IN RE: AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE—2018 REGULAR-CYCLE REPORT. (2018)

REVISED OPINION

Consistent with the order entered in this case on October 4, 2018, the opinion dated July 19, 2018, is withdrawn and the following revised opinion is substituted in its place.¹

The Florida Bar's Criminal Procedure Rules Committee (Committee) has filed its regular-cycle report of proposed amendments to the Florida Rules of Criminal Procedure, in accord with Florida Rule of Judicial Administration 2.140(b). We have jurisdiction ² and adopt the amendments as discussed below.

BACKGROUND

The Committee proposes amending the following rules and forms: 3.010 (Scope); 3.025 (State and Prosecuting Attorney Defined); 3.030 (Service and Filing of Pleadings, Papers, and Documents); 3.130 (First Appearance); 3.131 (Pretrial Release); 3.172 (Acceptance of Guilty or Nolo Contendere Plea); 3.180 (Presence of Defendant); 3.190 (Pretrial Motions); 3.191 (Speedy Trial); 3.203 (Defendant's Intellectual Disability as a Bar to Imposition of the Death Penalty); 3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition); 3.217 (Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant); 3.218 (Commitment of a Defendant Found Not Guilty by Reason of Insanity); 3.219 (Conditional Release); 3.220 (Discovery); 3.240 (Change of Venue); 3.330 (Determination of Challenge for Cause); 3.470 (Proceedings on Sealed Verdict); 3.590 (Time for and Method of Making Motions; Procedure; Custody Pending Hearing); 3.600 (Grounds for New Trial); 3.610 (Motion for Arrest of Judgment; Grounds); 3.691 (Post-Trial Release); 3.692 (Petition to Seal or Expunge); 3.704 (The Criminal Punishment Code); 3.710 (Presentence Report); 3.770 (Procedure When Pregnancy is Alleged as Cause For Not Pronouncing Death Sentence); 3.810 (Commitment of Defendant; Duty of Sheriff); 3.850 (Motion to Vacate, Set Aside, or Correct Sentence); 3.986(c) (Forms Related to Judgment and Sentence; Form for Charges, Costs, and Fees); 3.986(d) (Forms Related to Judgment and Sentence; Form for Sentencing); 3.986(e) (Forms Related to Judgment and Sentence; Form for Order of Probation); 3.986(f) (Forms Related to Judgment and Sentence; Form for Community Control); 3.986(g) (Forms Related to Judgment and Sentence; Form for Restitution Order); 3.989(a) (Affidavit, Petition, and Order to Expunge or Seal Forms; Affidavit in Support of Petition); 3.989(b) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Expunge); 3.989(c) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Seal); 3.989(d) (Affidavit, Petition, and Order to Expunge or Seal Forms; Petition to Expunge or Seal); 3.989(e) (Affidavit, Petition, and Order to Expunge or Seal Forms; Petition to Expunge; Human Trafficking Victim); 3.989(f) (Affidavit in Support of Petition; Human Trafficking Victim); and 3.989(g) (Affidavit, Petition, and Order to Expunge or Seal Forms; Order to Expunge; Human Trafficking Victim).³ In addition, new rule 3.9876 (Motion for Correction of Sentence) is proposed. Following the filing of the report and the Court's publication of the proposals in The Florida Bar News, comments were filed by the Florida Public Defender Association (FPDA) and Public Defender Blaise Trettis.

After reviewing the Committee's proposals and considering the comments filed and the Committee's response thereto, we adopt the proposed amendments to rules 3.010, 3.025, 3.030, 3.131, 3.180, 3.190, 3.191, 3.203, 3.213, 3.217, 3.218, 3.219, 3.220, 3.240, 3.330, 3.470, 3.590, 3.600, 3.610, 3.691, 3.692, 3.704, 3.710, 3.770, 3.810, 3.850, 3.986, 3.9876, and 3.989. With modification, we also adopt the proposed amendments to rules 3.130 and 3.172. The notable changes to the rules are summarized below.

AMENDMENTS

The Committee proposes amending rule 3.130 (First Appearance) in pertinent part, to add new subdivision (b)(2) (Advice to Defendant; Use of Video Recording to Provide Notice of Rights), to require that the judge confirm that defendants, if advised of their rights by a pre-recorded video, had an opportunity to view and understand the rights explained in the video recording. Based upon the comment by the FPDA, however, we modify the Committee's proposal to provide as follows: “If the defendant was advised of the rights listed in subdivisions (b)(1)(A)-(b)(1)(C) by pre-recorded video, the judge shall confirm separately with each individual defendant that such defendant had an opportunity to view and understands the rights explained in the video recording.” As modified, greater personal interaction between the judge and each individual defendant will be encouraged.

Subdivision (k) (Summons on Misdemeanor Charge) of rule 3.131 (Pretrial Release) is amended to require that the summons state “the title of the hearing to be conducted” after “the nature of the offense.” This change will assist defendants who may have multiple cases that are proceeding know the type of hearing for which he or she is summoned.

The Committee proposes amending subdivision (c)(7) (Determination of Voluntariness; Terms of Plea Agreement) of rule 3.172 (Acceptance of Guilty or Nolo Contendere Plea), to require that the terms of the plea agreement include the amount of time credited for time previously served and an explanation to the defendant that any credit for time served not included in the time specified would be a waiver of the defendant's right to such credit. While the Committee's proposal was based upon a referral from the Court that the Committee “propose language adding a provision to subdivision (c) concerning the trial court advising the defendant on the issue of credit for time served when determining the voluntariness of a plea of guilty or nolo contendere,” we decline to amend rule 3.172 as proposed. Instead, we agree with the comment from the FPDA that unintended consequences of the amendment may include impairment of plea bargaining, uninformed waivers, conflict with precedent, and an increase of judicial labor. However, technical changes to rule 3.172 are made.

Rule 3.180 (Presence of Defendant) is amended to resolve a conflict between rule 3.130 (First Appearance) and rule 3.180, by permitting a defendant to appear at the first appearance either physically or by electronic audiovisual device, as contemplated under rule 3.130.

Rule 3.191(l)(5) (Speedy Trial) is amended to correct the conjunction from “and” to “or” in the list of “exceptional circumstances” for which the trial court may order an extension of the time period for bringing a defendant to trial, as the trial court does not have to find more than one circumstance to grant an extension.

In regard to rule 3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition), the Committee originally proposed numerous changes. Following the comment by the FPDA, however, the Committee revised its proposal to amend rule 3.213 in its entirety. As amended, rule 3.213 is reorganized for clarity, to make it easier to determine the dismissal schedule within the rule. In addition, new subdivision (a)(3) (Dismissal without Prejudice during Continuing Incompetency) adds the provision for dismissal after three years if the charge is not listed in section 916.145(1), Florida Statutes (Dismissal of charges), as enacted in chapter 2016-135, section 3, Laws of Florida.

In addition to technical changes to rule 3.704 (The Criminal Punishment Code), new subdivisions (d)(24)(A)-(d)(24)(B) are added in response to chapter 2014-4, Laws of Florida, which amended section 921.0024, Florida Statutes, to provide that sentence points be multiplied by 2.0 for specified sex offenses committed by an adult upon a minor under certain circumstances, unless application of the multiplier results in the lowest permissible sentence exceeding the statutory maximum.

Rule 3.710(a) (Presentence Report; Cases in Which Court Has Discretion) is amended to clarify the rule by adding that, in addition to probation, a statutorily required mandatory minimum sentence may be imposed without a presentence investigation upon a defendant found guilty of a first felony offense or found guilty of a felony while under the age of eighteen. In addition, the term “shall” is replaced by “may,” because the sentence of probation or mandatory minimum is discretionary. Lastly, the language added to the end of subdivision (a), “The requirements of this subdivision are not applicable to a subsequent violation of probation proceeding,” is based upon Barber v. State, 293 So.2d 710 (Fla. 1974).

Rule 3.986 (Forms Related to Judgment and Sentence) is amended to simplify the rule by deleting the lists of costs, special provisions, and general provisions, and to require the court to insert these items. Following are changes to specific provisions of the rule. Under subdivision (c) (Form for Charges, Costs, and Fees), the checklist of charges/costs/fees is deleted and is replaced with the following directive: “[Insert list of mandatory fines, discretionary fines, and restitution, if any.]” In subdivision (d) (Form for Sentencing), the list of special provisions is deleted and instead is replaced with the following: “[Include all findings, sentencing enhancements, and mandatory minimum provisions, as authorized by law and pronounced at sentencing.]” A number of changes are made to subdivision (e) (Form for Order of Probation). First, the checklist of conditions of probation and special conditions is deleted, and is replaced with “GENERAL CONDITIONS: [List the general conditions of probation pursuant to section 948.03, Florida Statutes.]” and “SPECIAL CONDITIONS: [List the special conditions of probation as orally pronounced and authorized by law.]” In addition, below the space for “Other,” the paragraph pertaining to rescinding or modifying any of the conditions of probation is modified. Also, we delete the sentence “(This paragraph applies only if section 1 or section 2 is checked.)” under subdivision (e). Last, in subdivision (g) (Form for Restitution Order), the checklist of restitution options is deleted and replaced by the text “[Include all restitution and findings, as authorized by law and pronounced at sentencing.].”

Finally, we adopt a new form, rule 3.9876 (Motion for Correction of Sentence), which was suggested to the Committee by the Florida Supreme Court Criminal Court Steering Committee. The new form pertains to rule 3.800(a) motions, including those for correction of an illegal sentence, an incorrect sentencing scoresheet, or an erroneous sexual predator designation. The form is written in a “question-and-answer format,” similar to the format previously approved by the Court for rule 3.9875 (Motion for Jail Credit). See In re Amendments to Fla. Rules of Crim. Pro., 185 So.3d 1169 (Fla. 2015).

CONCLUSION

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2019, at 12:01 a.m.

It is so ordered.

APPENDIX

FOOTNOTES

1.   We issue this revised opinion in response to the Motion for Rehearing and Clarification and Notice of Scrivener's Error filed by the Criminal Procedure Rules Committee, requesting that the Court revise the amendment to rule 3.691 based on the Committee's mistaken proposal, and need to clarify that rules 3.172, 3.986, and 3.989 presented technical amendments which were not reflected in the Court's earlier opinion.

2.   See art. V, § 2(a), Fla. Const.

3.   The Committee originally proposed amending rule 3.111 (Providing Counsel to Indigents). However, upon concerns raised by the Committee's clerk representatives pertaining to that proposal, the Committee requested that the Court withdraw the proposal to amend rule 3.111. By this opinion we grant that request.

PER CURIAM.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.