IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE. (2015)

CORRECTED OPINION

This matter is before the Court for consideration of out-of-cycle amendments to the Florida Rules of Criminal Procedure. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction¹ and adopt the amendments as proposed.

The Criminal Procedure Rules Committee (Rules Committee) filed its report proposing amendments to Florida Rules of Criminal Procedure 3.800(a) (Correction, Reduction, and Modification of Sentences; Correction); 3.984 (Application for Criminal Indigent Status); 3.987 (Motion for Postconviction Relief); and 3.993 (Forms Related to Capital Postconviction Records Production). The Rules Committee also proposed new rule 3.9875 (Motion for Jail Credit). The Florida Bar Board of Governors unanimously approved the amendments.

The majority of the proposals are in response to a request by the Court for the Rules Committee, with input from the Supreme Court Criminal Court Steering Committee (Steering Committee), to review the issue of successive rule 3.800(a) motions and the postconviction procedure forms in light of the Court's decision in In re: Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013). The Court specifically asked the Rules Committee to propose a rule amendment to rule 3.800(a) restricting such motions and propose corresponding amendments to the Florida Rules of Criminal Procedure forms for use in postconviction proceedings.

The Rules Committee published its proposals prior to filing them with the Court. The Rules Committee received one comment from the Steering Committee, highlighting the differences between the Steering Committee's recommendations and the Rules Committee's proposals as published. The Rules Committee did not alter its proposals. The Court published the Rules Committee's proposals for comment and received four comments addressing the proposals to amend rules 3.800(a) and 3.987, and to adopt 3.9875. The Rules Committee filed a response to the comments, agreeing in part and revising some of its proposals accordingly.

Having considered the Rules Committee's report, the comments, and the Rules Committee's responses to the comments, we amend Florida Rules of Criminal Procedure 3.800, 3.984, 3.987, and 3.993 as proposed. We also adopt new rule 3.9875 as proposed. We discuss the amendments to these rules below.²

Rule 3.800(a) (Correction, Reduction, and Modification of Sentences; Correction) is divided into four new subdivisions, as follows: (a)(1) (Generally); (a)(2) (Successive Motions); (a)(3) (Sexual Predator Designation); and (a)(4) (Appeals). Subdivision (a)(2) (Successive Motions) is added to rule 3.800 and is modeled after the successive motions provision in rule 3.850(h)(2) (Motion to Vacate, Set Aside, or Correct Sentence; Successive Motions). Subdivision (a)(2) creates a process for addressing successive motions and details the documents that must accompany a court's ruling dismissing a motion. Because illegal sentences may be corrected at any time, the amendments to rule 3.800(a)(2) do not restrict the time for filing such a motion. Subdivision (a)(4) (Appeals) adds the phrase “or dismissing” to address the dismissal of successive motions. Finally, the Court Commentary to rule 3.800 is amended by the Court to explain that with respect to subdivision (a)(2), State v. McBride, 848 So.2d 287 (Fla.2003), still applies.

Rule 3.984 (Application for Criminal Indigent Status) is amended to remove the phrase “to the best of my knowledge” from the attestation clause at the end of the form. This is consistent with case law that holds that the phrase renders an oath insufficient. See, e.g., State v. Rodriguez, 523 So.2d 1141, 1142 (Fla.1988); Scott v. State, 464 So.2d 1171, 1172 (Fla.1985).

Rule 3.987 (Motion for Postconviction Relief) is amended to conform the form to the Court's amendments to rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence) in In re: Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d at 738. Instruction (1) in rule 3.987 is amended to require that the motion must be typewritten or legibly handwritten in blue or black ink, with one inch margins, and on white 8 1/2 by 11 inch paper, and shall not exceed fifty pages without leave of court upon a showing of good cause. Instruction (1) no longer requires that the motion be signed by the defendant and that the defendant use either the notarized or unnotarized oath at the end of the form; instead, rule 3.987 includes a new oath, as well as a Certificate of Mailing, a Certificate of Service, and a Certificate of an Accurate and Complete Translation. Rule 3.987 includes a new instruction (6), which pertains to claims of newly discovered evidence; a new instruction (7), which provides that the motion must be submitted under oath and sets out what must be included in the oath; and instruction (8), which was former instruction (6) and provides that when the motion is complete, it must be mailed to the clerk of the court of the county where the sentence was imposed and adds the requirement “as stated in Florida Rule of Appellate Procedure 9.420 [Filing; Service of Copies; Computation of Time].”

New rule 3.9875 (Motion for Jail Credit) is the “Model Form for Use in Motions for Correction of Jail Credit Pursuant to Florida Rule of Criminal Procedure 3.801.” The form follows recently adopted rule 3.801 (Correction of Jail Credit). See In re Amends. to Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro., 132 So.3d at 737.

Lastly, rule 3.993 is amended to require e-mail addresses throughout the rule to conform with Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Documents).

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The Court Commentary is offered for explanation only and is not adopted as an official part of the rule. The amendments shall take effect on January 1, 2016, at 12:01 a.m.

It is so ordered.

I dissent from the majority's rejection of an additional change to new rule 3.800(a)(2) suggested by the Criminal Court Steering Committee. I would adopt the Steering Committee's suggestion that new rule 3.800(a)(2), which authorizes the dismissal of successive motions raising grounds for relief previously rejected on the merits, also include a provision for the dismissal of successive motions raising “new or different grounds” if “the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant's counsel to have asserted those grounds in a prior motion .”

I otherwise concur with the rule amendments adopted by the majority.

APPENDIX

RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES

(a) Correction.

(1) Generally. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.

(2) Successive Motions. A court may dismiss a second or successive motion if the court finds that the motion fails to allege new or different grounds for relief and the prior determination was on the merits. When a motion is dismissed under this subdivision, a copy of that portion of the files and records necessary to support the court's ruling must accompany the order dismissing the motion.

(3) Sexual Predator Designation. A defendant may seek correction of an allegedly erroneous sexual predator designation under this subdivision, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.

(4) Appeals. All orders denying or dismissing motions under this subdivision (a) shall must include a statement that the movant defendant has the right to appeal within 30 days of rendition of the order.

(b)-(c) [No Change]

Committee Notes[No Change]

Court Commentary

2015 Amendments. The amendment to rule 3.800(a)(2) is not intended to render inapplicable the “manifest injustice” exception as described in State v. McBride, 848 So.2d 287 (Fla.2003).

1999 Amendments. [No Change]

RULE 3.984. APPLICATION FOR CRIMINAL INDIGENT STATUS

FOOTNOTES

1.  See art. V, § 2(a), Fla. Const.

2.  Minor, technical changes to the rules are not elaborated upon.

PER CURIAM.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur. CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.