No. 72105.
August 25, 1988.
Original Proceeding — Florida Rules of Juvenile Procedure.
Rutledge R. Liles, President, Jacksonville, Stephen N. Zack, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, and Daniel P. Dawson, Chairman, Orlando, for The Florida Bar Juvenile Court Rules Committee.
B. Elaine New, Asst. General Counsel, Tallahassee, for Dept. of Health and Rehabilitative Services.
Jim Dulfer, Daytona Beach, for Central Florida Legal Services, Inc.
PER CURIAM.
The Juvenile Rules Committee of The Florida Bar has petitioned this Court to approve its quadrennial report of proposed changes to the Florida Rules of Juvenile Procedure. Pursuant to Florida Rule of Judicial Administration 2.130, the proposed amendments were submitted to The Board of Governors of The Florida Bar for review. With three exceptions — amendments to rules 8.290, 8.710, and 8.800 — the board unanimously recommended approval. Additional comments have been received from Florida's Department of Health and Rehabilitative Services (HRS) and from Central Florida Legal Services, Inc. Both groups point out that this Court in The Florida Bar Re: Advisory Opinion HRS Nonlawyer Counselor, 518 So.2d 1270 (Fla. 1988), created an ad hoc committee to study and make recommendations concerning the role of HRS counsellors in dependency cases. This is the subject of present proposed changes to rules 8.710 and 8.800. The committee's report is due December 1, 1988. In its response to the present proposals, HRS recommends that this Court refrain from acting on the proposed changes to rules 8.710, 8.720, and 8.800 until the report has been received. Central Florida Legal Services similarly recommends that this Court postpone acting on the proposed amendment to 8.800.
In its report, the rules committee proposes that rules 8.710 and 8.800 be amended to empower HRS agents to make court appearances on behalf of the department in certain detention hearings and in certain instances where post-disposition relief is sought. We defer acting upon these changes until the report of the ad hoc committee has been received. We do, however, approve the rules committee's proposed change to rule 8.710(b), which concerns the time limits for detention hearings. The rules committee also proposes that rule 8.720(a) be amended to conform to statutory changes concerning the obligation of the state attorney to review dependency petitions filed by nonlawyers. We approve this change, but we further amend this rule to contain the concomitant statutory provision that this review shall not interfere with the right of any person to file dependency petitions. See § 39.404(1), Fla. Stat. (1987).
We approve the rules committee's request that all committee notes dated prior to 1984 found within the existing rules be deleted. These notes are oftentimes confusing and outdated. We hereby order deleted the committee notes to the following rules: 8.010, 8.030, 8.040, 8.050, 8.070, 8.080, 8.090, 8.100, 8.110, 8.120, 8.130, 8.140, 8.150, 8.170, 8.180, 8.190, 8.200, 8.210, 8.220, 8.230, 8.240, and 8.270. We approve the rules committee's request that outdated forms be deleted from the existing rules. We hereby order deleted the following forms: 8.904, 8.906, 8.912, 8.915, 8.921, 8.923, 8.924, 8.925, 8.926, 8.927, and 8.931.
We approve the remainder of the proposed changes. Appended is the text of the amended portions of the rules. The amended rules become effective January 1, 1989. The committee's comments (reason for change) are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
PER CURIAM.
OLD RULE NEW RULE REASON FOR CHANGE held the time limits as provided by law twenty-four (24) hours after the child is taken into custody excluding Sundays and legal holidays. OLD RULE NEW RULE REASON FOR CHANGE , , or or when a plan under Rule 8.130(a)(2) has been accepted, K.M. v. State, 448 So.2d 1124 No case shall be transferred to another county under this rule unless a plea of nolo contendere or guilty has been entered by the child on the charge being transferred, or until the transferring court has found the child committed the offense in question after an adjudicatory hearing in the county where the offense occurred. Any action challenging the entry of a plea or the adjudicatory hearing result must be brought in the transferring court's county. OLD RULE NEW RULE REASON FOR CHANGE to establish a prima facie case of guilt against the child, and or the state attorney or the child any party OLD RULE NEW RULE REASON FOR CHANGE OLD RULE NEW RULE REASON FOR CHANGE as provided by law by the child, at each stage of the proceeding as provided herein. This waiver shall be in writing if made at the time of a plea of guilty or no contest or adjudicatory hearing. OLD RULE NEW RULE REASON FOR CHANGE at a particular stage in the proceedings subsequent OLD RULE NEW RULE REASON FOR CHANGE , OLD RULE NEW RULE REASON FOR CHANGE , administrative judge assigned to juvenile cases juvenile division , and and child support. OLD RULE NEW RULE REASON FOR CHANGE the time limits as provided by law 24 hours, excluding Sundays and legal holidays, from the time the child is taken into custody. (7) OLD RULE NEW RULE REASON FOR CHANGE as provided by law by any person. (5) Upon the filing of a petition the clerk's office shall forward the petition to the State Attorney or his designate. In the case of child abuse, where the petition is filed by a person who is not an attorney, the State Attorney or his designate shall review the petition for legal sufficiency or otherwise be available to assist the petitioner in preparation of the technical aspects of the petition. Nothing in this section shall interfere with the right or decision of any person to file a petition alleging dependency.
APPENDIX RULE 8.050 DETENTION RULE 8.050 DETENTION HEARING HEARING (b) TIME. The (b) TIME. The detention The time limit within detention hearing hearing shall be within which a hearing must be shall be within held has been changed twenty-four (24) by statute several hours after the child times in recent years. is taken into custody The current rule excluding Sundays and is in conflict with the legal holidays. law. This change will correct that and eliminate the need for future changes if the time limit is again changed by law. RULE 8.160. TRANSFER RULE 8.160. TRANSFER OF OF CASES CASES The court may The court may transfer any The former rule does transfer any case case after adjudication not make it clear after adjudication, when adjudication is enough that the taking when adjudication is withheld, of a plea or trial of a withheld, or when a case must be held in plan under Rule to the the county where the 8.130(a)(2) has been circuit court for the county offense occurred. accepted, to the of the circuit court in Additionally, circuit court for the which is located the county of the circuit domicile or usual residence (Fla. 2d D.C.A. 1984), in which is located of the child or such other indicates the problems the domicile or usual circuit court as the judge that can occur when an residence of the may determine to be for the appellate court on one child or such other best interest of the child. side of the state circuit court as the attempts to rule on the judge may determine validity of a plea that to be for the best took place in another interest of the circuit and appellate child. The district. transferring court shall enter an order transferring its jurisdiction and certifying the case to the proper court, furnishing the clerk and the state attorney of the receiving court within five (5) days a certified copy of the order of transfer and of all previous orders entered by the court in the interest of that child. The transferring court shall enter an order transferring its jurisdiction and certifying the case to the proper court, furnishing the clerk and the state attorney of the receiving court within five (5) days a certified copy of the order of transfer and of all previous orders entered by the court in the interest of that child. RULE 8.190 RULE 8.190 ADJUDICATORY ADJUDICATORY HEARINGS HEARINGS (k) Motion for (k) Motion for Judgement The new language more Judgment of of Dismissal. If at the closely follows Fla.R. Dismissal. If at the close of the evidence for Crim.P. 3.380. close of the evidence the petitioner, the court is for the petitioner, of the opinion that the the court is of the evidence is insufficient opinion that the evidence is insufficient it may, it may, on the motion and on the motion of of any party shall, shall, enter enter an order an order dismissing the dismissing the petition for insufficiency petition for of the evidence. insufficiency of the evidence. RULE 8.230. Motion for Rehearing (a) Basis. After (a) Basis. After the court A comma is needed the court has entered has entered an order ruling before and after "or an an order ruling on a on a pre-trial motion, an order withholding pre-trial motion, an order of adjudication, or an adjudication". order of adjudication order withholding or an order adjudication, any party may withholding move for rehearing upon one adjudication any or more of the following party may move for grounds: rehearing upon one or more of the following grounds: J. GENERAL PROVISIONS Rule 8.290 Providing Rule 8.290 Providing Counsel Counsel to Parties to Parties (a) Duty of the (a) Duty of the Court. The To conform the rule Court. The court court shall advise the child to law and to provide shall advise the of his right to counsel. The a written documentation child of his right court shall appoint counsel of the child's waiver to counsel. If the unless of counsel at the child is insolvent waived critical stages of the the court shall proceeding. appoint counsel unless waived as provided herein. RULE 8.290 PROVIDING COUNSEL TO PARTIES (b) Waiver of (b) Waiver of Counsel. Counsel. (1) The failure of (1) The failure of a child Present language is a child to request to request appointment of too broad and vague. appointment of counsel New language conforms counsel or his or with section 4 of the announced intention his announced intention to rule. to plead guilty shall plead guilty shall not, in not, in itself, itself, constitute a waiver constitute a waiver of counsel at any of counsel at any stage of the proceedings. stage of the proceedings. RULE 8.320. DISQUALIFICATION OF JUDGE (e) Substituted (e) Substituted Judge; A comma is needed Judge; Responsibility. When a party after "disqualified". Responsibility. When shall have suggested the a party shall have disqualification of a trial suggested the judge and an order shall disqualification of a trial judge and an order shall have been made have been made admitting the admitting the disqualification of such disqualification of judge, and another judge such judge, and shall have been assigned to another judge shall act in lieu of the judge so have been assigned held to be disqualified the to act in lieu of the judge so assigned shall not judge so held to be be disqualified on account disqualified the of alleged prejudice against judge so assigned the party making the motion shall not be in the first instance, or in disqualified on favor of the adverse party, account of alleged unless such judge shall prejudice against admit and hold that it is the party making the then a fact that he, the motion in the first said judge, does not stand instance, or in favor fair and impartial between of the adverse party, the parties and if such unless such judge judge shall hold, rule and shall admit and hold adjudge that he does stand that it is then a fair and impartial as fact that he, the between the parties and said judge, does not their respective interest, stand fair and he shall cause such ruling impartial between the to be entered on the minutes parties and if such of the court, and shall judge shall hold, proceed to preside as judge rule and adjudge that in the pending cause. The he does stand fair ruling of such judge may be and impartial as reviewed by the appellate between the parties court, as are other rulings and their respective of the trial court. interest, he shall cause such ruling to be entered on the minutes of the court, and shall proceed to preside as judge in the pending cause. The ruling of such judge may be reviewed by the appellate court, as are other rulings of the trial court. RULE 8.530. TRANSFER RULE 8.530. TRANSFER OF OF CASES CASES (a) Transfer of (a) Transfer of Cases The change of language Cases Within Circuit Within Circuit Court. If it from "juvenile Court. If it should should appear at anytime in division" to appear at any time in a proceeding initiated in a "Administrative judge a proceeding division other than the assigned to juvenile initiated in a juvenile division of circuit cases" is for the division other than court that facts are alleged purpose of clarity: it the juvenile division which essentially constitute was the intent of this of the circuit court a dependency, the court may rule that the circuit that facts are upon consultation with the judge in the general alleged which (or other) division essentially should consult with the constitute a order the administrative judge in dependency, the court transfer of action and the the juvenile division; may upon consultation transmittal of all relevant however, the way the with the juvenile papers to the juvenile rule is written is division order the division. The juvenile ambiguous as to who in transfer of action division shall then assume the juvenile division and the transmittal jurisdiction only over has authority to of all relevant matters pertaining to authorize the transfer. papers to the dependency, custody This change clarifies juvenile division. visitation that it is the The juvenile division administrative judge, shall then assume and not the Clerk of jurisdiction only the Court or the over matters administrator who can pertaining to authorize a transfer. dependency, custody and visitation. The inclusion of child support as an issue over which the juvenile court judge should have jurisdiction is for the purposes of consistency. The judge who determines who will have physical custody of the child is in the best position to decide what contributions the other party must take toward the child's support. RULE 8.710 DETENTION RULE 8.710 DETENTION PETITION, HEARING AND PETITION, HEARING AND ORDER ORDER (b) Dentention (b) Detention Hearing Hearing (2) The court shall (2) The court shall The time limit to hold conduct an informal conduct an informal hearing a hearing has been hearing on the on the petition within changed by statute petition within 24 several times in recent hours, excluding years. This change will Sundays and legal conform the rule to the holidays, from the law and eliminate the time the child is The need for future changes taken into custody. court shall determine at the if the time limit is The court shall hearing the existence of again changed by law. determine at the probable cause to believe hearing the existence the child is dependent and of probable cause to whether the other criteria believe the child is provided by law for dependent and whether placement in a shelter have the other criteria been met. provided by law for placement in a shelter have been met. (3) no change recommended (4) no change recommended (5) no change recommended (6) no change recommended new section Rule 8.720 Petitions Rule 8.720 Petitions A.) Contents of A.) Contents of Petitions Petitions (1) A petition may (1) A petition may be To conform to the new be filed by any filed language in Florida person. Each petition Each petition Statutes 39.404(1). shall be entitled a shall be entitled a petition petition for for dependency and shall dependency and shall allege sufficient facts allege sufficient showing the child to be facts showing the dependent based upon child to be dependent applicable law. based upon applicable law. (2) no change recommended (3) no change recommended (4) no change recommended (5) new section