheriff under a commitment to which shall be attached a certified copy of the sentence and, unless both are contained in the same instrument if the sentence imprisonment in the state prison, a certified copy of the judgment of conviction and a certified copy of the indictment or information, and the sheriff shall thereupon, within a reasonable time, if is not the proper official to execute the sentence, transfer the defendant, together with the commitment and attached certified copies, to the custody of the official whose duty it is to execute the sentence and shall take from person a receipt for the defendant and make a return thereof to the court. Same as prior rule. (a) A person under sentence of death shall not be executed while insane to be executed. (b) A person under sentence of death is insane for purposes of execution if person lacks the mental capacity to understand the fact of the impending execution and the reason for it. (c) No motion for a stay of execution pending hearing, based on grounds of the prisoner's insanity to be executed, shall be entertained by any ourt until such time as the Governor of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida Statutes. (d) determination of the Governor of Florida, subsequent to the signing of a death warrant for a prisoner under sentence of death and pursuant to the applicable Florida Statutes relating to insanity at time of execution, that the prisoner is sane to be executed, counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner's insanity to be executed. (1) The motion shall be filed in the ircuit ourt of the ircuit in which the execution is to take place and shall be heard by one of the judges of that ircuit or such other judge as shall be assigned by the hief ustice of the upreme ourt to hear the motion. The tate ttorney of the ircuit shall represent the State of Florida in any proceedings held on the motion. (2) The motion shall be in writing and shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the prisoner is insane to be executed. (3) Counsel for the prisoner shall file, along with the motion, all reports of experts were submitted to the overnor pursuant to the statutory procedure for executive determination of sanity to be executed. If any of evidence is not available to counsel for the prisoner, shall attach to the motion an affidavit so stating, with an explanation of why evidence is unavailable. (4) Counsel for the prisoner and the tate may submit such other evidentiary material and written submissions including reports of experts on behalf of the prisoner as shall be relevant to determination of the issue. (5) A copy of the motion and all supporting documents shall be served on the Florida Department of Legal Affairs and the tate ttorney of the ircuit in which the motion has been filed. (e) If the circuit judge, upon review of the motion and submissions, has reasonable grounds to believe that the prisoner is insane to be executed, the judge shall grant a stay of execution and may order further proceedings which may include a hearing pursuant to rule 3.812. This rule is not intended to preclude the Office of the Attorney General or the tate ttorney of the ircuit in which the trial was held from appearing on behalf of the State of Florida under circumstances when permitted by law. (a) The hearing on the prisoner's insanity to be executed shall not be a review of the overnor's determination, but shall be a hearing de novo. (b) At the hearing the issue shall be whether the prisoner presently meets the criteria for insanity at time of execution, that is, whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason for it. (c) The ourt may do of the following as may be appropriate and adequate for a just resolution of the issues raised: (1) equire the presence of the prisoner at the hearing (2) ppoint no more than 3 disinterested mental health experts to examine the prisoner with respect to the criteria for insanity to be executed and to report their findings and conclusions to the ourt (3) nter such other orders as may be appropriate to effectuate a speedy and just resolution of the issues raised. At hearings held pursuant to this rule, the ourt may admit such evidence as the ourt deems relevant to the issues, including but not limited to the reports of expert witnesses, and the ourt shall not be strictly bound by the rules of evidence. If, at the conclusion of the hearing, the ourt shall find, by clear and convincing evidence, that the prisoner is insane to be executed, the ourt shall enter its order continuing the stay of the death warrant otherwise, the ourt shall deny the motion and enter its order dissolving the stay of execution. (a) When a defendant has been sentenced, and is actually serving sentence, and has not appealed from the judgment or sentence, but seeks release from imprisonment by habeas corpus proceedings, and the writ has been discharged after it has been issued, the custody of the prisoner shall not be disturbed, pending review the appellate court. (b) Pending review of a decision discharging a prisoner on habeas corpus, shall be discharged on bail, with sureties to be approved as other bail bonds are approved for appearance to answer and abide by the judgment of the appellate court. Same as prior rule A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against and inquire as to whether has any cause to show why he should not be adjudged guilty of contempt by the ourt and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court. Same as prior rule. A criminal contempt except as provided in concerning direct contempts, shall be prosecuted in the following manner: The judge, own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring to appear before the court to show cause why should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant's omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases. The defendant may be arraigned at the time of the hearing, or prior thereto request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his own defense. All issues of law and fact shall be heard and determined by the judge. If the contempt charged involves disrespect to or criticism of a judge shall disqualify himself from presiding at the hearing. Another judge shall be designated by the hief ustice of the upreme ourt. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against and inquire as to whether has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant. Same as prior rule. A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released on the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or aws of the United States or of the State of Florida, that the court was without jurisdiction to enter judgment or to impose sentence, that the sentence was in excess of the maximum authorized by law, that plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack may move the court entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence. A motion to vacate a sentence 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 years after the judgment and sentence become final unless it alleges (1) the facts on which the claim is predicated were unknown to the movant or 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. Any person whose judgment and sentence became final prior to January 1, 1985, shall have until January 1, 1987, to file a motion in accordance with this rule. The motion shall be under oath and include : he judgment or sentence under attack and the court which rendered the same; hether there was an appeal from the judgment or sentence and the disposition thereof; hether a previous motion has been filed, and if so, how many; f a previous motion or motions have been filed the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions he nature of the relief sought brief statement of the facts (and other conditions) relied on in support of the motion. This rule does not authorize relief based on grounds could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. n filing of a ule 3.850 motion, the clerk shall forward the motion and file to the court. If the motion 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 denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall order the tate ttorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available state remedies including any other motion under this rule. The answer shall also state whether an evidentiary hearing was accorded the movant. If the motion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment and shall discharge or resentence grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine motion without requiring the production of the prisoner at the hearing. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for relief shall include a statement that the movant has the right to appeal within days of the rendition of the order. The prisoner may file a motion for rehearing of any order denying a motion under this rule within days of the date of service of the order. The clerk of the court shall promptly serve on the prisoner a copy of any order denying a motion for relief or denying a motion for rehearing noting thereon the date of service by an appropriate certificate of service. An application for writ of habeas corpus behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court sentenced or that court has denied relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of detention. Same as prior rule. Former ule 3.860, previously deleted, now found in rticle 18, The Florida Bar Integration Rules. Nothing has been taken from proposed ule 3.850. Additions have been made. The committee proceeded on the theory that generally the motions coming under the purview of the rule were filed by prisoners and will be considered ex parte. The proposed amendment contemplates that in those cases where the trial court found the movant entitled to some relief, the tate ttorney would be noticed and given an opportunity to be heard. The rule further contemplates that if the appellate court reverses, it would do so with directions to conduct a hearing with notice to all parties. (a), (b), (c), (d), (e) The committee was of the opinion that the motion should contain the minimum prerequisites indicated in the lettered portions to permit the trial court to quickly ascertain whether or not the motion was entitled to consideration and if not, provide for its return to the movant as unacceptable. This procedure is similar to ederal rules dealing with motions. The committee perceives that denial of a motion will either be based on the insufficiency of the motion itself or on the basis of the file or record which the trial court will have before it. The proposal provides for a simplified expeditious disposition of appeals in such cases. It is to be noted, however, that in those cases where the record is relied on as a basis for denial of the motion, it may in exceptional cases involve a substantial record but the advantages of this procedure seem to justify coping with the unusual or exceptional case. It is the opinion of the committee that in any order of denial based on the insufficiency of the motion or on the face of the record, set forth specifically the basis of the court's ruling with sufficient specificity to delineate the issue for the benefit of appellate courts. The committee thought that the provision permitting ex parte denial of a motion based on the face of the record was appropriate inasmuch as the movant was granted an opportunity for rehearing in which point out any errors the court may have made, thus providing sufficient safeguards to nsure consideration of the prisoner's contentions. The prisoner or movant's motion for rehearing will be a part of the record on appeal, thereby alerting the appellate court to the movant's dissatisfaction with the trial court's ruling. The committee felt that provisions should be added to allow the court to consider why a subsequent motion was being filed and whether it was properly filed, similar to 9(b) or 35 The committee also felt that the court should have the authority to order the state to respond to a 3.850 motion by answer or other pleading as the court may direct. The committee felt that even a motion filed under ule 3.850 does not substantially comply with the requirements of the rule, the motion should still be filed and ruled on by the court. Hence the former provision authorizing the court to refuse to receive such a motion has been removed and words allowing the presiding judge to summarily deny a motion have been satisfied. (a) When a death warrant is signed for a prisoner and the warrant sets the execution for at least days from the date of signing, all motions and petitions for any type of postconviction or collateral relief shall be filed within days of the date of signing. Expiration of the -day period procedurally bars any later petition unless it is alleged that the facts on which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence prior to the end of the -day period, or (2) the fundamental constitutional right asserted was established after the -day period expired and has been held to apply retroactively. The court with which any such motion or petition is filed shall consider and rule on it forthwith. (b) The time for filing motions for rehearing from orders entered on motions and petitions filed pursuant to (a) shall be days and the court shall rule promptly on any motion for rehearing. The time for filing a notice of appeal from orders entered on any motions or petitions filed pursuant to (a) shall be days. The forms of Florida Standard Jury Instructions in Criminal Cases published by The Florida Bar pursuant to authority of the court may be used by the trial judges of this tate in charging the jury in every criminal case to the extent that the forms are applicable, unless the trial judge shall determine that an applicable form of instruction is erroneous or inadequate, in which event shall modify or amend form or give such other instruction as the trial judge shall determine to be necessary to instruct the jury the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which finds the standard form erroneous or inadequate and the legal basis of finding. Similarly, in all circumstances in which the notes accompanying the Florida Standard Jury Instructions in Criminal Cases contain a recommendation that a certain type of instruction not be given, the trial judge may follow recommendation unless shall determine that the giving of such an instruction is necessary to instruct the jury , in which event shall give such instruction as shall deem appropriate and necessary; and, in such event, the trial judge shall state on the record or in a separate order the legal basis of determination that instruction is necessary. Same as prior rule. MODEL FORM FOR USE IN MOTIONS FOR RELIEF PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.850 ) v ) ) ________________________ ) (your name) ) ) ________________________ ) MOTION FOR RELIEF Instructions — Read Carefully (1) This motion must be legibly handwritten or typewritten, signed by the defendant and sworn to before a notary public or other official authorized to administer an oath. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. (2) Additional pages are not permitted except with respect to the facts you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted in support of your legal claims (as opposed to your factual claims), they should be submitted in the form of a separate emorandum of aw. This memorandum should have the same caption as this otion. (3) No filing fee is required when submitting a otion for elief. (4) Only the judgment of one case may be challenged in a single otion for elief. If you seek to challenge judgments entered in different cases, or different courts, you must file separate motions as to each such case. The single exception to this is if you are challenging the judgments in the different cases were consolidated for trial. In this event, show each case number involved in the caption. (5) Your attention is directed to the fact that you must include all grounds for relief, and all facts support such grounds, in the motion you file seeking relief from any judgment of conviction. (6) When the motion is fully completed, the original must be mailed to the lerk of the ourt whose address is _________ County Courthouse, Florida. MOTION 1. Name and location of the court entered the judgment of conviction under attack: ______________________________________________ _______________________________________________________________________ 2. Date of judgment of conviction: _______________________________________ 3. Length of sentence: ___________________________________________________ 4. Nature of offense(s) involved (all counts): ___________________________ _______________________________________________________________________ _______________________________________________________________________ 5. What was your plea? (check only one) (a) Not uilty __________ (b) Guilty __________ (c) Nolo ontendere __________ (d) Not uilty by reason of insanity __________ If you entered one plea to one count and a different plea to another count, give details: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 6. Kind of trial: (check only one) (a) Jury __________ (b) Judge only without jury __________ 7. Did you testify at the trial or at any hearing? Yes __________ No __________ If yes, list each such occasion: ______________________________________ _______________________________________________________________________ 8. Did you appeal from the judgment of conviction? Yes __________ No __________ 9. If you did appeal, answer the following: (a) Name of court: ____________________________________________________ (b) Result: ___________________________________________________________ (c) Date of result: ___________________________________________________ (d) Citation (if known): ______________________________________________ 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, motions, etc. with respect to this judgment in this court? Yes __________ No __________ 11. If your answer to number 10 was "yes, give the following information (applies only to proceedings in this court): (a) (1) Nature of the proceeding: _____________________________________ _______________________________________________________________ (2) Grounds raised: _______________________________________________ _______________________________________________________________ _______________________________________________________________ (3) Did you receive an evidentiary hearing on your petition, application, motion, etc.? Yes __________ No __________ (4) Result: _______________________________________________________ (5) Date of result: _______________________________________________ (b) As to any second petition, application, motion, etc., give the same information: (1) Nature of the proceeding: _____________________________________ _______________________________________________________________ (2) Grounds raised: _______________________________________________ _______________________________________________________________ _______________________________________________________________ (3) Did you receive an evidentiary hearing on your petition, application, motion, etc.? Yes __________ No __________ (4) Result: _______________________________________________________ (5) Date of result: _______________________________________________ 12. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, motions, etc. with respect to this judgment in any other court? Yes __________ No __________ 13. If your answer to number 12 was "yes, give the following information: (a) (1) Name of court: ________________________________________________ (2) Nature of the proceeding: _____________________________________ _______________________________________________________________ _______________________________________________________________ (3) Grounds raised: _______________________________________________ _______________________________________________________________ _______________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application, motions, etc.? Yes __________ No __________ (5) Result: _______________________________________________________ (6) Date of result: _______________________________________________ (b) As to any second petition, application, motion, etc., give the same information: (1) Name of ourt: _______________________________________________ (2) Nature of the proceeding: _____________________________________ _______________________________________________________________ _______________________________________________________________ (3) Grounds raised: _______________________________________________ _______________________________________________________________ _______________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application, motion, etc.? Yes __________ No __________ (5) Result: _______________________________________________________ (6) Date of result: _______________________________________________ (c) As to any third petition, application, motion, etc., give the same information: (1) Name of ourt: _______________________________________________ (2) Nature of the proceeding: _____________________________________ _______________________________________________________________ _______________________________________________________________ (3) Grounds raised: _______________________________________________ _______________________________________________________________ _______________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application, motion, etc.? Yes __________ No __________ (5) Result: _______________________________________________________ (6) Date of result: _______________________________________________ 14. State concisely every ground on which you claim that the judgment or sentence is unlawful. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and the facts supporting them. For your information, the following is a list of the most frequently raised grounds for relief. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds you may have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that your conviction or sentence is unlawful. DO NOT CHECK ANY OF THESE LISTED GROUNDS. If you select one or more of these grounds for relief, you must allege facts. The motion will not be accepted by the ourt if you merely check (a) through (). (a) Conviction obtained by plea of guilty or nolo contendere was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury was unconstitutionally selected or impanelled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. (k) Lack of jurisdiction of the court to enter the judgment or impose sentence (such as an unconstitutional statute). () Sentence in excess of the maximum authorized by law. A. Ground : ___________________________________________________ ___________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ B. Ground : ___________________________________________________________________ ___________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ C. Ground : ___________________________________________________________________ ___________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ D. Ground : ___________________________________________________________________ ___________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ 15. If any of the grounds listed in 14 A, B, C and D were not previously presented on your direct appeal, state briefly what grounds were not so presented and give your reasons they were not so presented: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 16. Do you have any petition, application, appeal, motion, etc. now pending in any court, either state or federal, as to the judgment under attack? Yes __________ No __________ 17. If your answer to number 16 was "yes, give the following information: (a) Name of ourt: ___________________________________________________ (b) Nature of the proceeding: _________________________________________ (c) Grounds raised: ___________________________________________________ ___________________________________________________________________ ___________________________________________________________________ (d) Status of the proceedings: ________________________________________ ___________________________________________________________________ 18. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein. (a) At preliminary hearing: ___________________________________________ ___________________________________________________________________ (b) At arraignment and plea: __________________________________________ ___________________________________________________________________ (c) At trial: _________________________________________________________ ___________________________________________________________________ (d) At sentencing: ____________________________________________________ ___________________________________________________________________ (e) On appeal: ________________________________________________________ ___________________________________________________________________ (f) In any proceeding: __________________ ___________________________________________________________________ (g) On appeal from any adverse ruling in a proceeding: ___________________________________________________________________ ___________________________________________________________________ WHEREFORE, ovant that the ourt grant all relief to which may be entitled in this proceeding, including but not limited to (here list the nature of the relief sought): 1. _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ 2. Such other and further relief as the ourt deems just and proper. STATE OF FLORIDA ) ) COUNTY OF __________ ) Before me, the undersigned authority, this day personally appeared _______, who first being duly sworn, says that he is the efendant in the above-styled cause, that he has read the foregoing otion for elief and has personal knowledge of the facts and matters therein set forth and alleged and that each and all of these facts and matters are true and correct. _________________________________________ (your signature) SWORN AND SUBSCRIBED TO before me this ___________ day of ___________, 19__. __________________________________________ NOTARY PUBLIC or other person authorized to administer an oath ----------- APPENDIX II The forms as set forth below, or computer generated formats that duplicate these forms, shall be used by all courts. Variations from these forms do not void a judgment, sentence, order, or fingerprints that are otherwise sufficient. ____ Probation Violator ____ Community Control Violator ____ Retrial ____ Resentence In the Circuit Court, ___________ Judicial Circuit, in and for ___________ County, Florida Division ___________ Case Number ______________ State of Florida v. ______________________ Defendant JUDGMENT The defendant, ________, being personally before this court represented by _________, the attorney of record, and the state represented by ____________, and having ____ been tried and found guilty by jury/by court of the following crime(s) ____ entered a plea of guilty to the following crime(s) ____ entered a plea of nolo contendere to the following crime(s) Offense Degree Statute Of Case OBTS Count Crime Number(s) Crime Number Number _________ ___________ ____________ ___________ __________ ________ _________ ___________ ____________ ___________ __________ ________ _________ ___________ ____________ ___________ __________ ________ _________ ___________ ____________ ___________ __________ ________ _________ ___________ ____________ ____________ __________ ________ ____ and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED THAT the defendant is hereby ADJUDICATED GUILTY of the above crime(s). ____ and pursuant to section , Florida Statutes, having been convicted of attempts or offenses relating to sexual battery (ch. 794) or lewd and lascivious conduct (ch. 800) the defendant shall be required to submit blood specimens. ____ and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD. ________________________________________ State of Florida v. _____________________ Defendant Case Number ____________ ____________________________________________________________________________ R. Thumb R. Index R. Middle R. Ring R. Little ____________________________________________________________________________ L. Thumb L. Index L. Middle L. Ring L. Little Fingerprints taken by: _____________________________________________________ Name Title I HEREBY CERTIFY that the above and foregoing fingerprints are the fingerprints of the defendant, _______, and that they were placed thereon by the defendant in my presence in open court this date. _________________________________________ Judge In the Circuit Court, ___________ Judicial Circuit, in and for ___________ County, Florida Division ______________ Case Number ___________________ State of Florida v. ______________________ Defendant The defendant is hereby ordered to pay the following sums if checked: ____ pursuant to section 960.20, Florida Statutes (Crimes Compensation Trust Fund). ____ $3.00 as a court cost pursuant to section (3), Florida Statutes (Criminal Justice Trust Fund). ____ $2.00 as a court cost pursuant to section (13), Florida Statutes (Criminal Justice Education by Municipalities and Counties). ____ A fine in the sum of $ ____ pursuant to section , Florida Statutes. (This provision refers to the optional fine for the Crimes Compensation Trust Fund and is not applicable unless checked and completed. Fines imposed as part of a sentence to section , Florida Statutes, are to be recorded on the sentence page(s).) ____ $20.00 pursuant to section 939.015, Florida Statutes (Handicapped and Elderly Security Assistance Trust Fund). ____ A 10% surcharge in the sum of $ ____ pursuant to section 775.0836, Florida Statutes (Handicapped and Elderly Security Assistance Trust Fund). ____ A sum of $ ____ pursuant to section 27.3455, Florida Statutes (Local Government Criminal Justice Trust Fund). ____ A sum of $ ____ pursuant to section 939.01, Florida Statutes (Prosecution/Investigative Costs). ____ A sum of $ ____ pursuant to section 27.56, Florida Statutes (Public Defender Fees). ____ Restitution in accordance with attached order. ____ Other _______________________________________________________________ _____________________________________________________________________ DONE AND ORDERED in open court in _______ County, Florida, this __________ day of _______, 19__. _________________________________________ Judge Defendant ___________ Case Number _______ OBTS Number __________ (As to Count __________) The defendant, being personally before this court, accompanied by the defendant's attorney of record, _______, and having been adjudicated guilty herein, and the court having given the defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law, and no cause being shown, (Check one if applicable) ____ and the court having on (date) _________ deferred imposition of sentence until this date ____ and the court having previously entered a judgment in this case on (date) _______ now resentences the defendant ____ and the court having placed the defendant on probation/community control and having subsequently revoked the defendant's probation/community control It Is The Sentence Of The Court That: ____ The defendant pay a fine of $ ____, pursuant to section , Florida Statutes, plus $ ____ as the 5% surcharge required by section 960.25, Florida Statutes. ____ The defendant is hereby committed to the custody of the Department of Corrections. ____ The defendant is hereby committed to the custody of the Sheriff of _______ County, Florida. ____ The defendant is sentenced as a youthful offender in accordance with section , Florida Statutes. To Be Imprisoned (check one; unmarked sections are inapplicable): ____ For a term of natural life. ____ For a term of ____________. ____ Said SENTENCE SUSPENDED for a period of ______ subject to conditions set forth in this order. If "split" sentence complete the appropriate paragraph ____ Followed by a period of _______ on probation/community control under the supervision of the Department of Corrections according to the terms and conditions of supervision set forth in a separate order entered herein. ____ However, after serving a period of _______ imprisonment in _______ the balance of the sentence shall be suspended and the defendant shall be placed on probation/community control for a period of _______ under supervision of the Department of Corrections according to the terms and conditions of probation/community control set forth in a separate order entered herein. In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before the defendant begins service of the supervision terms. (As to Count _________) By appropriate notation, the following provisions apply to the sentence imposed: Mandatory/Minimum Provisions: Firearm ____ It is further ordered that the 3-year minimum imprisonment provision of section (2), Florida Statutes, is hereby imposed for the sentence specified in this count. Drug Trafficking ____ It is further ordered that the _______ mandatory minimum imprisonment provision of section (1), Florida Statutes, is hereby imposed for the sentence specified in this count. Controlled Substance Within 1,000 Feet of School ____ It is further ordered that the 3-year minimum imprisonment provision of section (1)(e)1, Florida Statutes, is hereby imposed for the sentence specified in this count. Habitual Felony Offender ____ The defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in accordance with the provisions of section (4)(a), Florida Statutes. The requisite findings by the court are set forth in a separate order or stated on the record in open court. Habitual Violent Felony Offender ____ The defendant is adjudicated a habitual violent felony offender and has been sentenced to an extended term in accordance with the provisions of section (4)(b), Florida Statutes. A minimum term of _______ year(s) must be served prior to release. The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act ____ It is further ordered that the defendant shall serve a minimum of _______ years before release in accordance with section , Florida Statutes. Capital Offense ____ It is further ordered that the defendant shall serve no less than 25 years in accordance with the provisions of section (1), Florida Statutes. Short-Barreled Rifle, Shotgun, Machine Gun ____ It is further ordered that the 5-year minimum provisions of section (2), Florida Statutes, are hereby imposed for the sentence specified in this count. Continuing Criminal Enterprise ____ It is further ordered that the 25-year minimum sentence provisions of section , Florida Statutes, are hereby imposed for the sentence specified in this court. Other Provisions: Retention of Jurisdiction ____ The court retains jurisdiction over the defendant pursuant to section (3), Florida Statutes (1983). Jail Credit ____ It is further ordered that the defendant shall be allowed a total of ______ days as credit for time incarcerated before imposition of this sentence. Prison Credit ____ It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing. Consecutive/Concurrent as to Other Counts It is further ordered that the sentence imposed for this count shall run (check one) ____ consecutive to ____ concurrent with the sentence set forth in count _______ of this case. Consecutive/Concurrent as to Other Convictions It is further ordered that the composite term of all sentences imposed for the counts specified in this order shall run (check one) ____ consecutive to ____ concurrent with (check one) the following: ____ any active sentence being served. ____ specific sentences: ____________________________________________ ________________________________________________________________ ________________________________________________________________ In the event the above sentence is to the Department of Corrections, the Sheriff of _______ County, Florida, is hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated by the department together with a copy of this judgment and sentence and any other documents specified by Florida Statute. The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within 30 days from this date with the clerk of this court and the defendant's right to the assistance of counsel in taking the appeal at the expense of the state on showing of indigency. In imposing the above sentence, the court further recommends _____________ ____________________________________________________________________________ ____________________________________________________________________________ DONE AND ORDERED in open court at _______ County, Florida, this __________ day of _______, 19__. _________________________________________ Judge In the _______ Court of _______ County, Florida Case Number __________ State of Florida v. ________________________ Defendant This cause coming on this day to be heard before me, and you, the defendant, __________, being now present before me, and you having (check one) ____ entered a plea of guilty to ____ entered a plea of nolo contendere to ____ been found guilty by jury verdict of ____ been found guilty by the court trying the case without a jury of the offense(s) of _______________________________________________________ _____________________________________________________________________ _____________________________________________________________________ SECTION 1: Judgment Of Guilt ____ The Court hereby adjudges you to be guilty of the above offense(s). Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be placed on probation for a period of _______ under the supervision of the Department of Corrections, subject to Florida law. SECTION 2: Order Withholding Adjudication ____ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on probation for a period of _______ under the supervision of the Department of Corrections, subject to Florida law. SECTION 3: Probation During Portion Of Sentence It is hereby ordered and adjudged that you be ____ committed to the Department of Corrections ____ confined in the County Jail for a term of _______ with credit for _______ jail time. After you have served _______ of the term you shall be placed on probation for a period of _______ under the supervision of the Department of Corrections, subject to Florida law. ____ confined in the County Jail for a term of _______ with credit for _______ jail time, as a special condition of probation. It is further ordered that you shall comply with the following conditions of probation during the probationary period. (1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose. (2) You will pay the State of Florida the amount of $ ____ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes. (3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer. (4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer. (5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation. (6) You will not associate with any person engaged in any criminal activity. (7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used. (8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer. (9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you. (10) You will pay restitution, costs, and/or fees in accordance with the attached orders. (11) You will report in person within 72 hours of your release from confinement to the probation office in _______ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at _______. SPECIAL CONDITIONS ____ You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you must successfully complete the treatment. ____ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer. ____ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment. ____ You will not associate with _______ during the period of probation. ____ You will not contact _______ during the period of probation. ____ Other ________________________________________________________________ ______________________________________________________________________ (Use the space below for additional conditions as necessary.) You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as authorized by law, or may discharge you from further supervision. If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence. It is further ordered that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.) It is further ordered that the clerk of this court file this order in the clerk's office and provide certified copies of same to the officer for use in compliance with the requirements of law. DONE AND ORDERED, this the _______ day of _______, 19__. _________________________________________ Judge I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them. Date ______________ Probationer ___________________ Instructed by _____________ Original: Clerk of the Court Certified Copies: Probationer Florida Department of Corrections, Probation and Parole Services In the _________ Court of ________ County, Florida Case Number ___________ State of Florida v. ________________________ Defendant This cause coming on this day to be heard before me, and you, the defendant, ________, being now present before me, and you having (check one) ____ entered a plea of guilty to ____ entered a plea of nolo contendere to ____ been found guilty by jury verdict of ____ been found guilty by the court trying the case without a jury of the offense(s) of _______________________________________________________ _____________________________________________________________________ _____________________________________________________________________ SECTION 1: Judgment of Guilt ____ The court hereby adjudges you to be guilty of the above offense(s). Now, therefore it is ordered and adjudged that you be placed on community control for a period of _______ under the supervision of the Department of Corrections, subject to Florida law. SECTION 2: Order Withholding Adjudication ____ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of _______ under the supervision of the Department of Corrections, subject to Florida law. SECTION 3: Community Control During Portion Of Sentence It is hereby ordered and adjudged that you be ____ committed to the Department of Corrections ____ confined in the County Jail for a term of _________ with credit for ________ jail time. After you have served __________ of the term, you shall be placed on community control for a period of __________ under the supervision of the Department of Corrections, subject to Florida law. ____ confined in the County Jail for a term of _________ with credit for __________ jail time, as a special condition of community control. It is further ordered that you shall comply with the following conditions of community control during the community control period. (1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose. (2) You will pay the State of Florida the amount of $ ____ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes. (3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer. (4) You will not possess, carry, or own any firearm. You will not possess, carry, or own other weapons without first procuring the consent of your officer. (5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your community control. (6) You will not associate with any person engaged in any criminal activity. (7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used. (8) You will work diligently at a lawful occupation, advise your employer of your community control status, and support any dependents to the best of your ability as directed by your officer. (9) You will promptly and truthfully answer all inquiries directed to you by the court or your officer and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you. (10) You will report to your officer at least 4 times a week, or, if unemployed full time, daily. (11) You will perform _______ hours of public service work as directed by your officer. (12) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer. (13) You will pay restitution, costs, and/or fees in accordance with the attached orders. (14) You will report in person within 72 hours of your release from confinement to the probation office in _______ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at _______. SPECIAL CONDITIONS ____ You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you must successfully complete the treatment. ____ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment. ____ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer. ____ You will not associate with _______ during the period of community control. ____ You will not contact _______ during the period of community control. ____ You will maintain an hourly accounting of all your activities on a daily log which you will submit to your officer on request. ____ You will participate in self-improvement programs as determined by the court or your officer. ____ You will submit to electronic monitoring of your whereabouts as required by the Florida Department of Corrections. ____ Other _________________________________________________________________ _______________________________________________________________________ (Use the space below for additional conditions as necessary.) You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your community control, or may extend the period of community control as authorized by law, or may discharge you from further supervision or return you to a program of regular probation supervision. If you violate any of the conditions and sanctions of your community control, you may be arrested, and the court may adjudicate you guilty if adjudication of guilt was withheld, revoke your community control, and impose any sentence that it might have imposed before placing you on community control. It is further ordered that when you have reported to your officer and have been instructed as to the conditions of community control, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.) It is further ordered that the clerk of this court file this order in the clerk's office, and forthwith provide certified copies of same to the officer for use in compliance with the requirements of law. DONE AND ORDERED, this the _______ day of _______, 19__. _________________________________________ Judge I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them. Date _________________ Community controller __________________ Instructed by ___________________ Original: Clerk of the Court Certified Copies: Community Controlee Florida Department of Corrections, Probation and Parole Services In the Circuit Court, __________ Judicial Circuit in and for __________ County, Florida Division __________ Case Number ______________ State of Florida v. ________________________ Defendant By appropriate notation, the following provisions apply to the sentence imposed in this section: ____ Restitution is not ordered as it is not applicable. ____ Restitution is not ordered due to the financial resources of the defendant. ____ Restitution is not ordered due to __________________________________. ____ Due to the financial resources of the defendant, restitution of a portion of the damages is ordered as prescribed below. ____ Restitution is ordered as prescribed below. ____ Restitution is ordered for the following victim. (Victim refers to the aggrieved party, aggrieved party's estate, or aggrieved party's next of kin if the aggrieved party is deceased as a result of the offense. In lieu of the victim's address and phone number, the address and phone number of the prosecuting attorney, victim's attorney, or victim advocate may be used.) _____________________________ ______________________________________ Name of victim Name of attorney or advocate if applicable Address ____________________________________________________________________ City, State, and Zip Code __________________________________________________ Phone Number __________________________ ____ The sum of $ ____ for medical and related services and devices relating to physical, psychiatric, and psychological care, including non-medical care and treatment rendered in accordance with a recognized method of healing. ____ The sum of $ ____ for necessary physical and occupational therapy and rehabilitation. ____ The sum of $ ____ to reimburse the victim for income lost as a result of the offense. ____ The sum of $ ____ for necessary funeral and related services if the offense resulted in bodily injury resulting in the death of the victim. ____ The sum of $ ____ for damages resulting from the offense. ____ The sum of $ ____ for _______________________________________________ _____________________________________________________________________ It is further ordered that the defendant fulfill restitution obligations in the following manner: ____ Total monetary restitution is determined to be $ ____ to be paid at a rate of $ ____ per (check one) ____ month ____ week ____ other (specify) _____ and is to be paid through the (check one) ____ clerk of the circuit court, ____ to the victim's designee, or ____ through the Department of Corrections, with an additional 4% fee of $ ____ for handling, processing, and forwarding the restitution to the victim(s). DONE AND ORDERED at _______ County, Florida, this ______ day of _______, 19__. ________________________________________ Judge Original: Clerk of the Court Certified Copy: Victim The proposed changes to Rule 3.986 are housekeeping in nature. References to the Department of Offender Rehabilitation have been changed to Department of Corrections to reflect a legislative change. See section , Florida Statutes (Supp. 1978). The reference to "hard labor" has been stricken as the courts have consistently held such a condition of sentence is not authorized by statute. See, e.g., McDonald v. State, , 458 (Fla. 4th DCA 1975).