Criminal Procedure

RULE 3.200. NOTICE OF ALIBI
On the written demand of the prosecuting attorney, specifying as particularly as is known to the 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 10 days before trial or such other time as the court may
direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an 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 the defendant or the defendant’s attorney, the names and
addresses of the witnesses by whom the defendant proposes to establish the alibi. Not more than 5 days after receipt
of defendant’s witness list, or any other time 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
state 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 who 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 the notice as herein required, the court may
exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant’s own
testimony. If the 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 the witness as particularly as is known to the
defendant or the defendant’s attorney is not stated in the 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 state
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 the witness as particularly as is known to the prosecuting attorney is not stated in the notice.
For good cause shown the court may waive the requirements of this rule.
Committee Notes
1968 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 in 1940); Ind.Ann.Stat. 9-1631, 9-1632, 9-1633 (1956) (enacted in 1935); 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 County Court
Criminal Practice Rule 3:5-9 (1948) (enacted in 1934); N.Y. Code of Crim. Proc. 295-L (1935) (enacted in 1935); Ohio Rev. Code Ann. 2945.58
(1953) (enacted in 1929); Okla.Stat.Ann. 22-585 (1937) (enacted in 1935); S.D. Code 34.2801 (1939) (enacted in 1935); 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 Jersey statutes:
(1) The requirement of notice in writing is taken from the Ohio statute.
(2) The requirement of an initial demand by the prosecuting attorney is based on the New York and New Jersey statutes.
(3) The requirement of a mutual exchange of witness lists is based on those statutes which require the defendant to disclose alibi witnesses. In
the interest of mutuality, the requirement of a reciprocal exchange of witness lists has been added. The enforcement provision is based on the
Ohio and New York statutes. In New York, a defendant who fails to give advance notice of alibi 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, court decisions thereunder, and some empirical data on the practical effect of the rules, see
David M. Epstein, “Advance Notice of Alibi,” 55 J. Crim. L. & Criminology 29 (1964).
1972 Amendment. Same as prior rule.
1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule.
RULE 3.201. [BATTERED-SPOUSE SYNDROME DEFENSE]
(a) [Notice of] Battered-Spouse Syndrome [Defense]. When in any criminal case it shall be intention of the
defendant to rely on the defense of battered-spouse syndrome at trial, no evidence offered by the defendant for the
purpose of establishing that defense shall be admitted in the case unless advance notice in writing of the defense shall
have been given by the defendant as hereinafter provided.
(b) Time for Filing Notice. The defendant shall give notice of intent to rely on the defense of battered-spouse
syndrome no later than 30 days prior to trial. The notice shall contain a statement of particulars showing the nature of
the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant
expects to show battered-spouse syndrome, insofar as possible.
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF
CAPITAL TRIAL: NOTICE AND EXAMINATION BY STATE EXPERT
(a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which
the state gives written notice of its intent to seek the death penalty within 45 days from the date of arraignment.
Failure to give timely written notice under this subdivision does not preclude the state from seeking the death
penalty.
(b) Notice of Intent to Present Expert Testimony of Mental Mitigation. When in any capital case, in which the
state has given notice of intent to seek the death penalty under subdivision (a) of this rule, it shall be the intention of
the defendant to present, during the penalty phase of the trial, expert testimony of a mental health professional, who
has tested, evaluated, or examined the defendant, in order to establish statutory or nonstatutory mental mitigating
circumstances, the defendant shall give written notice of intent to present such testimony.
(c) Time for Filing Notice; Contents. The defendant shall give notice of intent to present expert testimony of
mental mitigation not less than 20 days before trial. The notice shall contain a statement of particulars listing the
statutory and nonstatutory mental mitigating circumstances the defendant expects to establish through expert testimony
and the names and addresses of the mental health experts by whom the defendant expects to establish mental
mitigation, insofar as is possible.
(d) Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the
state indicating its desire to seek the death penalty, the court shall order that, within 48 hours after the defendant is
convicted of capital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for
the state and defendant may be present at the examination. The examination shall be limited to those mitigating
circumstances the defendant expects to establish through expert testimony.
(e) Defendant’s Refusal to Cooperate. If the defendant refuses to be examined by or fully cooperate with the
state’s mental health expert, the court may, in its discretion:
(1) order the defense to allow the state’s expert to review all mental health reports, tests, and evaluations by the
defendant’s mental health expert; or
(2) prohibit defense mental health experts from testifying concerning mental health tests, evaluations, or
examinations of the defendant.
RULE 3.203. DEFENDANT’S MENTAL RETARDATION AS A BAR TO IMPOSITION OF THE
DEATH PENALTY
(a) Scope. This rule applies in all first-degree murder cases in which the state attorney has not waived the death
penalty on the record and the defendant’s mental retardation becomes an issue.
(b) Definition of Mental Retardation. As used in this rule, the term “mental retardation” means significantly
subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested
during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,”
for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a
standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of
the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness
or degree with which an individual meets the standards of personal independence and social responsibility expected
of his or her age, cultural group, and community.
(c) Motion for Determination of Mental Retardation as a Bar to Execution: Contents; Procedures.
(1) A defendant who intends to raise mental retardation as a bar to execution shall file a written motion to
establish mental retardation as a bar to execution with the court.
(2) The motion shall state that the defendant is mentally retarded and, if the defendant has been tested,
evaluated, or examined by one or more experts, the names and addresses of the experts. Copies of reports containing
the opinions of any experts named in the motion shall be attached to the motion. The court shall appoint an expert
chosen by the state attorney if the state attorney so requests. The expert shall promptly test, evaluate, or examine the
defendant and shall submit a written report of any findings to the parties and the court.
(3) If the defendant has not been tested, evaluated, or examined by one or more experts, the motion shall state
that fact and the court shall appoint two experts who shall promptly test, evaluate, or examine the defendant and
shall submit a written report of any findings to the parties and the court.
(4) Attorneys for the state and defendant may be present at the examinations conducted by court-appointed
experts.
(5) If the defendant refuses to be examined or fully cooperate with the court appointed experts or the state’s expert,
the court may, in the court’s discretion:
(A) order the defense to allow the court-appointed experts to review all mental health reports, tests, and
evaluations by the defendant’s expert;
(B) prohibit the defense experts from testifying concerning any tests, evaluations, or examinations of the
defendant regarding the defendant’s mental retardation; or
(C) order such relief as the court determines to be appropriate.
(d) Time for filing Motion for Determination of Mental Retardation as a Bar to Execution.
(1) Cases in which trial has not commenced. In all cases in which trial has not commenced on October 1,
2004, the motion for a determination of mental retardation as a bar to execution shall be filed not later than 90 days
prior to trial, or if the trial is set earlier than 90 days from October 1, 2004, at such time as is ordered by the court.
(2) Cases in which trial has commenced on October 1, 2004. In all cases in which trial has commenced on
October 1, 2004, the motion shall be filed and determined before a sentence is imposed.
(3) Cases in which a direct appeal is pending. If an appeal of a circuit court order imposing a judgment of
conviction and sentence of death is pending on October 1, 2004, the defendant may file a motion to relinquish
jurisdiction for a mental retardation determination within 60 days of October 1, 2004. The motion shall contain a
copy of the motion to establish mental retardation as a bar to execution and shall contain a certificate by appellate
counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally
retarded.
(4) Cases in which the direct appeal is final; contents of motion; conformity with Florida Rule of
Criminal Procedure 3.851.
(A) A motion for postconviction relief seeking a determination of mental retardation made by counsel for the
prisoner shall contain a certification by counsel that the motion is made in good faith and on reasonable grounds to
believe that the prisoner is mentally retarded.
(B) If a death sentenced prisoner has not filed a motion for postconviction relief on or before October 1, 2004,
the prisoner shall raise a claim under this rule in an initial rule 3.851 motion for postconviction relief.
(C) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has not been
ruled on by the circuit court on or before October 1, 2004, the prisoner may amend the motion to include a claim
under this rule within 60 days after October 1, 2004.
(D) If a death-sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on
by the circuit court but the prisoner has not filed an appeal on or before October 1, 2004, the prisoner shall file a
supplemental motion in the circuit court raising the mental retardation claim. The prisoner’s time for filing an appeal
of the ruled-upon postconviction motion is stayed until the circuit court rules upon the mental retardation claim.
(E) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on by
the circuit court and an appeal is pending on or before October 1, 2004, the prisoner may file a motion in the supreme
court to relinquish jurisdiction to the circuit court for a determination of mental retardation within 60 days from October
1, 2004. The motion to relinquish jurisdiction shall contain a copy of the motion to establish mental retardation as a bar
to execution, which shall be raised as a successive rule 3.851 motion, and shall contain a certificate by appellate counsel
that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally retarded.
(F) If a death sentenced prisoner has filed a motion for postconviction relief, the motion has been ruled on by
the circuit court, and that ruling is final on or before October 1, 2004, the prisoner may raise a claim under this rule
in a successive rule 3.851 motion filed within 60 days after October 1, 2004. The circuit court may reduce this time
period and expedite the proceedings if the circuit court determines that such action is necessary.
(e) Hearing on Motion to Determine Mental Retardation. The circuit court shall conduct an evidentiary
hearing on the motion for a determination of mental retardation. At the hearing, the court shall consider the findings
of the experts and all other evidence on the issue of whether the defendant is mentally retarded. The court shall enter
a written order prohibiting the imposition of the death penalty and setting forth the court’s specific findings in
support of the court’s determination if the court finds that the defendant is mentally retarded as defined in
subdivision (b) of this rule. The court shall stay the proceedings for 30 days from the date of rendition of the order
prohibiting the death penalty or, if a motion for rehearing is filed, for 30 days following the rendition of the order
denying rehearing, to allow the state the opportunity to appeal the order. If the court determines that the defendant
has not established mental retardation, the court shall enter a written order setting forth the court’s specific findings
in support of the court’s determination.
(f) Waiver. A claim authorized under this rule is waived if not filed in accord with the time requirements for
filing set out in this rule, unless good cause is shown for the failure to comply with the time requirements.
(g) Finding of Mental Retardation; Order to Proceed. If, after the evidence presented, the court is of the
opinion that the defendant is mentally retarded, the court shall order the case to proceed without the death penalty as
an issue.
(h) Appeal. An appeal may be taken by the state if the court enters an order finding that the defendant is mentally
retarded, which will stay further proceedings in the trial court until a decision on appeal is rendered. Appeals are to
proceed according to Florida Rule of Appellate Procedure 9.140(c).
(i) Motion to Establish Mental Retardation as a Bar to Execution; Stay of Execution. The filing of a motion
to establish mental retardation as a bar to execution shall not stay further proceedings without a separate order
staying execution.
RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE FOR RAISING THE ISSUE
(a) Proceedings Barred during Incompetency. 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, pretrial 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 that do not require the personal participation of the defendant.
(b) Motion for Examination. 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 state, 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 3, nor fewer than 2, experts prior to the date of the
hearing. Attorneys for the state and the defendant may be present at the examination.
(1) A written motion for the 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 that have formed the basis for the motion.
(2) A written motion for the examination made by counsel for the state 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 that have formed the basis for the motion, including a recitation of the
observations of and statements of the defendant that have caused the state to file the 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 the defendant’s competency
to proceed. A motion made for evaluation under this subdivision shall not otherwise affect the defendant’s
right to release.
(4) The order appointing experts shall:
(A) identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and
specify the area or areas of inquiry that should be addressed by the evaluator;
(B) specify the legal criteria to be applied; and
(C) specify the date by which the report should be submitted and to whom the report should be submitted.
Committee Notes
1968 Adoption. (a) Same as section 917.01, Florida Statutes, except it was felt that court cannot by rule direct institution officials. Thus words,
“he shall report this fact to the court which conducted the hearing. If the officer so reports” and concluding sentence, “No defendant committed
by a court to an institution, by reason of the examination referred to in this paragraph, shall be released therefrom, without the consent of the
court committing him,” should be omitted from the rule but retained 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 confine an insane person who is likely to
cause harm to others even if the person is otherwise entitled to bail. The amendment does not apply unless the defendant contends that he or she is
insane at the time of trial or at the time the offense was committed. The purpose of the amendment is to prevent admittedly insane persons from
being at large when there is a likelihood they may injure themselves or others.
1977 Amendment. This language is taken, almost verbatim, from existing rule 3.210(a). The word “insane” is changed to reflect the new
terminology, “competence to stand trial.” The definition of competence to stand trial is taken verbatim from the United States Supreme Court
formulation of the test in Dusky v. 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, almost verbatim, from the existing rule. The right of counsel for the state to move for such
examination has been added.
(b)(1) In order to confine the defendant as incompetent to stand trial, the defendant must be confined under the same standards as those used
for civil commitment. These criteria were set 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), in which it was held to be a denial of equal protection to subject a criminal defendant to a more lenient commitment standard
than would be applied to one not charged with a crime. Therefore, the criteria for involuntary civil commitment should be incorporated as the
criteria for commitment for incompetence to stand trial.
In this subdivision is found the most difficult of the problems to resolve for the rule. The head-on conflict between the Department of Health
and Rehabilitative Services, a part of the executive branch of the government, and the courts occurs when the administrator determines that a
defendant no longer should be confined, but the trial judge does not wish the defendant released because the trial judge feels that further
commitment is necessary. Under the civil commitment model, the administrator has the power to release a committed patient at such time as the
administrator feels the patient no longer meets the standards for commitment. Obviously, since a defendant in a criminal case is under the
jurisdiction of the court, such immediate release is unwarranted.
The time period of the initial commitment parallels that of civil commitment.
(b)(2) treats the problem of what the court should do with a defendant who is not competent to stand trial, but who fails to meet the criteria for
commitment. If incompetent, but not in need of treatment and not dangerous, then the defendant cannot be committed. The present rule provides
for dismissal of the charges immediately. There appears to be no reason why someone in this situation should not be released pending trial on
bail, as would other defendants.
The finding of “not guilty by reason of insanity,” required under the present rule when a defendant cannot be tried by reason of incompetence,
seems inappropriate since such a defense admits the commission of the fact of the crime but denies the defendant’s mental state. Since no such
finding has been made (and cannot be made), the verdict entered of not guilty by reason of insanity is not appropriate. Further, it would give a
defendant, later competent, a res judicata or double jeopardy defense, the verdict being a final determination of guilt or innocence. It would seem
far more appropriate to withdraw the charges. A defendant who regains competence within the period of the statute of limitations could still be
tried for the offense, if such trial is warranted.
One of the major problems confronting the institution in which an incompetent person is being held is that of obtaining consent for medical
procedures and treatment, not necessarily mental treatment. Generally, under the statute, the patient civilly committed is not thereby deemed
incompetent to consent. At the commitment hearing in the civil proceedings, the judge may make the general competency determination. It is
recommended that the same process apply in the hearing on competency to stand trial, and that, if the trial judge does not find the defendant
incompetent for other purposes, the defendant be legally considered competent for such other purposes.
1980 Amendment.
(a) This provision is identical to 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 subdivision should be read
in conjunction with rule 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 2 but no more than 3 experts is meant to
coincide with section 394.02, Florida Statutes (1979), in which the legislature provides for the number of experts to be appointed and that at least
1 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 legislature, 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 mandatesuch specific procedures in a statewide 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 should be appointed 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
these 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 pretrial release provision. If a defendant has been released on bail, the judgment already having been made
that he or she is so entitled, and as long as the defendant will continue to appear for appropriate evaluations, the mere fact that the motion was
filed should not abrogate the right to bail. Obviously, if other factors would affect the defendant’s right to release or would affect the right to
release on specific release conditions, those conditions could be changed or the 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.
1988 Amendment. Title. The title is amended to reflect change in subdivision (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 subdivision (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 rule 3.740 and is now addressed with more specificity in the new
rule 3.214. Under the Florida Supreme Court decision of Jackson v. State, 452 So.2d 533 (Fla. 1984), this definition would not apply to a motion
under rule 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 subdivision (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.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. In 1985, the Florida Legislature enacted amendments to part I of chapter
394, the “Florida Mental Health Act,” and substantial amendments to chapter 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 section 394.467, 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 rules 3.210 to 3.219 are designed to reflect the 1985 amendments to chapters 394 and 916.
Florida judges on the criminal bench are committing and the Department of Health and Rehabilitative Services (HRS) 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 rules 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 HRS when a defendant meets
commitment criteria under the provisions of chapter 916 as amended in 1985.
RULE 3.211. COMPETENCE TO PROCEED: SCOPE OF EXAMINATION AND REPORT
(a) Examination by Experts. Upon appointment by the court, the experts shall examine the defendant with
respect to the issue of competence 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 counsel with a
reasonable degree of rational understanding and whether the defendant has a rational, as well as factual,
understanding of the pending proceedings.
(2) In considering the issue of competence to proceed, the examining experts shall consider and include in their
report:
(A) the defendant’s capacity to:
(i) appreciate the charges or allegations against the defendant;
(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the
proceedings against the defendant;
(iii) understand the adversary nature of the legal process;
(iv) disclose to counsel facts pertinent to the proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the experts.
(b) Factors to Be Evaluated. 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:
(1) the mental illness or mental retardation causing the incompetence;
(2) the 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;
(3) the availability of acceptable treatment. If treatment is available in the community, the expert shall so state
in the report; and
(4) the 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) Insanity. 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) Written Findings of Experts. 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; and
(4) identify the sources of information used by the expert and present the factual basis for the expert’s clinical
findings and opinions.
(e) Limited Use of Competency Evidence.
(1) The information contained in any motion by the defendant for determination of competency to proceed or in
any report of experts filed under this rule insofar as the 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 rule, shall be used only in determining the mental competency to proceed or the commitment or other
treatment of the defendant.
(2) 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 state may request the
production of any other portion of that report that, in fairness, ought to be considered.
Committee Notes
1980 Adoption. This rule 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 subdivision, 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, 362 U.S.
402, 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 (HRS) in its
Competency Evaluation Instrument, a refinement of the McGarry Competency Evaluation Procedure.
(b) The issue of involuntary hospitalization is to be considered only if the court has ordered the experts to consider this issue; 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 that have been developed through prior statutes relating to involuntary hospitalization, from the
case of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), and In Re: Beverly, 342 So.2d 481 (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 394.467(1), Florida Statutes (1979), prescribes criteria for involuntary hospitalization or placement. In case of mental retardation,
section 393.11, 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 2 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 HRS from suggesting a form that would be of particular assistance to them and requesting its adoption, but adoption is not
mandated.
(e) This subdivision provides for the confidentiality of the information obtained by virtue of an examination of the defendant pursuant to this
subdivision. Cf. §90.108, Fla.Stat. (1979); Fla.R.Civ.P. 1.330(6).
Section 916.12, Florida Statutes is a companion statute relating to mental competence to stand trial.
1988 Amendment. Title. The title is amended to reflect changes in rule 3.210.
(a) This subdivision, which was originally an introductory paragraph, is amended to reflect changes in rule 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 rule 3.210(4) above.
(1) This subdivision, which was formerly subdivision (a), has been amended to reflect changes in rule 3.210 above.
(2) This provision has been amended to reflect the changes to rule 3.210. In addition, the 11 factors previously numbered (i) through (xi)
have been reduced to 6 factors. Numbers (v), (vi), (vii), (x), and (xi) have been removed. Those 5 factors were felt to not be directly related to the
issue of a defendant having the mental capacity to communicate with his or her attorney or to understand the proceedings against him or her 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 subdivision, including its 4 subdivisions, is amended to reflect the changes in rule 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. Subdivision (v) has been deleted because consideration of less restrictive alternatives is addressed in other
amendments. [See rule 3.212(c)(3)(iv).] The amendments further reflect 1985 legislative amendments to chapters 394 and 916, Florida Statutes.
(ii) Appropriate treatment may include maintaining the defendant on psychotropic or other medication. See rule 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 4 subdivisions, 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, and that the
report identifies sources of information, tests or evaluation techniques used, and includes 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 rule 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.
1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.212. COMPETENCE TO PROCEED: HEARING AND DISPOSITION
(a) Admissibility of Evidence. 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) Finding of Competence. 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) Commitment on Finding of Incompetence. 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 and 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
subdivision (3).
(3) A defendant may be committed for treatment to restore a defendant’s competence to proceed if the court
finds that:
(A) the defendant meets the criteria for commitment as set forth by statute;
(B) 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;
(C) treatment appropriate for restoration of the defendant’s competence to proceed is available; and
(D) 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:
(A) findings of fact relating to the issues of competency and commitment addressing the factors set forth in
rule 3.211 when applicable;
(B) copies of the reports of the experts filed with the court pursuant to the order of examination;
(C) copies of any other psychiatric, psychological, or social work reports submitted to the court relative to the
mental state of the defendant; and
(D) copies 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 6 months from the date of admission, the administrator of the facility shall file with the
court a report that shall address the issues and consider the factors set forth in rule 3.211, with copies to all parties.
If, at any time during the 6-month period or during any period of extended commitment that may be ordered
pursuant to this rule, the administrator of the facility determines 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.
(A) If, during the 6-month period of commitment and treatment or during any period of extended commitment
that may be ordered pursuant to this rule, 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, counsel may move for a hearing
on the issue of the defendant’s competence or commitment. The 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 that have formed
the basis for the motion.
(B) If, upon consideration of a motion filed by counsel for the defendant or the prosecuting attorney 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 shall 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 the hearing, the court determines that the defendant continues to be
incompetent to proceed and that the defendant meets the criteria for continued commitment or treatment, the court shall
order continued commitment or treatment for a period not to exceed 1 year. When the defendant is retained by the facility,
the same procedure shall be repeated prior to the expiration of each additional 1-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 determines that the defendant remains incompetent to proceed but no
longer meets the criteria for commitment, the court shall proceed as provided in rule 3.212(d).
(d) Release on Finding of Incompetence. 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 1 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 the 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.
Committee Notes
1980 Adoption. This rule sets forth the procedure for the hearing itself. If other experts have been involved who were not appointed pursuant to this
rule, 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. If a party calls an expert witness other than those appointed by the court pursuant to these rules, the usual evidentiary rules of
examining such witnesses shall then apply. Following the hearing, the court may come to one of 3 conclusions: (a) the defendant is competent to stand
trial, rule 3.212(a); (b) the defendant is incompetent to stand trial and is in need of involuntary hospitalization, rule 3.212(b); or (c) the defendant is
incompetent to stand trial but is not in need of involuntary hospitalization, rule 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 subdivision 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 are set forth in section 394.467(1), Florida Statutes (1979). As to involuntary hospitalization for
mental retardation, see section 393.11, Florida Statutes (1979); definition of treatment facility, see section 394.455, Florida Statutes (1979);
involuntary admission to residential services, see section 393.11, 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 the 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 or she can discuss
the charge with “a reasonable degree of rational understanding.”
(3) This subdivision 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 subdivision 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 reevaluation
of the defendant’s mental status. At the end of the 6-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 the attorney 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, one who 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 394.467(1), Florida Statutes (1979).
Section 916.13, Florida Statutes complements this rule and provides for the hospitalization of defendants adjudicated incompetent to stand trial.
1988 Amendment. Title. The title has been amended to reflect changes in rules 3.210 and 3.211.
(a) This provision was formerly the introductory paragraph to this rule. It has been labeled subdivision (a) for consistency in form.
(b) This provision was former subdivision (a). It has been amended to reflect changes in rules 3.210 and 3.211. The former subdivisions (b)
and (b)(1) have been deleted because similar language is now found in new subdivision (c).
(c) This new provision, including all its subdivisions, is designed to reflect the commitment criteria in section 916.13(1), Florida Statutes, and
to reflect that commitment to the Department of Health and Rehabilitative Services 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 subdivisions, outlines when a defendant may be committed and refers to commitment criteria under the
provisions of section 916.13(1), Florida Statutes.
(4) This provision, and its subdivisions, was formerly subdivision (b)(2). The language has been amended to reflect changes in chapter 916
relating to the commitment of persons found incompetent to proceed and changes in rules 3.210 and 3.211.
(5) This provision, and its subdivisions, was formerly subdivision (b)(3). The amendments are for the same reasons as (4) above.
(6) This provision was formerly subdivision (b)(4). The amendments are for the same reasons as (4) above.
(7) This provision was formerly subdivision (b)(5). The amendments are for the same reasons as (4) above.
(8) This provision was formerly subdivision (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.
1992 Amendment. The amendments substitute “shall” in place of “may” in subdivision (c)(5)(B) 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 issue of competency when 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 amendments also gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO
PROCEED WITH SENTENCING: DISPOSITION
(a) Dismissal without Prejudice during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed
with a probation or community control violation hearing when charged with a felony, or 1 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 state to refile the charges should the defendant be declared competent
to proceed in the future.
(2) If the incompetency to stand trial or to proceed is due to retardation or autism, the court shall dismiss the
charges within a reasonable time after such determination, not to exceed 2 years for felony charges and 1 year for
misdemeanor charges, unless the court specifies in its order the reasons for believing that the defendant will become
competent within the foreseeable future and specifies the time within which the defendant is expected to become
competent. The dismissal shall be without prejudice to the state to refile should the defendant be declared competent
to proceed in the future.
(b) Commitment or Treatment during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed
with a probation or community control violation hearing when charged with a felony, or 1 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 Children and Family Services for
involuntary hospitalization or residential services solely under the provisions of law or may order that the defendant
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 state
attorney 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 subdivision, the dismissal shall be without prejudice to the state to refile the
charges should the defendant be declared competent to proceed in the future.
(2) If the continuing incompetency is due to retardation or autism, and the defendant either lacks the ability to
provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be
involuntarily admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants determined to be incompetent to proceed with
sentencing, which is addressed in rule 3.214.
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section 394.467(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 5 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 state attorney prior to any release of a defendant committed pursuant to this subdivision.
As to criteria for involuntary hospitalization, see section 394.467(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 916.14, 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.
1988 Amendment. Title. The title has been amended to comply with changes in rule 3.210, but specifically excludes competency to proceed
with sentencing, which is addressed in the new rule 3.214.
(a) This provision was amended to reflect changes in rules 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 state to refile if the defendant is declared competent to proceed in the future. Similar
language was previously found in rule 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 rule 3.214. It is replaced by the new rule 3.214.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.214. INCOMPETENCY TO PROCEED TO SENTENCING: DISPOSITION
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 rule 3.210 (et seq.) and the following rules.
Committee Note
1988 Amendment. Title. This new rule replaces the former rule 3.740. It was felt to be more appropriately addressed in this sequence. The
former rule 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 rule 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.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.215. EFFECT OF ADJUDICATION OF INCOMPETENCY TO PROCEED:
PSYCHOTROPIC MEDICATION
(a) Former Jeopardy. If the defendant is declared incompetent to stand trial during trial and afterwards declared
competent to stand trial, the defendant’s other uncompleted trial shall not constitute former jeopardy.
(b) Limited Application of Incompetency Adjudication. 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) Psychotropic Medication. A defendant who, because of psychotropic medication, is able to understand the
proceedings and to assist in the defense shall not automatically be deemed incompetent to proceed simply because
the defendant’s satisfactory mental condition is dependent on such medication, nor shall the defendant be prohibited
from proceeding solely because the defendant 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.
Committee Notes
1980 Adoption. (c) As to psychotropic medications, see section 916.12(2), Florida Statutes (1980).
(d) This subdivision is intended to provide specific exceptions to the speedy trial rule.
1988 Amendment. Title. This rule was formerly rule 3.214.
The amendments to this rule, including the title, are designed to reflect amendments to rules 3.210 and 3.211.
(d) Matters contained in former subsection (d) are covered by the provisions of rule 3.191. That subsection has therefore been deleted.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.216. INSANITY AT TIME OF OFFENSE OR PROBATION OR COMMUNITY CONTROL
VIOLATION: NOTICE AND APPOINTMENT OF EXPERTS
(a) Expert to Aid Defense Counsel. 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 the defendant may have been insane at the time of the offense or probation or community
control violation, counsel may so inform the court who shall appoint 1 expert to examine the defendant in
order to assist counsel in the preparation of the defense. The 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) Notice of Intent to Rely on Insanity Defense. 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 that defense shall be admitted in the case unless
advance notice in writing of the defense shall have been given by the defendant as hereinafter provided.
(c) Time for Filing Notice. 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. The 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 the
defendant expects to show insanity, insofar as is possible.
(d) Court Appointed Experts. On the filing of such notice the court may on its own motion, and shall on motion
of the state or the defendant, order that the defendant be examined by no more than 3 nor fewer than 2 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 state and defendant may be present at the examination.
The 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) Time for Filing Notice of Intent to Rely on a Mental Health Defense Other than Insanity. The defendant
shall give notice of intent to rely on any mental health defense other than insanity as soon as a good faith
determination has been made to utilize the defense but in no event later than 30 days prior to trial. The notice shall
contain a statement of particulars showing the nature of the defense the defendant expects to prove and the names
and addresses of the witnesses by whom the defendant expects to prove the defense, insofar as possible. If expert
testimony will be presented, the notice shall indicate whether the expert has examined the defendant.
(f) Court-Appointed Experts for Other Mental Health Defenses. If the notice to rely on any mental health
defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the
defendant, the court shall upon motion of the state order the defendant be examined by one qualified expert as to the
mental health defense raised by the defendant. Upon a showing of good cause, the court may order additional examinations
upon motion by the state or the defendant. Attorneys for the state and defendant may be present at the
examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state
shall not be entitled to a compulsory examination of the defendant.
(g) Report of Experts to Court. 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 state and the defense, a report that
shall contain:
(1) a description of the evaluative techniques that were used in their examination;
(2) a 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) a statement of all relevant factual information regarding the defendant’s behavior on which the conclusions
or opinions regarding the defendant’s mental condition were based; and
(4) an 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.
(h) Waiver of Time to File. On good cause shown for the omission of the notice of intent to rely on the defense
of insanity, or any mental health defense, the court may in its discretion grant the defendant 10 days to comply with
the notice requirement. If leave is granted and the defendant files the notice, the defendant 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 rule. Any motion for mistrial shall
constitute a waiver of the defendant’s right to any claim of former jeopardy arising from the uncompleted trial.
(i) Evaluating Defendant after Pretrial Release. 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 the 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 subdivision
shall not otherwise affect the defendant’s right to pretrial release.
(j) Evidence. The appointment of experts by the court shall not preclude the state 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 by either party. Other evidence regarding the
defendant’s insanity or mental condition 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.
Committee Notes
1980 Adoption.
(a) This subdivision is based on Pouncy v. State, 353 So.2d 640 (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 court-appointed 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 that attorney 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 15-day 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 rule, 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.
(g) In order to obtain more standardized reports, specific items relating to the examination are required of the examining experts. See note to
rule 3.211(a).
(h) Essentially the substance of prior rule 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.
(i) Same as rule 3.210(b)(3), relating to incompetency to stand trial. See commentary to that rule.
(j) A restatement of former rule 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 912.11, Florida Statutes.
1988 Amendment. 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.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
1996 Amendment. Subdivisions (e) and (f) were added to conform to State v. Hickson, 630 So.2d 172 (Fla. 1993). These amendments are not
intended to expand existing case law.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF INSANITY: DISPOSITION OF
DEFENDANT
(a) Verdict of Not Guilty by Reason of Insanity. When a person is found by the jury or the court not guilty of
the offense or is found not to be in violation of probation or community control by reason of insanity, the jury or
judge, in giving the verdict or finding of not guilty judgment, shall state that it was given for that reason.
(b) Treatment, Commitment, or Discharge after Acquittal. When a person is found not guilty of the offense or
is found not to be in violation of probation or community control by reason of insanity, if the court then determines
that the defendant presently meets the criteria set forth by law, the court shall commit the defendant to the
Department of Children and Family Services or shall order outpatient treatment at any other appropriate facility or
service, or shall discharge the defendant. Any order committing the defendant or requiring outpatient treatment or
other outpatient service shall contain:
(1) findings of fact relating to the issue of commitment or other court-ordered treatment;
(2) copies of any reports of experts filed with the court; and
(3) any other psychiatric, psychological, or social work report submitted to the court relative to the mental state
of the defendant.
Committee Notes
1980 Adoption.
(a) Same substance as in prior rule.
(b) The criteria for commitment are set forth in chapter 394, Florida Statutes. This rule incorporates those statutory criteria by reference and
then restates the other alternatives available to the judge under former rule 3.210.
See section 912.18, Florida Statutes, for criteria.
(1) This subdivision is equivalent to rule 3.212(b)(2); see commentary to that rule.
1988 Amendment. 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 chapter 916, Florida Statutes.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.218. COMMITMENT OF A DEFENDANT FOUND NOT GUILTY BY REASON OF
INSANITY
(a) Commitment; 6-Month Report. The Department of Children and Family Services shall admit to an
appropriate facility a defendant found not guilty by reason of insanity under rule 3.217 and found to meet the criteria
for commitment for hospitalization and treatment and may retain and treat the defendant. No later than 6 months
from the date of admission, the administrator of the facility shall file with the court a report, and provide copies to all
parties, which shall address the issues of further commitment of the defendant. If at any time during the 6-month
period, or during any period of extended hospitalization that may be ordered under this rule, 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 and provide copies to all parties.
(b) Right to Hearing if Committed upon Acquittal. The court shall hold a hearing within 30 days of the receipt
of any report from the administrator of the facility on the issues raised thereby, and the defendant shall have a right
to be present at the hearing. If 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 1 year.
The same procedure shall be repeated before the expiration of each additional 1-year period in which the defendant
is retained by the facility.
(c) Evidence to Determine Continuing Insanity. Before any hearing held under this rule, the court may, on its
own motion, and shall, on motion of counsel for the state or defendant, appoint no fewer than 2 nor more than 3
experts to examine the defendant relative to the criteria for continued commitment or placement of the defendant and
shall specify the date by which the experts shall report to the court on these issues and provide copies to all parties.
Committee Notes
1980 Adoption. 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 6-month period of
commitment with successive 1-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 rule 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 912.15, Florida
Statutes.
1988 Amendment. 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 chapter 916, Florida Statutes.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.219. CONDITIONAL RELEASE
(a) Release Plan. 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. When the administrator shall determine
outpatient treatment of the defendant to be appropriate, the administrator may file with the court, and provide copies to
all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. The plan
may be submitted by the defendant. The plan shall include:
(1) special provisions for residential care, adequate supervision of the defendant, or both;
(2) provisions for outpatient mental health services; and
(3) if 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, and provide copies to all parties.
(b) Defendant’s Failure to Comply. If it appears at any time 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, after hearing, may 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 Children and Family Services for further treatment.
(c) Discharge. 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.
Committee Notes
1980 Adoption. This rule implements the prior statutory law permitting conditional release.
For complementary statute providing for conditional release, see section 916.17, Florida Statutes.
1988 Amendment. The amendments to this rule are designed to reflect amendments to rules 3.210, 3.211, and 3.218 as well as 1985
amendments to chapter 916, Florida Statutes.
(b) This provision has been amended to permit the court to recommit a conditionally released defendant to HRS under the provisions of
chapter 916 only if the court makes a finding that the defendant currently meets the statutory commitment criteria found in section 916.13(1),
Florida Statutes.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
VI. DISCOVERY
RULE 3.220. DISCOVERY
(a) Notice of Discovery. After the filing of the charging document, a defendant may elect to participate in the
discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and
serving on the prosecuting attorney a “Notice of Discovery” which shall bind both the prosecution and defendant to
all discovery procedures contained in these rules. Participation by a defendant in the discovery process, including the
taking of any deposition by a defendant or the filing of a public records request under chapter 119, Florida Statutes,
for law enforcement records relating to the defendant’s pending prosecution, which are nonexempt as a result of a
codefendant’s participation in discovery, shall be an election to participate in discovery and triggers a reciprocal
discovery obligation for the defendant. If any defendant knowingly or purposely shares in discovery obtained by a
codefendant, the defendant shall be deemed to have elected to participate in discovery.
(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery
Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the
following information and material within the state’s possession or control:
(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be
relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under
section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the
following categories:
(i) Category A. These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi
witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a
defendant or codefendant, which shall be separately identified within this category, (4) investigating officers, (5)
witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as
to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report
and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set
forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
(ii) Category B. All witnesses not listed in either Category A or Category C.
(iii) Category C. All witnesses who performed only ministerial functions or whom the prosecutor does not
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;
(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The
term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or
approved by the person and also includes any statement of any kind or manner made by the 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 those reports are compiled;
(C) any written or recorded statements and the substance of any oral statements made by the defendant,
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;
(D) any written or recorded statements and the substance of any oral statements made by a codefendant if
the trial is to be a joint one;
(E) those portions of recorded grand jury minutes that contain testimony of the defendant;
(F) any tangible papers or objects that were obtained from or belonged to the defendant;
(G) whether the state has any material or information that has been provided by a confidential informant;
(H) whether there has been any electronic surveillance, including wiretapping, of the premises of the
defendant or of conversations to which the defendant was a party and any documents relating thereto;
(I) whether there has been any search or seizure and any documents relating thereto;
(J) reports 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; and
(K) any tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial and that
were not obtained from or that did not belong to the defendant.
(2) 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
the police report may seriously impair law enforcement or jeopardize the investigation of those other crimes or
activities, the court may prohibit or partially restrict the disclosure.
(3) The court may prohibit the state 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.
(4) As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant
any material information within the state’s possession or control that tends to negate the guilt of the defendant as to any
offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

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Criminal

RULE 3.191. SPEEDY TRIAL
(a) Speedy Trial without Demand. Except as otherwise provided by this rule, and subject to the limitations
imposed under subdivisions (e) and (f), every person charged with a crime shall be brought to trial within 90 days of
arrest if the crime charged is a misdemeanor, or within 175 days of arrest 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
subdivision (p). The time periods established by this subdivision shall commence when the person is taken into
custody as defined under subdivision (d). A person charged with a crime is entitled to the benefits of this rule
whether the person is in custody in a jail or correctional institution of this state or a political subdivision thereof or is
at liberty on bail or recognizance or other pretrial release condition. This subdivision shall cease to apply whenever a
person files a valid demand for speedy trial under subdivision (b).
(b) Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations
imposed under subdivisions (e) and (g), 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 a separate pleading entitled “Demand for Speedy
Trial,” and serving a copy on the prosecuting authority.
(1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with
notice to all parties, for the express purposes of announcing in open court receipt of the demand 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 a calendar call on a demand that has been properly filed and served shall
not interrupt the running of any time periods under this subdivision.
(4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall
have the right to the appropriate remedy as set forth in subdivision (p).
(c) Commencement of Trial. A person shall be considered to have been brought to trial if the trial commences
within the time herein provided. The trial is considered to have commenced when the trial jury panel for that specific
trial is sworn for voir dire examination or, on waiver of a jury trial, when the trial proceedings begin before the
judge.
(d) Custody. For purposes of this rule, a person is taken into custody (1) when the person is arrested as a result of the
conduct or criminal episode that gave rise to the crime charged, or (2) when the person is served with a notice to appear
in lieu of physical arrest.
(e) Prisoners outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional
institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment
or information issued or filed under the laws of this state, is not entitled to the benefit of this rule 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 the person’s return is filed with the court and served on the prosecutor. For these persons, the time period under
subdivision (a) commences on the date the last act required under this subdivision occurs. For these persons the time
period under subdivision (b) commences when the demand is filed so long as the acts required under this subdivision
occur before the filing of the demand. If the acts required under this subdivision do not precede the filing of the demand,
the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing in this rule shall affect a
prisoner’s right to speedy trial under law.
(f) Consolidation of Felony and Misdemeanor. When a felony and a misdemeanor are consolidated for
disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.
(g) Demand for Speedy Trial; Accused Is Bound. A demand for speedy trial binds the accused and the state. 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 considered a pleading that the accused is available
for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days. A demand
filed by an accused who has not diligently investigated the 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 state or on good cause shown. Good cause for continuances or delay on behalf
of the accused thereafter shall not include nonreadiness for trial, except as to matters that may arise after the demand
for trial is filed and that reasonably could not have been anticipated by the accused or counsel for the accused. 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 rule.
(h) Notice of Expiration of Time for Speedy Trial; When Timely. A notice of expiration of speedy trial time
shall be timely if filed and served on or after the expiration of the periods of time for trial provided in this rule.
However, a notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid
and shall be stricken on motion of the prosecuting attorney.
(i) When Time May Be Extended. The periods of time established by this rule may be extended, provided the
period of time sought to be extended has not expired at the time the extension was procured. An extension may be
procured by:
(1) 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;
(2) 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 subdivision (l);
(3) written or recorded order of the court with good cause shown by the accused; or
(4) 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 pretrial motions, for appeals by the state, and for trial of other
pending criminal charges against the accused.
(j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of
time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:
(1) a time extension has been ordered under subdivision (i) and that extension has not expired;
(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
(3) the accused was unavailable for trial under subdivision (k); or
(4) the demand referred to in subdivision (g) is invalid.
If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (3), or (4), the pending
motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days
of a written or recorded order of denial.
(k) Availability for Trial. A person is unavailable for trial if the person or the person’s counsel fails to attend a
proceeding at which either’s presence is required by these rules, 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 in this rule is not
entitled to be discharged. No presumption of nonavailability attaches, but if the state objects to discharge and
presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability
during the term.
(l) Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the
time periods provided under this rule when 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 that, as a matter of substantial
justice to the accused or the state or both, require an order by the court. These 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 state that the case is so unusual and so complex, because of 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 rule;
(3) a showing by the state 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 state of necessity for delay grounded on developments that could not have
been anticipated and that materially will affect the trial;
(5) a showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the
cases to proceed promptly with trial of the defendant; and
(6) a showing by the state that the accused has caused major delay or disruption of preparation of proceedings,
as by preventing the attendance of witnesses or otherwise.
(m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been
delayed by an appeal by the state 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 a reviewing court that 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 subdivision (p).
(n) Discharge from Crime; Effect. Discharge from a crime under this rule 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 that were or might have been charged as a result of the same conduct or criminal episode as a lesser
degree or lesser included offense.
(o) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state 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.
(p) Remedy for Failure to Try Defendant within the Specified Time.
(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry
under subdivision (j).
(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading
entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall
hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall
order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period
through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the
crime.
Committee Notes
1972 Amendment. Same as prior rule. The schedule is omitted as being unnecessary.
1977 Amendment. An appeal by the state 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.
1980 Amendment.
(a)(1). Speedy Trial without 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 subdivision 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 upon Demand.
1. Trial cannot be scheduled within 5 days of the filing of the demand without the consent of both the state 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 subdivision 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 outside 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 941.45–941.50, 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 subdivision recognizes that an invalid (spurious) demand must be stricken.
2. The subdivision now puts a 5-day 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 Be Extended.
1. The terms “waiver,” “tolling,” or “suspension” have no meaning within the context of the subdivision as amended. The subdivision
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, the court 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 2 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 mistrial, order of new trial, or appeal by the state or
defendant.
(h)(1). Discharge from Crime.
1. No change.
(h)(2). Nolle Prosequi.
1. No change.
1984 Amendment.
(a)(1). Repeals the remedy of automatic discharge from the crime and refers instead to the new subdivision on remedies.
(a)(2). Establishes the calendar call for the demand for speedy trial when filed. This provision, especially sought by prosecutors, brings the
matter to the attention of both the court and the prosecution. The subdivision again repeals the automatic discharge for failure to meet the
mandated time limit, referring to the new subdivision 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 subdivision 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 15-day
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.
1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule. In addition, the committee recommends the
rule be amended to differentiate between 2 separate and distinct pleadings now referred to as “motion for discharge.” The initial “motion for
discharge” has been renamed “notice of expiration of speedy trial time.”

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Criminal Law

(l) Form of Notice to Appear and Schedule of Witnesses and Evidence. The notice to appear and schedule of
witnesses and evidence 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 or she has just and reasonable
grounds to believe, and does believe, that:
On …..(date)….., at ___________ ( )a.m. ( )p.m.
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)
in violation of
( ) State Statute
section(s): : ( ) Municipal Ord.
DID (Narrative):
Name of Officer ID Agency
[ ] Mandatory appearance in court,
Location
on …..(date)….., at ______ ( )a.m. ( )p.m.
[ ] 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 on …..(date)……
_______________________________
Notary Public, State of Florida
[Editor’s Note: Jurat should include identification information required by F.S. 117.05(13).]
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 …..(date)….., _____ to …..(date)….., _____
Hour 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 the 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 court.”
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
…..(date of notice to appear)…..
Offense(s): (1)_______________
(2)______________
TANGIBLE EVIDENCE: (If none, write “None”)
Item:
Obtained from (person and/or place):
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
Committee Notes
1992 Amendment. The amendment deletes subdivision (k) and reletters subdivisions (l) and (m). The elimination of subdivision (k) will
entitle individuals charged with criminal violations to the same discovery, without regard to the nature of the charging instrument. As amended,
persons charged by way of a notice to appear can obtain the same discovery as persons charged by way of either an information or an indictment.
In this regard the 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 APPEARANCE
(a) Prompt First Appearance. 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 1 or more
judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings.
(b) Advice to Defendant. At the defendant’s first appearance the judge shall immediately inform the defendant of
the charge and provide the defendant with a copy of the complaint. The judge shall also adequately advise the
defendant that:
(1) the defendant is not required to say anything, and that anything the defendant says may be used against him
or her;
(2) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that
counsel will be appointed; and
(3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided
reasonable means to do so.
(c) Counsel for Defendant.
(1) Appointed Counsel. If practicable, the judge should determine prior to the first appearance whether the
defendant is financially able to afford counsel and whether the defendant desires representation. When the judge
determines that the defendant is entitled to court-appointed counsel and desires counsel, the judge shall immediately
appoint counsel. This determination must be made and, if required, counsel appointed no later than the time of the
first appearance and before 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
judge.
(2) Retained Counsel. When the defendant has employed counsel or is financially able and desires to employ
counsel to represent him or her at first appearance, the judge shall allow the defendant a reasonable time to send for
counsel and shall, if necessary, postpone the first appearance hearing for that purpose. The judge 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 judge may appoint counsel to represent the defendant for the first appearance
hearing.
(3) Opportunity to Confer. 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) Waiver of Counsel. The defendant may waive the right to counsel at first appearance. The waiver,
containing an explanation of the 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) Pretrial Release. The judicial officer shall proceed to determine conditions of release pursuant to rule 3.131.
Committee Notes
1972 Amendment. Same as prior rule except (b), which is new.
RULE 3.131. PRETRIAL RELEASE
(a) Right to Pretrial Release. 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 the judicial process, the accused may be detained.
(b) Hearing at First AppearanceCConditions of Release.
(1) Unless the state has filed a motion for pretrial detention pursuant to rule 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. Except as otherwise provided by this rule, there is a presumption in favor of release on nonmonetary
conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following
conditions of release that 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, shall impose any combination of the following conditions:
(A) personal recognizance of the defendant;
(B) execution of an unsecured appearance bond in an amount specified by the judge;
(C) placement of restrictions on the travel, association, or place of abode of the defendant during the period of
release;
(D) placement of the defendant in the custody of a designated person or organization agreeing to supervise the
defendant;
(E) 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 the bail by providing an appearance bond; or
(F) 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 circumstances 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, need for substance abuse evaluation and/or treatment, 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 that 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 is on probation, parole, or other release pending completion of
sentence; and any other facts the court considers relevant.
(4) No person charged with a dangerous crime, as defined in section 907.041(4)(a), Florida Statutes, shall be
released on nonmonetary conditions under the supervision of a pretrial release service, unless the service certifies to
the court that it has investigated or otherwise verified the conditions set forth in section 907.041(3)(b), Florida
Statutes.
(5) 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
subdivision may result in the revocation or modification of bail. However, no defendant shall be compelled to
provide information regarding his or her criminal record.
(6) 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) Consequences of Failure to Appear.
(1) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in section
903.26, 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 section
903.26, Florida Statutes, and who is arrested at any time following forfeiture shall not be eligible for a recognizance
bond or any form of bond that 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) Subsequent Application for Setting or Modification of Bail.
(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 the trial court, to
the circuit court. The motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may
modify or set a condition of release, unless the judge:
(A) imposed the conditions of bail or set the amount of bond required;
(B) is the chief judge of the circuit in which the defendant is to be tried;
(C) has been assigned to preside over the criminal trial of the defendant; or
(D) is 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 the defendant.
(3) If 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) Bail Before Conviction; Condition of Undertaking.
(1) If a person is admitted to bail for appearance for a preliminary hearing or on a charge that a judge is
empowered to try, the condition of the undertaking shall be that the person will appear for the hearing or to answer
the charge and will submit to the orders and process of the judge trying the same and will not depart without leave.
(2) If a person is admitted to bail after being held to answer by a judge or after an indictment or information on
which the person is to be tried has been filed, the condition of the undertaking shall be that the person will appear to
answer the charges before the court in which he or she may be prosecuted and submit to the orders and process of
the court and will not depart without leave.
(f) Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on
bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment,
sentence, and any further order of the court.
(g) Arrest and Commitment by Court. The court in which the cause is pending may direct the arrest and
commitment of the defendant who is at large on bail when:
(1) there has been a breach of the undertaking;
(2) it appears that the defendant’s sureties or any of them are dead or cannot be found or are insufficient or have
ceased to be residents of the state; or
(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 or she would be if he or she had 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) Bail after Recommitment. If the defendant applies to be admitted to bail after recommitment, the court that
recommitted the defendant shall determine conditions of release, if any, subject to the limitations of (b) above.
(i) Qualifications of Surety after Order of Recommitment. 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) Issuance of Capias; Bail Specified. On 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
the person. If the person named in the indictment or information is a child and the 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) Summons on Misdemeanor Charge. When a complaint is filed charging the commission of a misdemeanor
only and the judge 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 judge shall direct the clerk to issue a summons instead of a capias
unless the 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.
(l) Summons When Defendant Is Corporation. On 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.
Committee Notes
1968 Adoption. (a) Same as section 903.01, Florida Statutes.
(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 proposals contain the essentials of present sections 907.01, 907.02, and 901.09(3), Florida Statutes,
a change of some of the terminology being warranted for purpose of clarity.
(m) Formerly rule 3.150(c). This proposal contains all of the essentials of section 907.03, Florida Statutes, and that part of section 901.14,
Florida Statutes, pertaining to postindictment or postinformation procedure. A charge by affidavit is provided.
Although subdivision (g) is the same as section 918.01, Florida Statutes, its constitutionality was questioned by the subcommittee,
constitutional right to bail and presumption of innocence.
1972 Amendment. Same as prior rule except (b), which is new. (k), (l), and (m) are taken from prior rule 3.150.
1977 Amendment. This proposal amends subdivision (b)(4) of the present rule [formerly rule 3.130(b)(4)] to expand the forms of pretrial
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.
1983 Amendment. Rule 3.131(d) is intended to replace former rule 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 state or by the defendant.
Court Comment
1977 Amendment. Subdivision (a) was repealed by Chapter 76-138, §2, Laws of Florida, insofar as it was inconsistent with the provision of
that statute. Subdivision (a) has been amended so as to comply with the legislative act.
RULE 3.132. PRETRIAL DETENTION
(a) Motion Filed at First Appearance. A person arrested for an offense for which detention may be ordered
under section 907.041, Florida Statutes, shall be taken before a judicial officer for a first appearance within 24 hours
of arrest. The state may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by
the state attorney or an assistant, setting forth with particularity the grounds and the essential facts on which pretrial
detention is sought and certifying that the state attorney 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 rule 3.131(b). If the
motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine the conditions of
release pursuant to the provisions of rule 3.131(b). 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 rule 3.133 and the person has been
released from custody, the person may be recommitted to custody pending a final hearing on pretrial detention.
(b) Motion Filed after First Appearance. A motion for pretrial detention may be filed at any time prior to trial.
The motion shall be made to the court with trial jurisdiction. On 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
the 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 the motion as provided in (c)
below.
(c) Final Order.
(1) Hearing Required. 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 state attorney has the burden of
showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida
Statutes. The defendant may request a continuance. The state shall be entitled to 1 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 the defendant be detained in excess of 10 days, unless the 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) Findings and Conclusions to Be Recorded. 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) Dissolution of Order. 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) Further Proceedings on Order. If 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 a copy of the 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.
RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY
PRELIMINARY HEARINGS
(a) Nonadversary Probable Cause Determination.
(1) Defendant in Custody. In all cases in which the defendant is in custody, a nonadversary probable cause
determination shall be held before a judge within 48 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 judge and an arrest warrant issued for the specific offense for which the defendant is charged. The judge after a
showing of extraordinary circumstance may continue the proceeding for not more than 24 hours beyond the 48-hour
period. The judge, after a showing that an extraordinary circumstance still exists, may continue the proceeding for
not more than 24 additional hours following the expiration of the initial 24-hour continuance. This determination
shall be made if the necessary proof is available at the time of the first appearance as required under rule 3.130, but
the holding of this determination at that time shall not affect the fact that it is a nonadversary proceeding.
(2) Defendant on Pretrial Release. A defendant who has been released from custody before a probable cause
determination is made and who is able to establish that the pretrial release conditions are a significant restraint on his
or her 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 state. A judge who finds significant
restraints on the defendant’s liberty shall make a probable cause determination within 7 days from the filing of the
motion.
(3) Standard of Proof. Upon presentation of proof, the judge 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 judge shall apply the standard for issuance of an arrest warrant, and the
finding may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath
properly recorded.
(4) Action on Determination. 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 judge on a written application filed by the defendant with notice
sent to the state or by a judge without a written application but with notice to the state. The judge 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
judge, 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) Adversary Preliminary Hearing.
(1) When Applicable. 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 or her shall have a right to an adversary preliminary hearing on any
felony charge then pending against the defendant. The subsequent filing of an information or indictment shall not
eliminate a defendant’s entitlement to this proceeding.
(2) Process. The judge shall issue such process as may be necessary to secure attendance of witnesses within
the state for the state or the defendant.
(3) Witnesses. 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 who so elects shall be sworn and testify in his or her own behalf, and in such cases the defendant shall
be warned in advance of testifying that anything he or she may say can be used against him or her at a subsequent
trial. The defendant may be cross-examined in the same manner as other witnesses, and any witnesses offered by the
defendant shall be sworn and examined.
(4) Record. 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 the defendant or the defendant’s counsel.
(5) Action on Hearing. If from the evidence it appears to the judge that there is probable cause to believe that
an offense has been committed and that the defendant has committed it, the judge shall cause the defendant to be
held to answer to the circuit court; otherwise, the judge 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 judge, and, together with the evidence received in the cause,
shall be filed with the clerk of the circuit court.
(c) Additional Nonadversary Probable Cause Determinations and Preliminary Hearings. 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 judge 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 judge. 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.
Committee Notes
1968 Adoption. (Notes are to former rule 1.122.)
(a) Substantially the same as section 902.01, Florida Statutes; the word “examination” is changed to “hearing” to conform to modern
terminology.
(b) through (j) Substantially the same as sections 902.02 through 902.10, 902.13, and 902.14, Florida Statutes, except for exchange of
“hearing” for “examination.”
(k) Parts of section 902.11, Florida Statutes, and all of section 902.12, Florida Statutes, were omitted because of conflict 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 the magistrate should do at the
conclusion of the preliminary hearing.
(m) Substantially the same as section 902.18, Florida Statutes, except “without delay” changed to “within 7 days.” Some specific time limit
was felt necessary because of frequent delay by magistrates while defendants remain in jail.
1972 Amendment. 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 committee determined that, since a determination of probable
cause at this immediate hearing presents difficult logistical problems for the state and defense counsel, the question of probable cause should be
decided at a later preliminary hearing. For this reason, subdivisions (c), (d), and (e) of the former rule have been deleted in favor of the hearing
provision now contained in rule 3.130.
(a) A revised version of former rule 3.122(a).
(b) New. Establishes the time period in which the preliminary hearing must take place.
(c)(1) Substantially the same as former rule 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 subdivision (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(l).
(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.
1977 Amendment. 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 subdivision (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 of 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.
Court Comment
1975 Amendment. This is a complete rewrite of the preliminary hearing rule.
RULE 3.134. TIME FOR FILING FORMAL CHARGES
The state shall file formal charges on defendants in custody by information, or indictment, or in the case of alleged
misdemeanors by whatever documents constitute a formal charge, within 30 days from the date on which defendants
are arrested or from the date of the service of capiases upon them. If the defendants remain uncharged, the court on
the 30th day and with notice to the state shall:
(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state
files formal charges by that date; or
(2) If good cause is shown by the state, order that the defendants automatically be released on their own
recognizance on the 40th day unless the state files formal charges by that date.
In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a
crime.
RULE 3.140. INDICTMENTS; INFORMATIONS
(a) Methods of Prosecution.
(1) Capital Crimes. An offense that may be punished by death shall be prosecuted by indictment.
(2) Other Crimes. 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 notice
to appear issued and served pursuant to rule 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 the judge, or at the judge’s
direction, the clerk of the circuit court, shall certify the indictment and file it in the records of the county court.
(b) Nature of Indictment or Information. 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) Caption, Commencement, Date, and Personal Statistics.
(1) Caption. 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 court)
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) Commencement. 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) Date. 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) Personal Statistics. 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 or information.
(d) The Charge.
(1) Allegation of Facts; Citation of Law Violated. 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 that 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 the defendant’s
prejudice.
(2) Name of Accused. The name of the accused person shall be stated, if known, and if not known, the person
may be described by any name or description by which the person 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 the accused 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) Time and Place. 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 2 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) Allegation of Intent to Defraud. If 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) Incorporation by Reference. Allegations made in 1 count shall not be incorporated by reference in another
count.
(f) Endorsement and Signature; Indictment. An indictment shall be signed by the foreperson or the acting
foreperson 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 or she 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) Signature, Oath, and Certification; Information. 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 or her good faith in
instituting the prosecution and certifying that he or she 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 or her 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) Conclusion. An indictment or information on which the defendant is to be tried need contain no formal
conclusion.
(i) Surplusage. An unnecessary allegation may be disregarded as surplusage and, on motion of the defendant,
may be stricken from the pleading by the court.
(j) Amendment of Information. An information on which the defendant is to be tried that 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) Form of Certain Allegations. Allegations concerning the following items may be alleged as indicated below:
(1) Description of Written Instruments. 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) Words; Pictures. 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) Judgments; Determinations; Proceedings. A judgment, determination, or proceeding of any court or
official, civil or military, may be alleged generally in such a manner as to identify the judgment, determination, or
proceeding, without alleging facts conferring jurisdiction on the court or official.
(4) Exceptions; Excuses; Provisos. Statutory exceptions, excuses, or provisos relative to offenses created or
defined by statute need not be negatived by allegation.
(5) Alternative or Disjunctive Allegations. For an offense that may be committed by doing 1 or more of
several acts, or by 1 or more of several means, or with 1 or more of several intents or results, it is permissible to
allege in the disjunctive or alternative such acts, means, intents, or results.
(6) Offenses Divided into Degrees. For an offense divided into degrees it is sufficient to charge the
commission of the offense without specifying the degree.
(7) Felonies. It shall not be necessary to allege that the offense charged is a felony or was done feloniously.
(l) Custody of Indictment or Information. 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 1 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) Defendant’s Right to Copy of Indictment or Information. 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 24 hours before being required to plead to the indictment or information if a copy has
not been so furnished. A failure to furnish a copy shall not affect the validity of any subsequent proceeding against
the defendant if he or she pleads to the indictment or information.
(n) Statement of Particulars. 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 the defendant to prepare a defense. The 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.
(o) Defects and Variances. 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 or her in the preparation of a
defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same
offense.
Committee Notes
1968 Adoption. Introductory Statement: The contention may be made that the authority of the Supreme Court of Florida to govern practice and
procedure in all courts by court rule does not include the power to vary in any way from present statutory law governing the work product of the grand
jury, viz., the indictment. Such a contention must, of necessity, be based in part, at least, upon the assumption that the grand jury is not an integral part
of the judicial system of Florida but is a distinct entity which serves that system. The Supreme Court of Florida, in State v. Clemons, 150 So.2d 231
(Fla. 1963), seems to have taken a position contrary to such an assumption.
Regardless of whether such a contention is valid, it seems beyond controversy that the essentials of the indictment, as in the case of an
information, are so intimately associated with practice and procedure in the courts that the individual or group having the responsibility of
determining its makeup and use is thus empowered to govern a substantial segment of such practice and procedure. The conclusion seems to be
inescapable, therefore, that, since the constitution grants to the supreme court authority over this phase of the judicial scheme, the following
material is appropriate for consideration as a part of the proposed rules:
(a)(1) Capital Crimes. This recommendation is consistent with present 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” is deemed preferable to the
terminology “capital crime” of the constitution and “capital offenses” of the statute because of its definitive nature. The recommended
terminology is utilized in Federal Rule of Criminal Procedure 7(a) and in the American Law Institute’s Code of Criminal Procedure, section 115.
The terminology used in the 1963 Code of Criminal Procedure of Illinois is “when death is a possible punishment.” See §110-4.
Section 10, DR, Florida Constitution, provides: “No person shall be tried for a capital crime unless on presentment or indictment by a grand
jury.” No provision is made in the recommendation for prosecution by presentment. This omission is consistent with the apparent legislative
construction placed on this section. Section 904.01, Florida Statutes, provides “All capital offenses shall be tried by indictment by a grand jury.”
Since presentments traditionally have not been used as trial accusatorial writs in Florida, there seems little reason, at this date, to question that the
constitution authorizes the implementing authority, be it the legislature or the supreme court, to use one of the specified methods of prosecution to
the exclusion of the other.
(a)(2) Other Crimes. In criminal courts of record and the Court of Record of Escambia County, the constitution of Florida requires that
prosecutions be by information. (§§9(5) & 10, Art. V). In county judges’ courts having elective prosecuting attorneys, present statutory law
permits prosecutions by indictment (§904.02) and affidavit (Ch. 937). The additional method of prosecution by information is provided as a step
toward attaining uniformity with other courts in the prosecution of noncapital offenses, at least to the extent that a prosecutor desires to use an
information. This addition involved consideration of whether a nonelected prosecutor serving in a county judge’s court, which often is the case,
has the authority to use an information as an accusatorial writ. Since this question has not been definitely resolved under present law, caution
dictated the specification that the prosecuting attorney be elected as a prerequisite to the use of an information.
In all courts not hereinabove mentioned that have elective prosecuting attorneys, trial by indictment or information is consistent with present
Florida constitutional law and most of the statutory law. (See §10, DR, Fla. Const., §§904.01 & 904.02, Fla. Stat.; cf. §932.56, where an affidavit
may be used in cases appealed from a justice of the peace court and which is tried de novo in a circuit court.) In specially created courts having
elective prosecutors and which are not otherwise provided for in foregoing provisions of this rule, it was felt that prosecution by indictment or
information should be allowed, even though present statutory authority may limit prosecutions in such courts to the use of an information, e.g.,
the Court of Record of Alachua County.
In courts not having elective prosecutors, prosecution by information is not recommended because of the aforementioned doubt as to the
authority of a nonelected prosecutor to use an information as an accusatorial writ. With reference to the present court structure of Florida this part
of the proposal applies only to county judges’ courts and justice of the peace courts. The only variation from present procedure contemplated by
this part of the proposal is the use of an indictment as a basis for prosecution in a justice of the peace court.
Under this proposal a grand jury may indict for any criminal offense. This recommendation is based on the premise that a grand jury’s power to
indict should not be limited by virtue of levels in a state court structure. A grand jury should be considered as a guardian of the public peace
against all criminal activity and should be in a position to act directly with reference thereto. While practicalities dictate that most non-capital
felonies and misdemeanors will be tried by information or affidavit, if appropriate, even if an indictment is permissible as an alternative
procedure, it is well to retain the grand jury’s check on prosecutors in this area of otherwise practically unrestricted discretion.
The procedure proposed for the circuit judge to follow if a grand jury returns an indictment for an offense not triable in the circuit court
applies, with appropriate variations, much of the procedure presently used when a grand jury returns an indictment triable in a criminal court of
record. See §32.18, Fla. Stat.
(b) Nature of Indictment or Information. This provision appears in rule 7(c) of the Rules of Criminal Procedure for the United States
District Court (hereafter referred to as the federal rules for purposes of brevity). It may be deemed appropriate for incorporation into the
recommendations since it preserves to the defendant expressly the right to a formal written accusation and at the same time permits the
simplification of the form of the accusation and the elimination of unnecessary phraseology.
(c) Caption, Commencement, and Date.
(1) Caption. Section 906.02, Florida Statutes, contains the essentials of this proposal. It is well settled at common law that the caption is
no part of the indictment and that it may be amended. The caption may be considered as serving the purpose of convenience by making more
readily identifiable a particular accusatorial writ. The proposal makes it possible for this convenience to be served if either party wishes it, yet
does not provide that the caption be a matter of substance. The essentials of this recommendation also appear in section 149 of the American Law
Institute’s Code of Criminal Procedure.
(2) Commencement. This proposal apparently is directly contrary to section 906.02(1), Florida Statutes, which treats the caption and the
commencement in the same manner, i.e., that neither is necessary to the validity of the indictment or information but may be present as mere matters of
convenience. This legislative assumption may not be a correct one and caution dictates that a meaningful commencement be included. Section 20,
article V, of the Constitution of Florida provides that the style of all process shall be: “‘The State of Florida’ and all prosecutions shall be conducted in
the name and by the authority of the State.” As contemplated in the proposal, the commencement expressly states the sovereign authority by which the
accusatorial writ is issued and the agent of that authority. Section 906.02(2), Florida Statutes, seems to contemplate that there will be included in the
indictment an express provision concerning the agency of the state responsible for its presentation, viz., the grand jury, by stating, “It is unnecessary to
allege that the grand jurors were empaneled, sworn or charged, or that they present the indictment upon their oaths or affirmations.” The American Law
Institute’s commentary on the commencement (A.L.I. Code of Criminal Procedure, p. 529 et seq.) indicates that there is much confusion between what
information should be in the commencement as distinguished from the caption.
(3) Date. Since in many cases the beginning of the prosecution is co-existent with the issuance of the indictment or information, the date
the writ bears may be of great significance, particularly with reference to the tolling of a statute of limitations. If the date of a grand jury’s vote of
a true bill or a prosecutor’s making oath to an information differs from the date of filing of the indictment or information with the appropriate
clerk, it seems the date of filing is the preferable date for a writ to bear since until the filing transpires there is no absolute certainty that the
prosecution actually will leave the province of the grand jury or prosecutor.
(d) The Charge.
(1) Allegation of Facts; Citation of Law Violated. This proposal is consistent with various sections of chapter 906, Florida Statutes, in that the
charge is adequately alleged when based on the essentials of the offense; surplusage should be guarded against. The citation of the law allegedly
violated contributes to defining the charge and conserves time in ascertaining the exact nature of the charge. The 1963 Illinois Criminal Code, section
111-3(a)(2), and Federal Rule of Criminal Procedure 7(c) contain similar provisions.
(2) Name of Accused. The provision concerning the method of stating the name of the accused is consistent with the very elaborate section
906.08, Florida Statutes, which seems unnecessarily long. It is deemed desirable that when a fictitious name is used the necessity therefor should be
indicated by allegation.
(3) Time and Place. This provision is consistent with present Florida 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 after section 111-3(4) of the 1963 Illinois
Code of Criminal Procedure.
(4) Joinder of Offenses. The essence of this proposal is presently found in section 906.25, Florida Statutes, federal rule 8(a), and section
111-4(a) of the 1963 Illinois Code of Criminal Procedure.
(5) Joinder of Defendants. This proposal is taken from federal rule 8(b). Its substance also appears in section 111-4(b) of the Illinois 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 this proposal presently appears in section 906.18, Florida Statutes, except for the
provision concerning affidavit. Its continuation seems advisable as an aid to drawing allegations in charging instruments, although such
information if known to the prosecutor may be required to be given in a bill of particulars upon motion of the defendant. (See subdivision (n) of
this rule.) At times such information may be unknown to the prosecutor. A part of the statute is purposely not included in the proposal. The
excluded part states “and on the trial it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United
States or any state, county, city, town or parish, or any body corporate, or any public officer in his official capacity, or any copartnership or
members thereof, or any particular person.” It seems that this part of the statute is stated in terms of the law of evidence rather than practice and
procedure and should not be included in the rules, although apparently being a logical conclusion from the part included in the proposal.
(e) Incorporation by Reference. Although provision for incorporation by reference appears in federal rule 7(c), the prohibition of such
incorporation is recommended with the thought that even though repetition may be minimized by incorporation, confusion, vagueness, and
misunderstanding may be fostered by such procedure.
(f) Endorsement and Signature; Indictment. The requirement that the indictment be endorsed “A true bill” and be signed by the foreman or
acting foreman of the grand jury presently appears in section 905.23, Florida Statutes. There apparently is no valid reason for changing this
requirement since it serves the useful purpose of lending authenticity to the indictment as a legal product of the grand jury. The requirement of the
foreman’s signature also appears in federal rule 6(c), 1963, Illinois CCP section 111-3(b), and A.L.I. Model Code of Criminal Procedure section
125.
The provision pertaining to the statement and signature of the prosecuting attorney varies from present Florida law and is offered in alternative
form. Florida statutes presently provide that an indictment shall be signed by a state attorney (§§27.21 & 27.22). Federal rule 7(c) also provides
for the signature of the attorney for the government.
No requirement presently is made in Florida necessitating an express explanatory statement preceding such signature. Presumably the
justification for the signature appears in the Florida statutes that require the aforementioned officers to wait upon the grand jury as advisors, as
examiners of witnesses, and to 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 the signature, however. Since the prosecuting attorney cannot be present while the grand
jury is deliberating or voting (see section 905.17, Florida Statutes) and has no voice in the decision of whether an indictment is found (see section
905.26, Florida Statutes), a logical question arises concerning the necessity for the prosecuting attorney’s signature on the indictment. The
provision for the statement is made for the purpose of clarifying the reason for the signature.
(g) Signature, Oath, and Certification; Information. Section 10, DR, Florida Constitution, requires that informations be under oath of the
prosecuting attorney of the court in which the information is filed. Article V, section 9(5), Florida Constitution, contains the same requirement
concerning informations filed by the prosecuting attorney in a criminal court of record. This proposal also does not deviate from present Florida
statutory law as found in section 906.04, Florida Statutes. This statute has received judicial approval. (See Champlin v. State, 122 So.2d 412 (Fla. 2d
DCA 1960).) It should be noted here that the prosecutor’s statement under oath is defined as to the purpose served by the signature.
(h) Conclusion. A similar provision currently appears in section 906.03, Florida Statutes, and should be included in the rules because of its
tendency to minimize unnecessary statements in accusatorial writs. Provision is added for the affidavit as an accusatorial writ.
(i) Surplusage. The first part of the proposal, providing for the disregarding of unnecessary allegations as surplusage, is similar to section
906.24, Florida Statutes. The part concerned with striking such material is patterned after federal rule 7(d). The parts are properly complementary.
(j) Amendment of Information. This proposal contains no provision for an amendment of an indictment since, presumably, a grand jury
may not amend an indictment which it has returned and which is pending, although it may return another indictment and the first indictment may
be disposed of by a nolle prosequi. (See 17 Fla. Jur. Indictments and Informations, 9 (1958).) A federal indictment cannot be amended without
reassembling the grand jury (see Ex parte Bain, 121 U.S. 1 (1887)); consequently the federal rules contain no provision for the amendment of an
indictment. (It may be that the Supreme Court of Florida will feel inclined to include in the rules an express statement concerning amendments of
an indictment. None is included here, however.)
The proposal is patterned after section 111-5 of the 1963 Illinois Code of Criminal Procedure, with one exception. The exception arises due to
the fact that the Illinois Code provision applies to indictments as well as informations, the position in Illinois apparently being assumed that an
indictment may be amended, at least with reference to specified items listed in the statute, as well as other formalities.
(k) Form of Certain Allegations. Several statutes in chapter 906, Florida Statutes, are concerned with the manner of making allegations in
indictments and informations. Some of these sections are of such general application that it seems advisable to include their substance in the
rules; others are so restricted that it may be deemed appropriate to recommend other disposition of them.
The proposals made in (1) through (7) here are based on the substance 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 verbatim from section 906.27, Florida Statutes. The necessity for specific provision for
the custody and inspection of accusatorial writs seems to be proper to include here.
(m) Defendant’s Right to Copy of Indictment or Information. The procedure contained in this proposal is presently required under section
906.28, Florida Statutes, and seems to be unobjectionable.
(n) Statement of Particulars. The phrase, “bill of particulars,” has been modernized by changing “bill” to “statement.” Historically, a “bill”
is a written statement. The first sentence of this proposal is taken from section 906.27, Florida Statutes, the only change being the narrowing of
the scope of the judicial discretion now granted by the statute. The latter part of the proposal is recommended in order to clarify the requirements
of the rule. Provision for the accusatorial affidavit has been added.
(o) Defects and Variances. This proposal presently appears in Florida law in the form of section 906.25, Florida Statutes. The statute has
been the object of much judicial construction and it seems inadvisable to divide it into parts merely for convenience in placing these parts under
more appropriate titles, such as “Pre-Trial Motions,” “Motion for New Trial,” etc.
The intimate relation the statute has with indictments and informations justifies its inclusion here. The useful purposes served by the court
constructions dictate the use of the statutory language without change.
1972 Amendment. Substantially the same as prior rule. References to trial by affidavit have been deleted throughout this rule and all Florida Rules
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 circuit courts and county courts. Reference to trial of vehicular traffic offenses transferred to rule 3.010 and
made applicable to all rules of criminal procedure.
Former rule (d)(4) and (d)(5) transferred to new rule 3.150. Former rule (d)(6) renumbered as (d)(4).
1973 Amendment. 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.
RULE 3.150. JOINDER OF OFFENSES
AND DEFENDANTS
(a) Joinder of Offenses. Two or more offenses that 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 2 or more connected acts or transactions.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information on
which they are to be tried when:
(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 1 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 1 or more counts together or separately, and all of the defendants need not be
charged in each count.
(c) Joint Representation. When 2 or more defendants have been jointly charged under rule 3.150(b) or have
been joined for trial and are represented by the same attorney or by attorneys who are associated in the practice of
law, the court shall, as soon as practicable, inquire into such joint representation and shall personally advise each
defendant of the right to effective assistance of counsel, including separate representation. The court shall take such
measures as are necessary to protect each defendant’s right to counsel.
Committee Notes
1968 Adoption. (Notes are to rule 1.140(d)(4) and (5).)
(4) Joinder of Offenses. The essence of this proposal is presently found in section 906.25, Florida Statutes, federal rule 8(a), and section
111-4(a) of the 1963 Illinois Code of Criminal Procedure.
(5) Joinder of Defendants. This proposal is taken from federal rule 8(b). Its substance also appears in section 111-4(b) of the Illinois Code
of Criminal Procedure. While section 906.25, FloridaStatutes, does not expressly contain this provision, there is little doubt that its broad
language includes it.
1972 Amendment. Provisions of former rule 3.150 are transferred to and incorporated in rule 3.130, Pretrial Release.
(a) Substantially the same as former rule 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 of ABA Standards Relating to Joinder and Severance but omits sub-paragraph (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 standard 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 committee 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 suggested rule omits the provision of former rule 3.140(d)(4) permitting joinder of 2 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 1
offense. If all defendants participated in a series of connected acts or transactions constituting 2 or more offenses, the offenses can be joined
under rule 3.150(a).
The last sentence of the suggested rule is the last sentence of former rule 3.140(d)(5).
2004 Amendment. This rule is intended to provide a uniform procedure for judges to follow when codefendants are represented by the same
attorney, by the same law firm, or by attorneys who are associated in the practice of law. This provision is substantially derived from Rule 44,
Fed. R. Crim. P. See also Larzelere v. State, 676 So. 2d 394 (Fla. 1996).
Court Commentary
2004 Amendment. Like Federal Rule of Criminal Procedure 44(c), new subdivision (c) does not specify the particular measures that the court
must take to protect a defendant’s right to counsel. Because the measures that will best protect a defendant’s right to counsel can vary from case
to case, this determination is left within the court’s discretion. One possible course of action is to advise the defendant of the possible conflict of
interest that could arise from dual representation and to obtain a voluntary, knowing, and intelligent waiver of the right to obtain separate
representation. See Larzelere v. State, 676 So. 2d 394 (Fla. 1996). Another option is to require separate representation. See Fed. R. Crim. P. 44(c)
advisory committee notes 1979 amendment.
RULE 3.151. CONSOLIDATION OF RELATED OFFENSES
(a) Related Offenses. For purposes of these rules, 2 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 2 or more connected acts or transactions.
(b) Consolidation of Indictments or Informations. 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) Dismissal of Related Offenses after Trial. When a defendant has been tried on a charge of 1 of 2 or more
related offenses, the charge of every other related offense shall be dismissed on the defendant’s motion unless a
motion by the defendant for consolidation of the charges has been previously denied, or unless the defendant has
waived the right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient
evidence to warrant charging the other offense or offenses.
(d) Plea. A defendant may plead guilty or nolo contendere to a charge of 1 offense on the condition that other
charges of related offenses be dismissed or that no charges of other related offenses be instituted. Should the court
find that the condition cannot be fulfilled, the plea shall be considered withdrawn.
Committee Notes
1968 Adoption. This rule is almost the same as federal rule 13, with provisions added for trial by affidavit.
1972 Amendment. (a) To same general effect as ABA Standard with changes to conform to rules 3.150(a) and 3.190(k).
(b) Limits motion for consolidation to defendant and provides that defendant waives his or her 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” 1 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 1 of several charges of “related offenses” would be
quite rare. In the rare case in which 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 committee 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 committee to state a rule of substantive law and is
omitted as unnecessary.
1977 Amendment. The changes from the prior rule are intended to provide equal treatment for both the state and the defendant.
RULE 3.152. SEVERANCE OF OFFENSES AND DEFENDANTS
(a) Severance of Offenses.
(1) In case 2 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 2 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 state or of a defendant:
(A) before trial on a showing that the severance is appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense; or
(B) during trial, only with defendant’s consent, on a showing that the severance is necessary to achieve a fair
determination of the defendant’s guilt or innocence of each offense.
(b) Severance of Defendants.
(1) On motion of the state or a defendant, the court shall order a severance of defendants and separate trials:
(A) before trial, on a showing that the 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 1 or more defendants; or
(B) during trial, only with defendant’s consent and on a showing that the order is necessary to achieve a fair
determination of the guilt or innocence of 1 or more defendants.
(2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a
codefendant makes reference to him or her but is not admissible against him or her, the court shall determine
whether the state will offer evidence of the statement at the trial. If the state intends to offer the statement in
evidence, the court shall order the state to submit its evidence of the statement for consideration by the court and
counsel for defendants and if the court determines that the statement is not admissible against the moving defendant,
it shall require the state to elect 1 of the following courses:
(A) a joint trial at which evidence of the statement will not be admitted;
(B) 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 the evidence with deletions will not
prejudice the moving defendant; or
(C) severance of the moving defendant.
(3) In cases in which, at the close of the state’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.
Committee Notes
1968 Adoption. This subdivision rewords and adds to federal rule 14. It covers subject matter of section 918.02, Florida Statutes.
1972 Amendment. (a)(1) Severance on timely motion by defendant is mandatory if 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 rule, distinguishes motion during trial.
(b)(1) Based on ABA Standard 2.3(b). Expands rule 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, subparagraphs (a) and (c). Requires court to determine whether the statement will be offered as
distinguished from asking the state 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 rule requires severance unless the court affirmatively finds that
severance is unnecessary. Florida has no similar rule.
RULE 3.153. TIMELINESS OF DEFENDANT’S MOTION; WAIVER
(a) Timeliness; Waiver. 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) Renewal of Motion. If a defendant’s pretrial motion for severance is overruled, the defendant may renew the
motion on the same grounds at or before the close of all the evidence at the trial.
Committee Notes
1972 Adoption. (a) Relates solely to defendant’s motion for severance. Florida has no similar rule.
(b) Florida has no similar rule.
IV. ARRAIGNMENT AND PLEAS
RULE 3.160. ARRAIGNMENT
(a) Nature of Arraignment. The arraignment shall be conducted in open court or by audiovisual device in the
discretion of the court and shall consist of the judge or clerk or prosecuting attorney reading the indictment or
information on which the defendant will be tried to the defendant or stating orally to the defendant the substance of
the charge or charges and calling on the defendant to plead thereto. The 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) Effect of Failure to Arraign or Irregularity of Arraignment. 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) Plea of Guilty after Indictment or Information Filed. If a person who has been indicted or informed against for
an offense, but who has not been arraigned, desires to plead guilty thereto, the person may so inform the court having
jurisdiction of the offense, and the court shall, as soon as convenient, arraign the defendant and permit the defendant to
plead guilty to the indictment or information.
(d) Time to Prepare for Trial. After a plea of not guilty the defendant is entitled to a reasonable time in which to
prepare for trial.
(e) Defendant Not Represented by Counsel. Prior to arraignment of any person charged with the commission of
a crime, if he or she is not represented by counsel, the court shall advise the person of the right to counsel and, if he
or she is financially unable to obtain counsel, of the right to be assigned court-appointed counsel to represent him or
her at the arraignment and at all subsequent proceedings. The person shall execute an affidavit that he or she is
unable financially or otherwise to obtain counsel, and if the court shall determine the reason to be true, the court
shall appoint counsel to represent the person.
If the defendant, however, understandingly waives representation by counsel, he or she shall execute a written
waiver of such representation, which shall be filed in the case. If counsel is 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 or
she is to be arraigned or tried, or otherwise to proceed further.
Committee Notes
1968 Adoption. (a) A combination of section 908.01, Florida Statutes, and Federal Rule of Criminal Procedure 10.
(b) Same as section 908.02, Florida Statutes.
(c) Same as section 909.15, Florida Statutes, except provision is 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 court shall advise him of his right to counsel and assign counsel to represent him at every
stage of the proceeding unless he elects to 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 unable to obtain counsel shall be entitled to have counsel assigned to represent him at
every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such
appointment.
“(b) Assignment Procedure. The procedures for implementing the right set out in subdivision (a) shall be those provided by law or by local
rules of district courts of appeal.”
In lieu of such latter, blanket provision, it is suggested that the rule provide, as stated, for inquiry of the defendant and determination by the court
as to the defendant’s desire for and inability to obtain counsel, after being advised of entitlement thereto. Many defendants, of course, will waive
counsel.
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, 10 L.Ed.2d 193 (1963),
holding that entitlement to counsel does not depend upon whether the offense charged is a felony or misdemeanor, it is suggested that the word
“crime” be used instead of “felony” only in the first sentence of the proposed rule.
In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), involving breaking and entering with intent to commit rape, the
Supreme Court held the defendant was entitled to counsel at the arraignment, if the arraignment be deemed a part of the trial, as apparently it is
under Alabama law. In Ex parte Jeffcoat, 109 Fla. 207, 146 So. 827 (1933), the Supreme Court of Florida held the arraignment to be a mere
formal preliminary step to an answer or plea. However, in Sardinia v. State, 168 So.2d 674 (Fla. 1964), the court recognized the accused’s right to
counsel upon arraignment. Section 909.21, Florida Statutes, provides for appointment of counsel in capital cases.
1972 Amendment. Substantially the same as prior rule. The committee considered changes recommended by The Florida Bar and incorporated
the proposed change relating to written plea of not guilty and waiver of arraignment.
1992 Amendment. The amendment allows the judge to participate in the arraignment process by including the judge as one of the designated
individuals who may advise the defendant of the pending charges. Apparently, the 1988 amendment to rule 3.160(a) inadvertently eliminated the judge
from the arraignment procedure. In re Rule 3.160(a), Florida Rules of Criminal Procedure, 528 So.2d 1179, 1180 (Fla. 1988). The prior amendment
did include the judge. The Florida Bar Re: Amendment to Rules — Criminal Procedure, 462 So.2d 386 (Fla. 1984). While the language of rule
3.160(a) as presently set out in the Florida Bar pamphlet, Florida Rules of Criminal Procedure, is identical to the language of this proposed amendment
(that is, it includes the judge in the arraignment process), the West publications, Florida Criminal 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. PLEAS
(a) Types of Plea; Court’s Discretion. A defendant may plead not guilty, guilty, or, with the consent of the
court, 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 the charge at the first appearance under rule 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) Pleading to Other Charges. Having entered a plea in accordance 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 or her 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 the 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) Standing Mute or Pleading Evasively. If a defendant stands mute, or pleads evasively, a plea of not guilty
shall be entered.
(d) Failure of Corporation to Appear. If the defendant is a corporation and fails to appear, a plea of not guilty
shall be entered of record.
(e) Plea of Not Guilty; Operation in Denial. 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) Withdrawal of Plea of Guilty or No Contest. The court may in its discretion, and shall on good cause, at any
time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been
entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney,
allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be
substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest
and later withdrawn the plea may not be used against the defendant in a trial of that cause.
(g) Vacation of Plea and Sentence Due to Defendant’s Noncompliance.
(1) Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be
expressly made a part of the plea entered into in open court.
(2) Unless otherwise stated at the time the plea is entered:
(A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with
the specific terms of a plea agreement.
(B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary
hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.
(C) No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance
with the express plea agreement.
(D) When a plea and sentence is vacated pursuant to this rule, the cause shall be set for trial within 90 days of
the order vacating the plea and sentence.
(h) Plea of Guilty to Lesser Included Offense or Lesser Degree. The defendant, with the consent of the court
and of the prosecuting attorney, may plead guilty to any lesser offense than that charged that is included in the
offense charged in the indictment or information or to any lesser degree of the offense charged.
(i) Plea of Guilty to an Offense Divided into Degrees; Determination of the Degree. 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.
(j) Time and Circumstances of Plea. No defendant, whether represented by counsel or otherwise, shall be called
on to plead unless and until he or she has had a reasonable time within which to deliberate thereon.
(k) Responsibility of Court on Pleas.
No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court,
with means of recording the proceedings stenographically or mechanically, 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.
(l) Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without
expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty
days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure
9.140(b)(2)(A)(ii)(a)–(e) except as provided by law.
(m) Motion to Withdraw the Plea after Drug Court Transfer. A defendant who pleads guilty or nolo
contendere to a charge for the purpose of transferring the case, pursuant to section 910.035, Florida Statutes, may
file a motion to withdraw the plea upon successful completion of the drug court treatment program.
Committee Notes
1968 Adoption. (a) Patterned after the major portion of Federal 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 that provision 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 provision is made for a charge by affidavit.
1972 Amendment. This general topic is found in ABA Standard relating to pleas of guilty. The Standards are divided into 3 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 subdivision (j); 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
the defendant, 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 of Criminal Procedure 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 accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Garcia v. State, 228
So.2d 300 (Fla. 1969). This should also include advising a defendant so pleading of the possibility of an action or charge against him or her as a
multiple felon if the circumstances so warrant.
(j) From first sentence of present rule 3.170(a) with addition of requirement of determination of factual basis for a plea of guilty as provided
by last sentence of federal rule 11. 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.
1973 Amendment. 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.
RULE 3.171. PLEA DISCUSSIONS AND AGREEMENTS
(a) In General. Ultimate responsibility for sentence determination rests with the trial judge. However, the
prosecuting attorney and the defense attorney, or the defendant when representing himself or herself, are
encouraged to discuss and to agree on pleas that may be entered by a defendant. The discussion and agreement
must be conducted with the defendant’s counsel. If the defendant represents himself or herself, all discussions
between the defendant and the prosecuting attorney shall be of record.
(b) Responsibilities of the Prosecuting Attorney.
(1) A prosecuting attorney may:
(A) engage 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:
(i) abandon other charges; or
(ii) make 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
(iii) agree to a specific sentence; and
(B) consult 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:
(A) apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant’s
background prior to acceptance of a plea by the trial judge; and
(B) maintain the record of direct discussions with a defendant who represents himself or herself and make the
record available to the trial judge upon the entry of a plea arising from these discussions.
(c) Responsibilities of Defense Counsel.
(1) Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without the 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:
(A) all plea offers; and
(B) all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each
plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.
(d) Responsibilities of the Trial Judge. After an agreement on a plea has been reached, the trial judge may have
made known to him or her the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, the
judge shall advise the parties whether other factors (unknown at the time) may make his or her concurrence
impossible.
Committee Notes
1972 Amendment. 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 the defendant. 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 pleas of guilty.
(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.
1977 Amendment. 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. When 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 a 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 Federal Rule of Criminal Procedure 11(e)(1).
(1)(ii) The rule sets out discretionary minimum professional prosecutorial procedure where either victim or law enforcement officers are
involved to better guide the trial judge.
(2)(i) Mandatory responsibility of prosecutor contemplates disposition with no presentence investigation.
(2)(ii) Mandatory record protects both the prosecutor and the pro se defendant.
(c)(1) Renumbering subdivision (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 rule 3.171(b), paragraph 2.
(d) Now embraces and renumbers former rule 3.171(c). The content of former rule 3.171(d) now appears as part of new rule 3.172.
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA
(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere, the trial judge shall
determine that the plea is voluntarily entered and that a factual basis for the plea exists. Counsel for the prosecution
and the defense shall assist the trial judge in this function.
(b) Open Court. All pleas shall be taken in open court, except that when good cause is shown a plea may be
taken in camera.
(c) Determination of Voluntariness. Except when a defendant is not present for a plea, pursuant to the
provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath
and shall address the defendant personally and shall determine that he or she understands:
(1) the nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory
minimum penalty provided by law;
(2) if not represented by an attorney, that the defendant has the right to be represented by an attorney at every
stage of the proceeding and, if necessary, an attorney will be appointed to represent him or her;
(3) the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a
jury, and at that trial a defendant has the right to the assistance of counsel, the right to compel attendance of
witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not
to testify or be compelled to incriminate himself or herself;
(4) that upon a plea of guilty, or nolo contendere without express reservation of the right to appeal, he or she
gives up the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does
not impair the right to review by appropriate collateral attack;
(5) that if the defendant 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 or she waives the right to a trial;
(6) that if the defendant pleads guilty or nolo contendere, the trial judge may ask the defendant questions about
the offense to which he or she has pleaded, and if the defendant answers these questions under oath, on the record,
and in the presence of counsel, the answers may later be used against him or her in a prosecution for perjury;
(7) the complete terms of any plea agreement, including specifically all obligations the defendant will incur as a
result;
(8) that if he or she pleads guilty or nolo contendere, 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 and
Naturalization 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; and
(9) that if the defendant pleads guilty or nolo contendere, and the offense to which the defendant is pleading is a
sexually violent offense or a sexually motivated offense, or if the defendant has been previously convicted of such
an offense, the plea may subject the defendant to involuntary civil commitment as a sexually violent predator upon
completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or
prior offenses were sexually motivated, as this admonition shall be given to all defendants in all cases.
(d) DNA Evidence Inquiry. Before accepting a defendant’s plea of guilty or nolo contender to a felony, the judge
must inquire whether counsel for the defense has reviewed the discovery disclosed by the state, whether such
discovery included a listing or description of physical items of evidence, and whether counsel has reviewed the
nature of the evidence with the defendant. The judge must then inquire of the defendant and counsel for the
defendant and the state whether physical evidence containing DNA is known to exist that could exonerate the
defendant. If no such physical evidence is known to exist, the court may accept the defendant’s plea and impose
sentence. If such physical evidence is known to exist, upon motion of counsel the court may postpone the
proceeding and order DNA testing.
(e) Acknowledgment by Defendant. Before the trial judge accepts a guilty or nolo contendere plea, the judge
must determine that the defendant either (1) acknowledges his or her guilt or (2) acknowledges that he or she feels
the plea to be in his or her best interest, while maintaining his or her innocence.
(f) Proceedings of Record. The proceedings at which a defendant pleads guilty or nolo contendere shall be of
record.
(g) Withdrawal of Plea Offer or Negotiation. 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 rule. Until that
time, it may be withdrawn by either party without any necessary justification.
(h) Withdrawal of Plea When Judge Does Not Concur. If the trial judge does not concur in a tendered plea of
guilty or nolo contendere arising from negotiations, the plea may be withdrawn.
(i) Evidence. Except as otherwise provided in this rule, 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.
(j) Prejudice. Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of
prejudice.
Committee Notes
1977 Adoption. New in Florida. In view of the supreme court’s emphasis on the importance of this procedure as set forth in Williams v. State,
316 So.2d 267 (Fla. 1975), the committee felt it appropriate to expand the language of former rule 3.170(j) (deleted) and establish a separate rule.
Incorporates Federal Rule of Criminal Procedure 11(c) and allows for pleas of convenience as provided in North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
(a), (b) Mandatory record of voluntariness and factual predicate is proper responsibility of counsel as well as the court.
(c)(iv) This waiver of right to appeal is a change from the proposed amendments to the rules of criminal procedure now pending. A
sentence if lawful is not subject to appellate review; a judgment, however, is. The committee 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 ex rel.Amuso v. LaValle, 291 F.Supp. 383 (E.D.N.Y. 1968), aff’d 427 F.2d 328 (2d Cir. 1970); State v. Gibson, 68 N.J. 499, 348
A.2d 769 (1975); People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684 (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 federal rule 11(e)(6).
2005 Amendment. Rule 3.172(c)(9) added. See section 394.910, et seq., Fla. Stat.; and State v. Harris, 881 So.2d 1079 (Fla. 2004).
RULE 3.180. PRESENCE OF DEFENDANT
(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of rule
3.170(a);
(3) at any pretrial conference, unless waived by the defendant in writing;
(4) at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury;
(5) at all proceedings before the court when the jury is present;
(6) when 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) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the imposition of sentence.
(b) Presence; Definition. A defendant is present for purposes of this rule if the defendant is physically in
attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the
issues being discussed.
(c) Defendant Absenting Self.
(1) Trial. If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or
before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the
court without leave of court, or is removed from the presence of the court because of his or her 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 the 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.
(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself
as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself
or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all
times.
(d) Defendant May Be Tried in Absentia for Misdemeanors. 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.
(e) Presence of Corporation. A corporation may appear by counsel at all times and for all purposes.
Committee Notes
1968 Adoption. (a) The suggested rule is in great part a recopying of section 914.01, Florida Statutes:
In (3) the words “at the beginning of the trial” are recommended for inclusion to avoid questions arising as to the necessity for the defendant’s
presence at times other than upon trial, such as when the jury venire is ordered, etc.
Subdivision (a)(8) is not in the present statute. However, it is deemed advisable to include it, as the several sections of chapter 921, Florida
Statutes, particularly section 921.07, appear to impliedly or expressly require the defendant’s presence at such times.
(c) The statute and the suggested rule make no distinction between 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 captured within a reasonable time.
(d) It is suggested that this language be used rather than the all-inclusive general language of the present statute as to misdemeanor cases.
(e) This provision does not appear in section 914.01, Florida Statutes, but it is a part of Federal Rule of Criminal Procedure 43. It is deemed
useful to include it.
1972 Amendment. Same as prior rule except (3) added to conform to rule 3.220(k); other subdivisions renumbered.
V. PRETRIAL MOTIONS AND DEFENSES
RULE 3.190. PRETRIAL MOTIONS
(a) In General. Every pretrial 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) Motion to Dismiss; Grounds. 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) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the
indictment or information either before or at 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 a motion to dismiss that is not presented by a motion to dismiss within the
time hereinabove provided shall be considered 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 the defendant has been pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has 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 the motion is based should be alleged specifically and the motion sworn to.
(d) Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters.
Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted
unless specifically denied by the state in the traverse. The court may receive evidence on any issue of fact necessary
to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state
files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The
demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.
(e) Effect of Sustaining a Motion to Dismiss. 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 the defendant has been released on bail, the
defendant and the sureties shall be exonerated; if money or bonds have been deposited as bail, the money or bonds shall
be refunded.
(f) Order Dismissing. For the purpose of construing section 924.07(1), Florida Statutes (1969), the statutory term
“order quashing” shall be taken and held to mean “order dismissing.”
(g) Motion for Continuance.
(1) Definition. A continuance within the meaning of this rule is the postponement of a cause for any period of
time.
(2) Cause. On motion of the state or a defendant or on its own motion, the court may grant a continuance, in its
discretion for good cause shown.
(3) Time for Filing. 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) Certificate of Good Faith. A motion for continuance shall be accompanied by a certificate of the movant’s
counsel that the motion is made in good faith.
(5) Affidavits. The party applying for a continuance may file affidavits in support of the motion, and the
adverse party may file counter-affidavits in opposition to the motion.
(h) Motion to Suppress Evidence in Unlawful Search.
(1) Grounds. A defendant aggrieved by an unlawful search and seizure may move to suppress anything so
obtained for use as evidence because:
(A) the property was illegally seized without a warrant;
(B) the warrant is insufficient on its face;
(C) the property seized is not the property described in the warrant;
(D) there was no probable cause for believing the existence of the grounds on which the warrant was issued;
or
(E) the warrant was illegally executed.
(2) Contents of Motion. Every motion to suppress evidence shall state clearly 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) Hearing. 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 the defendant’s position and the state may offer rebuttal evidence.
(4) Time for Filing. 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) Motion to Suppress a Confession or Admission Illegally Obtained.
(1) Grounds. On motion of the defendant or on its own motion, the court shall suppress any confession or
admission obtained illegally from the defendant.
(2) Time for Filing. 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 in its discretion may entertain the motion
or an appropriate objection at the trial.
(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided to rule on the
motion.
(j) Motion to Take Deposition to Perpetuate Testimony.
(1) After the filing of an indictment or information on which a defendant is to be tried, the defendant or the state
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 the witness’s testimony is material, and that it is
necessary to take the 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 nonprivileged designated books, papers,
documents, or tangible objects be produced at the same time and place. If the application is made within 10 days
before the trial date, the court may deny the application.
(2) If the defendant or the state desires to perpetuate the testimony of a witness living in or out of the state whose
testimony is material and necessary to the case, the same proceedings shall be followed as provided in subdivision (j)(1),
but the testimony of the witness may be taken before an official court reporter, transcribed by the reporter, and filed in
the trial court.
(3) If the deposition is taken on the application of the state, the defendant and the defendant’s 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 the defendant in
the presence of the witness during the examination. A defendant not in custody may be present at the examination,
but the failure to appear after notice and tender of expenses shall constitute a waiver of the right to be present.
The state 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 state 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 state and that the state
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 into evidence when the attendance of the witness can be procured. If the
court determines that any person whose deposition has been taken is absent because of procurement, inducement, or
threats of any person on behalf of the state or of the defendant or of any person on the defendant’s behalf, the
deposition shall not be read in evidence on behalf of the defendant.
(k) Motion to Expedite. On motion by the state, the court, in the exercise of its discretion, shall take into
consideration the dictates of sections 825.106 and 918.0155, Florida Statutes (1995).
Committee Notes
1968 Adoption. (a) New; devised by committee.
(b) Substantially the same as section 909.02, Florida Statutes, except changes name of “motion to quash” to “motion to dismiss.” This
conforms to the terminology of the Federal Rules of Criminal Procedure. The statute authorizing the state to appeal 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 an accused. Although
there is now a conclusive presumption of probable cause once an indictment or information is filed (see Sullivan v. State, 49 So.2d 794 (Fla.
1951)), it is felt that this rule is necessary. Primarily, this procedure will permit a pretrial determination of the law of the case when the facts are
not in dispute. In a sense, this is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under this rule 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, Florida Statutes. With reference to the maximum time that a defendant will be held in
custody or on bail pending the filing of a new indictment or information, the trial court is given discretion in setting such time as to both the
indictment and information. This proposal differs from section 909.05, Florida Statutes, with reference to the filing of a new indictment in that the
statute requires that the new indictment be found by the same grand jury or the next grand jury having the authority to inquire into the offense. If
the supreme court has the authority to deviate from this statutory provision by court rule, it seems that the trial court should be granted the same
discretion with reference to the indictment that it is granted concerning the information. The statute is harsh in that under its provisions a person
can be in custody or on bail for what may be an unreasonable length of time before a grand jury is required to return an indictment in order that
the custody or bail be continued.
(g)(1) This subdivision is almost the same as section 916.02(1), Florida Statutes.
(g)(2) This subdivision is almost the same as section 916.02(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, Florida Statutes.
(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 of Criminal Procedure and federal rule 41(e).
(j) This subdivision rewords and adds to federal rule 14. It covers the subject matter of section 918.02, Florida Statutes.
(k) This rule is almost the same as federal rule 13, with provision added for trial by affidavit.
(l) Substantially same as section 916.06, Florida Statutes, with these exceptions: application cannot be made until indictment, information, or
trial affidavit is filed; application must be made at least 10 days before trial; oral deposition in addition to written interrogatories is permissible.
1972 Amendment. Subdivision (h) is amended to require the defendant to specify the factual basis behind the grounds for a motion to suppress
evidence. Subdivision (l) is amended to permit the state to take depositions under the same conditions that the defendant can take them. Former
subdivisions (j) and (k) transferred to rules 3.150, 3.151, and 3.152. Subdivisions (l) and (m) renumbered (j) and (k) respectively. Otherwise, same as
prior rule.
1977 Amendment. This amendment resolves any ambiguity in the rule as to whether the state must file a general or a specific traverse to
defeat a motion to dismiss filed under the authority of rule 3.190(c)(4).
See State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974).
The amendment clearly now requires a specific traverse to specific material fact or facts.
1992 Amendment. The amendments, in addition to gender neutralizing the wording of the rule, make a minor grammatical change by
substituting the word “upon” for “on” in several places. The amendments also delete language from subdivision (a) to eliminate from the rule any
reference as to when pretrial motions are to be served on the adverse party. Because rule 3.030 addresses the service of pleadings and papers,
such language was removed to avoid confusion and reduce redundancy in the rules.

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Crim Procedure Fla

(l) Form of Notice to Appear and Schedule of Witnesses and Evidence. The notice to appear and schedule of
witnesses and evidence 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 or she has just and reasonable
grounds to believe, and does believe, that:
On …..(date)….., at ___________ ( )a.m. ( )p.m.
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)
in violation of
( ) State Statute
section(s): : ( ) Municipal Ord.
DID (Narrative):
Name of Officer ID Agency
[ ] Mandatory appearance in court,
Location
on …..(date)….., at ______ ( )a.m. ( )p.m.
[ ] 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 on …..(date)……
_______________________________
Notary Public, State of Florida
[Editor’s Note: Jurat should include identification information required by F.S. 117.05(13).]
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 …..(date)….., _____ to …..(date)….., _____
Hour 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 the 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 court.”
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
…..(date of notice to appear)…..
Offense(s): (1)_______________
(2)______________
TANGIBLE EVIDENCE: (If none, write “None”)
Item:
Obtained from (person and/or place):
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
Committee Notes
1992 Amendment. The amendment deletes subdivision (k) and reletters subdivisions (l) and (m). The elimination of subdivision (k) will
entitle individuals charged with criminal violations to the same discovery, without regard to the nature of the charging instrument. As amended,
persons charged by way of a notice to appear can obtain the same discovery as persons charged by way of either an information or an indictment.
In this regard the 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 APPEARANCE
(a) Prompt First Appearance. 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 1 or more
judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings.
(b) Advice to Defendant. At the defendant’s first appearance the judge shall immediately inform the defendant of
the charge and provide the defendant with a copy of the complaint. The judge shall also adequately advise the
defendant that:
(1) the defendant is not required to say anything, and that anything the defendant says may be used against him
or her;
(2) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that
counsel will be appointed; and
(3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided
reasonable means to do so.
(c) Counsel for Defendant.
(1) Appointed Counsel. If practicable, the judge should determine prior to the first appearance whether the
defendant is financially able to afford counsel and whether the defendant desires representation. When the judge
determines that the defendant is entitled to court-appointed counsel and desires counsel, the judge shall immediately
appoint counsel. This determination must be made and, if required, counsel appointed no later than the time of the
first appearance and before 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
judge.
(2) Retained Counsel. When the defendant has employed counsel or is financially able and desires to employ
counsel to represent him or her at first appearance, the judge shall allow the defendant a reasonable time to send for
counsel and shall, if necessary, postpone the first appearance hearing for that purpose. The judge 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 judge may appoint counsel to represent the defendant for the first appearance
hearing.
(3) Opportunity to Confer. 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) Waiver of Counsel. The defendant may waive the right to counsel at first appearance. The waiver,
containing an explanation of the 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) Pretrial Release. The judicial officer shall proceed to determine conditions of release pursuant to rule 3.131.
Committee Notes
1972 Amendment. Same as prior rule except (b), which is new.
RULE 3.131. PRETRIAL RELEASE
(a) Right to Pretrial Release. 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 the judicial process, the accused may be detained.
(b) Hearing at First AppearanceCConditions of Release.
(1) Unless the state has filed a motion for pretrial detention pursuant to rule 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. Except as otherwise provided by this rule, there is a presumption in favor of release on nonmonetary
conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following
conditions of release that 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, shall impose any combination of the following conditions:
(A) personal recognizance of the defendant;
(B) execution of an unsecured appearance bond in an amount specified by the judge;
(C) placement of restrictions on the travel, association, or place of abode of the defendant during the period of
release;
(D) placement of the defendant in the custody of a designated person or organization agreeing to supervise the
defendant;
(E) 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 the bail by providing an appearance bond; or
(F) 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 circumstances 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, need for substance abuse evaluation and/or treatment, 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 that 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 is on probation, parole, or other release pending completion of
sentence; and any other facts the court considers relevant.
(4) No person charged with a dangerous crime, as defined in section 907.041(4)(a), Florida Statutes, shall be
released on nonmonetary conditions under the supervision of a pretrial release service, unless the service certifies to
the court that it has investigated or otherwise verified the conditions set forth in section 907.041(3)(b), Florida
Statutes.
(5) 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
subdivision may result in the revocation or modification of bail. However, no defendant shall be compelled to
provide information regarding his or her criminal record.
(6) 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) Consequences of Failure to Appear.
(1) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in section
903.26, 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 section
903.26, Florida Statutes, and who is arrested at any time following forfeiture shall not be eligible for a recognizance
bond or any form of bond that 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) Subsequent Application for Setting or Modification of Bail.
(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 the trial court, to
the circuit court. The motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may
modify or set a condition of release, unless the judge:
(A) imposed the conditions of bail or set the amount of bond required;
(B) is the chief judge of the circuit in which the defendant is to be tried;
(C) has been assigned to preside over the criminal trial of the defendant; or
(D) is 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 the defendant.
(3) If 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) Bail Before Conviction; Condition of Undertaking.
(1) If a person is admitted to bail for appearance for a preliminary hearing or on a charge that a judge is
empowered to try, the condition of the undertaking shall be that the person will appear for the hearing or to answer
the charge and will submit to the orders and process of the judge trying the same and will not depart without leave.
(2) If a person is admitted to bail after being held to answer by a judge or after an indictment or information on
which the person is to be tried has been filed, the condition of the undertaking shall be that the person will appear to
answer the charges before the court in which he or she may be prosecuted and submit to the orders and process of
the court and will not depart without leave.
(f) Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on
bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment,
sentence, and any further order of the court.
(g) Arrest and Commitment by Court. The court in which the cause is pending may direct the arrest and
commitment of the defendant who is at large on bail when:
(1) there has been a breach of the undertaking;
(2) it appears that the defendant’s sureties or any of them are dead or cannot be found or are insufficient or have
ceased to be residents of the state; or
(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 or she would be if he or she had 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) Bail after Recommitment. If the defendant applies to be admitted to bail after recommitment, the court that
recommitted the defendant shall determine conditions of release, if any, subject to the limitations of (b) above.
(i) Qualifications of Surety after Order of Recommitment. 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) Issuance of Capias; Bail Specified. On 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
the person. If the person named in the indictment or information is a child and the 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) Summons on Misdemeanor Charge. When a complaint is filed charging the commission of a misdemeanor
only and the judge 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 judge shall direct the clerk to issue a summons instead of a capias
unless the 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.
(l) Summons When Defendant Is Corporation. On 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.
Committee Notes
1968 Adoption. (a) Same as section 903.01, Florida Statutes.
(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 proposals contain the essentials of present sections 907.01, 907.02, and 901.09(3), Florida Statutes,
a change of some of the terminology being warranted for purpose of clarity.
(m) Formerly rule 3.150(c). This proposal contains all of the essentials of section 907.03, Florida Statutes, and that part of section 901.14,
Florida Statutes, pertaining to postindictment or postinformation procedure. A charge by affidavit is provided.
Although subdivision (g) is the same as section 918.01, Florida Statutes, its constitutionality was questioned by the subcommittee,
constitutional right to bail and presumption of innocence.
1972 Amendment. Same as prior rule except (b), which is new. (k), (l), and (m) are taken from prior rule 3.150.
1977 Amendment. This proposal amends subdivision (b)(4) of the present rule [formerly rule 3.130(b)(4)] to expand the forms of pretrial
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.
1983 Amendment. Rule 3.131(d) is intended to replace former rule 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 state or by the defendant.
Court Comment
1977 Amendment. Subdivision (a) was repealed by Chapter 76-138, §2, Laws of Florida, insofar as it was inconsistent with the provision of
that statute. Subdivision (a) has been amended so as to comply with the legislative act.
RULE 3.132. PRETRIAL DETENTION
(a) Motion Filed at First Appearance. A person arrested for an offense for which detention may be ordered
under section 907.041, Florida Statutes, shall be taken before a judicial officer for a first appearance within 24 hours
of arrest. The state may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by
the state attorney or an assistant, setting forth with particularity the grounds and the essential facts on which pretrial
detention is sought and certifying that the state attorney 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 rule 3.131(b). If the
motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine the conditions of
release pursuant to the provisions of rule 3.131(b). 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 rule 3.133 and the person has been
released from custody, the person may be recommitted to custody pending a final hearing on pretrial detention.
(b) Motion Filed after First Appearance. A motion for pretrial detention may be filed at any time prior to trial.
The motion shall be made to the court with trial jurisdiction. On 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
the 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 the motion as provided in (c)
below.
(c) Final Order.
(1) Hearing Required. 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 state attorney has the burden of
showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida
Statutes. The defendant may request a continuance. The state shall be entitled to 1 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 the defendant be detained in excess of 10 days, unless the 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) Findings and Conclusions to Be Recorded. 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) Dissolution of Order. 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) Further Proceedings on Order. If 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 a copy of the 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.

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Criminal Procedure Florida

RULE 3.050. ENLARGEMENT OF TIME
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 a 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 when 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.
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil Procedure.
1972 Amendment. Same as prior rule.
RULE 3.060. TIME FOR SERVICE OF MOTIONS AND NOTICE OF HEARING
A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof,
shall be served on the adverse party a reasonable time before the time specified for the hearing.
Committee Notes
1968 Adoption. Taken from rules of civil procedure.
1972 Amendment. Same as prior rule.
RULE 3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL
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 on the party and the notice or paper is served on the party by mail, 3 days
shall be added to the prescribed period.
Committee Notes
1968 Adoption. This is the same as rule 1.6(e), Florida Rules of Civil Procedure, except for the omission of subdivision (c) of the civil rules,
which appears to be inapplicable to criminal cases.
1972 Amendment. Same as prior rule.
RULE 3.080. NONVERIFICATION OF PLEADINGS
Except when otherwise specifically provided by these rules or an applicable statute, every written pleading or
other paper of a party represented by an attorney need not be verified or accompanied by an affidavit.
Committee Notes
1968 Adoption. Taken from rules of civil procedure.
1972 Amendment. Same as prior rule.
RULE 3.090. PLEADING CAPTIONS
Every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the
file number, the name of the first party on each side with an appropriate indication of other parties, and a designation
identifying the party filing it and its nature or the nature of the order, as the case may be. All papers filed in the
action shall be styled in such a manner as to indicate clearly the subject matter of the paper and the party requesting
or obtaining relief.
RULE 3.111. PROVIDING COUNSEL TO INDIGENTS
(a) When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel
appointed when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at
the first appearance before a committing judge, whichever occurs earliest.
(b) Cases Applicable.
(1) Counsel shall be provided to indigent persons in all prosecutions for offenses punishable by incarceration
including appeals from the conviction thereof. In the discretion of the court, 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, at least 15
days prior to trial, files in the cause a written order of no incarceration certifying that the defendant will not be
incarcerated in the case pending trial or probation violation hearing, or as part of a sentence after trial, guilty or nolo
contendere plea, or probation revocation. This 15-day requirement may be waived by the defendant or defense
counsel.
(A) If the court issues an order of no incarceration after counsel has been appointed to represent the defendant,
the court may discharge appointed counsel unless the defendant is incarcerated or the defendant would be
substantially disadvantaged by the discharge of appointed counsel.
(B) If the court determines that the defendant would be substantially disadvantaged by the discharge of
appointed counsel, the court shall either:
i. not discharge appointed counsel; or
ii. discharge appointed counsel and allow the defendant a reasonable time to obtain private counsel, or if
the defendant elects to represent himself or herself, a reasonable time to prepare for trial.
(C) If the court withdraws its order of no incarceration, it shall immediately appoint counsel if the defendant is
otherwise eligible for the services of the public defender. The court may not withdraw its order of no incarceration
once the defendant has been found guilty or pled nolo contendere.
(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 that 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 the person shall defray that
portion of the cost of representation and the reasonable costs of investigation as he or she is able without substantial
hardship to the person or the person’s family, as directed by the court.
(4) “Indigent” shall mean a person who is unable to pay for the services of an attorney, including costs of
investigation, without substantial hardship to the person or the person’s family; “partially indigent” 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 the person or the person’s family.
(5) Before appointing a public defender, the court shall:
(A) inform the accused that, if the public defender is appointed, a lien for the services rendered by the public
defender may be imposed under section 27.56, Florida Statutes;
(B) make inquiry into the financial status of the accused in a manner not inconsistent with the guidelines
established by section 27.52, Florida Statutes. The accused shall respond to the inquiry under oath;
(C) require the accused to execute an affidavit of insolvency as required by section 27.52, Florida Statutes.
(c) Duty of Booking Officer. In addition to any other duty, the officer who commits a defendant to custody has
the following duties:
(1) The officer shall immediately advise the defendant:
(A) of the right to counsel;
(B) 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 that he or she cannot afford counsel, the officer shall
immediately and effectively place the defendant in communication with the (office of) public defender of the circuit
in which the arrest was made.
(3) If the defendant indicates that he or she has an attorney or is able to retain an attorney, the officer shall
immediately and effectively place the defendant in communication with the attorney or the Lawyer Referral Service
of the local bar association.
(4) The public defender of each judicial circuit may interview a defendant when contacted by, or on behalf of, a
defendant who is, or claims to be, indigent as defined by law.
(A) If the defendant is in custody and reasonably appears to be indigent, the public defender shall tender such
advice as is indicated by the facts of the case, seek the setting of a reasonable bail, and otherwise represent the
defendant pending a formal judicial determination of indigency.
(B) If the defendant is at liberty on bail or otherwise not in custody, the public defender shall elicit from the
defendant only the information that 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 the defendant.
(d) Waiver of Counsel.
(1) The failure of a defendant to request appointment of counsel or the announced intention of a defendant to
plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.
(2) A defendant shall not be considered to have waived the assistance of counsel until the entire process of
offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension
of that offer and the accused’s capacity to make a knowing and intelligent waiver. Before determining whether the
waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of selfrepresentation.
(3) Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a
defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the
defendant has made a knowing and intelligent waiver of the right to counsel.
(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 2 attesting witnesses. The 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) Withdrawal of Defense Counsel After Judgment and Sentence. The attorney of record for a defendant in a
criminal proceeding shall not be relieved of any duties, nor be permitted to withdraw as counsel of record, except
with approval of 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 a transcript 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 transcript that supports the statement of judicial acts to be
reviewed, if a transcript will require expenditure of public funds; or
(2) substitute counsel has been obtained or appointed, or a statement has been filed with the appellate court that
the appellant has exercised the right to self-representation. In publicly funded cases, the public defender for the local
circuit court shall be appointed initially until the record is transmitted to the appellate court; or
(3) the time has expired for filing of a notice of appeal, and no notice has been filed.
Orders allowing withdrawal of counsel are conditional, and counsel shall remain of record for the limited purpose of
representing the defendant in the lower tribunal regarding any sentencing error that the lower tribunal is authorized
to address during the pendency of the direct appeal under rule 3.800(b)(2).
Committee Notes
1972 Adoption. Part 1 of the ABA Standard relating to providing defense services 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 Criminal 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, i.e., 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 within
which 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 adopt 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 standard 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 the 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 standard 7.2 and the commentaries thereunder.
1980 Amendment. Modification of the existing rule (the addition of (b)(5)(A)–(C)) 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).
1992 Amendment. In light of State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla. 1990), in which the supreme
court pronounced that motions seeking belated direct appeal based on ineffective assistance of counsel should be filed in the trial court pursuant
to rule 3.850, the committee recommends that rule 3.111(e) be amended to detail with specificity defense counsel’s duties to perfect an appeal
prior to withdrawing after judgment and sentence. The present provision merely notes that such withdrawal is governed by Florida Rule of
Appellate Procedure 9.140(b)(3).
1998 Amendment. The amendments to (d)(2)–(3) were adopted to reflect State v. Bowen, 698 So.2d 248 (Fla. 1997), which implicitly
overruled Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), rev’d on other grounds 216 So.2d 749 (Fla. 1968). See Fitzpatrick v.
Wainwright, 800 F.2d 1057 (11th Cir. 1986), for a list of factors the court may consider. See also McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct.
944, 79 L.Ed.2d 122 (1984), and Savage v. Estelle, 924 F.2d 1459 (9th Cir. 1990), cert. denied 501 U.S. 1255, 111 S.Ct. 2900, 115 L.Ed.2d 1064
(1992), which suggest that the defendant’s right to self-representation is limited when the defendant is not able or willing to abide by the rules of
procedure and courtroom protocol.
2000 Amendment. This rule applies only to judicial proceedings and is inapplicable to investigative proceedings and matters. See rule 3.010.
2002 Amendment. Indigent defendants are entitled to counsel if they are either currently in custody or might be incarcerated in their case. See
Alabama v. Shelton, 122 S.Ct. 1764, 1767 (2002) (Sixth Amendment forbids imposition of suspended sentence that may “end up in the actual
deprivation of a person’s liberty” unless defendant accorded “the guiding hand of counsel”). See also Tur v. State, 797 So. 2d 4 (Fla. 3d DCA
2001) (uncounseled plea to criminal charge cannot result in jail sentence based on violation of probationary sentence for that charge); Harris v.
State, 773 So.2d 627 (Fla. 4th DCA 2000).
Discharge of the public defender based on an order certifying no incarceration that is entered after the public defender has already spent
considerable time and resources investigating the case and preparing a defense may leave the defendant “in a position worse than if no counsel
had been appointed in the first place.” State v. Ull, 642 So. 2d 721, 724 (Fla. 1994).
In determining whether a defendant’s due process rights would be violated by the discharge of the public defender, the court should consider
all of the relevant circumstances, including, but not limited to:
1. The stage of the proceedings at which the order of no incarceration is entered.
2. The extent of any investigation and pretrial preparation by the public defender.
3. Any prejudice that might result if the public defender is discharged.
4. The nature of the case and the complexity of the issues.
5. The relationship between the defendant and the public defender.
Counsel may be provided to indigent persons in all other proceedings in, or arising from, a criminal case and the court should resolve any doubts
in favor of the appointment of counsel for the defendant. See Graham v. State, 372 So.2d 1363, 1365 (Fla. 1979).
See form found at Fla.R.Crim.P. 3.994.
2005 Amendment. See Affidavit of Indigent Status as provided by In re Approval of Form for Use by Clerks of the Circuit Courts Pursuant to
Rule 10-2.1(a) of the Rules Regulating the Florida Bar, 877 So. 2d 720 (Fla. 2004).
RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES
(a) Statement of Purpose. The purpose of these rules is to set minimum standards for attorneys in
capital cases to help ensure that competent representation will be provided to capital defendants in all
cases. Minimum standards that have been promulgated concerning representation for defendants in
criminal cases generally and the level of adherence to such standards required for noncapital cases
should not be adopted as sufficient for death penalty cases. Counsel in death penalty cases should be
required to perform at the level of an attorney reasonably skilled in the specialized practice of capital
representation, zealously committed to the capital case, who has had adequate time and resources for
preparation. These minimum standards for capital cases are not intended to preclude any circuit from
adopting or maintaining standards having greater requirements.
(b) Definitions. A capital trial is defined as any first-degree murder case in which the State has not
formally waived the death penalty on the record. A capital appeal is any appeal in which the death penalty
has been imposed. A capital postconviction proceeding is any postconviction proceeding where the
defendant is still under a sentence of death.
(c) Applicability. This rule applies to all lawyers handling capital trials and capital appeals, who are
appointed or retained on or after July 1, 2002. Subject to more specific provisions in the rule, the
standards established by the rule apply to Public Defenders and their assistants.
(d) List of Qualified Conflict Counsel.
(1) Every circuit shall maintain a list of conflict counsel qualified for appointment in capital cases in
each of three categories:
(A) lead trial counsel;
(B) trial cocounsel; and
(C) appellate counsel.
No attorney may be appointed to handle a capital trial or appeal unless duly qualified on the appropriate
list.
(2) The conflict committee for each circuit is responsible for approving and removing attorneys from
the list pursuant to section 925.037, Florida Statutes. Each circuit committee is encouraged to obtain additional
input from experienced capital defense counsel.
(e) Appointment of Counsel. A court must appoint lead counsel and, upon written application and a
showing of need by lead counsel, should appoint cocounsel to handle every capital trial in which the
defendant is not represented by retained counsel or the Public Defender. Lead counsel shall have the
right to select cocounsel from attorneys on the lead counsel or cocounsel list. Both attorneys shall be
reasonably compensated for the trial and sentencing phase. Except under extraordinary circumstances,
only one attorney may be compensated for other proceedings. In capital cases in which the Public
Defender is appointed, the Public Defender shall designate lead and cocounsel.
(f) Lead Counsel. Lead trial counsel assignments should be given to attorneys who:
(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice;
and
(2) are experienced and active trial practitioners with at least five years of litigation experience in the
field of criminal law; and
(3) have prior experience as lead counsel in no fewer than nine state or federal jury trials of serious
and complex cases which were tried to completion, as well as prior experience as lead defense counsel or
cocounsel in at least two state or federal cases tried to completion in which the death penalty was sought.
In addition, of the nine jury trials which were tried to completion, the attorney should have been lead
counsel in at least three cases in which the charge was murder; or alternatively, of the nine jury trials, at
least one was a murder trial and an additional five were felony jury trials; and
(4) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
(5) are familiar with and experienced in the utilization of expert witnesses and evidence, including but
not limited to psychiatric and forensic evidence; and
(6) have demonstrated the necessary proficiency and commitment which exemplify the quality of
representation appropriate to capital cases, including but not limited to the investigation and presentation
of evidence in mitigation of the death penalty; and
(7) have attended within the last two years a continuing legal education program of at least twelve
hours’ duration devoted specifically to the defense of capital cases. Attorneys who do not meet the
continuing legal education requirement on July 1, 2002, shall have until March 1, 2003, in which to satisfy
the continuing legal education requirement.
(g) Cocounsel. Trial cocounsel assignments should be given to attorneys who:
(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice;
and
(2) qualify as lead counsel under paragraph (f) of these standards or meet the following requirements:
(A) are experienced and active trial practitioners with at least three years of litigation experience in
the field of criminal law; and
(B) have prior experience as lead counsel or cocounsel in no fewer than three state or federal jury
trials of serious and complex cases which were tried to completion, at least two of which were trials in
which the charge was murder; or alternatively, of the three jury trials, at least one was a murder trial and
one was a felony jury trial; and
(C) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
(D) have demonstrated the necessary proficiency and commitment which exemplify the quality of
representation appropriate to capital cases, and
(E) have attended within the last two years a continuing legal education program of at least twelve
hours’ duration devoted specifically to the defense of capital cases. Attorneys who do not meet the continuing
legal education requirement on July 1, 2002, shall have until March 1, 2003, in which to satisfy the
requirement.
(h) Appellate Counsel. Appellate counsel assignments should be given to attorneys who:
(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
(2) are experienced and active trial or appellate practitioners with at least five years of experience in
the field of criminal law; and
(3) have prior experience in the appeal of at least one case where a sentence of death was imposed,
as well as prior experience as lead counsel in the appeal of no fewer than three felony convictions in
federal or state court, at least one of which was an appeal of a murder conviction; or alternatively, have
prior experience as lead counsel in the appeal of no fewer than six felony convictions in federal or state
court, at least two of which were appeals of a murder conviction; and
(4) are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
(5) have demonstrated the necessary proficiency and commitment which exemplify the quality of
representation appropriate to capital cases; and
(6) have attended within the last two years a continuing legal education program of at least twelve
hours’ duration devoted specifically to the defense of capital cases. Attorneys who do not meet the
continuing legal education requirement on July 1, 2002, shall have until March 1, 2003, in which to satisfy
the requirement.
(i) Notice of Appearance. An attorney who is retained or appointed in place of the Public Defender to
represent a defendant in a capital case shall immediately file a notice of appearance certifying that he or
she meets the qualifications of this rule. If the office of the Public Defender is appointed to represent the
defendant, the public defender shall certify that the assistants assigned as lead and cocounsel meet the
requirements of this rule. A notice of appearance filed under this rule shall be served on the defendant.
(j) Limitation on Caseloads.
(1) Generally. As soon as practicable, the trial court should conduct an inquiry relating to counsel’s
availability to provide effective assistance of counsel to the defendant. In assessing the availability of
prospective counsel, the court should consider the number of capital or other cases then being handled by
the attorney and any other circumstances bearing on the attorney’s readiness to provide effective
assistance of counsel to the defendant in a timely fashion. No appointment should be made to an attorney
who may be unable to provide effective legal representation as a result of an unrealistically high caseload.
Likewise, a private attorney should not undertake the representation of a defendant in a capital case if the
attorney’s caseload is high enough that it might impair the quality of legal representation provided to the
defendant.
(2) Public Defender. If a Public Defender seeks to refuse appointment to a new capital case based
on a claim of excessive caseload, the matter should be referred to the Chief Judge of the circuit or to the
administrative judge as so designated by the Chief Judge. The Chief Judge or his or her designate should
coordinate with the Public Defender to assess the number of attorneys involved in capital cases, evaluate
the availability of prospective attorneys, and resolve any representation issues.
(k) Exceptional Circumstances. In the event that the trial court determines that exceptional circumstances
require appointment of counsel not meeting the requirements of this rule, the trial court shall enter
an order specifying, in writing, the exceptional circumstances requiring deviation from the rule and the
court’s explicit determination that counsel chosen will provide competent representation in accord with the
policy concerns of the rule.
Committee Comments
These standards are based on the general premise that the defense of a capital case requires specialized skill and expertise. The Supreme Court
has not only the authority, but the constitutional responsibility to ensure that indigent defendants are provided with competent counsel, especially
in capital cases where the State seeks to take the life of the indigent defendant. The Supreme Court also has exclusive jurisdiction under Article V
section 15 of the Florida Constitution to “[r]egulate the admission of persons to the practice of law and the discipline of persons admitted.”
Implied in this grant of authority is the power to set the minimum requirements for the admission to practice law, see In re Florida Board of Bar
Examiners, 353 So.2d 98 (Fla. 1977), as well as the minimum requirements for certain kinds of specialized legal work. The Supreme Court has
adopted minimum educational and experience requirements for board certification in other specialized fields of the law.
The experience and continuing educational requirements in these standards are based on existing local standards in effect throughout the state
as well as comparable standards in effect in other states. Specifically, the committee considered the standards for the appointment of counsel in
capital cases in the Second, Sixth, Eleventh, Fifteenth, and Seventeenth Circuits, the statewide standards for appointing counsel in capital cases in
California, Indiana, Louisiana, Ohio, and New York, and the American Bar Association standards for appointment of counsel in capital cases.
These standards are not intended to establish any independent legal rights. For example, the failure to appoint cocounsel, standing alone, has
not been recognized as a ground for relief from a conviction or sentence. See Ferrell v. State, 653 So.2d 367 (Fla. 1995); Lowe v. State, 650 So.2d
969 (Fla. 1994); Armstrong v. State, 642 So.2d 730 (Fla. 1994). Rather, these cases stand for the proposition that a showing of inadequacy of
representation in the particular case is required. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These
rulings are not affected by the adoption of these standards. Any claims of ineffective assistance of counsel will be controlled by Strickland.
The American Bar Association Standards and many other state standards require the appointment of two lawyers at the trial level in every
prosecution that could result in the imposition of the death penalty. The committee has modified this requirement by allowing the trial court some
discretion as to the number of attorneys, and by eliminating certain provisions that may be unnecessary or economically unfeasible. Paragraph (e)
minimizes the potential duplication of expenses by limiting the compensable participation of cocounsel. In addition, the standard adopted herein
requires an initial showing by lead counsel of the need for cocounsel and, while the standard suggests that cocounsel should ordinarily be
appointed, the ultimate decision is left to the discretion of the trial court.
The committee emphasizes that the right to appointed counsel is not enlarged by the application of these standards. The court should appoint
conflict counsel only if there is a conflict and the defendant otherwise qualifies for representation by the Public Defender. A defendant who is
represented by retained counsel is not entitled to the appointment of a second lawyer at public expense merely because that defendant is unable to
bear the cost of retaining two lawyers.
RULE 3.115. DUTIES OF STATE ATTORNEY; CRIMINAL INTAKE
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 proceedings.
III. PRELIMINARY PROCEEDINGS
RULE 3.120. COMMITTING JUDGE
Each state and county judge is a committing judge 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 that show that such person violated a criminal law of this state within the jurisdiction of the
judge to whom the complaint is presented. The judge may take testimony under oath to determine if there is reasonable
ground to believe the complaint is true. The judge 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 the defendant from custody or from any
undertaking to appear. The judge may authorize the clerk to issue a summons.
Committee Notes
1968 Adoption. This is substantially the same as part of section 901.01, Florida Statutes. (The remaining part should be retained as a statute.)
It differs from the statute by requiring the complaint to be in writing and by identifying the initiating instrument as a “complaint,” thus adopting
the federal terminology which is more meaningful and modern. Some doubt was expressed as to whether the terms of the statute incorporated in
the rule are within the rulemaking power of the Supreme Court.
1972 Amendment. Substantially same as former rule. Altered to incorporate the provision for testimony under oath formerly contained in rule 3.121(a),
and authorize the execution of the affidavit before a notary or other person authorized to administer oaths.
RULE 3.121. ARREST WARRANT
(a) Issuance. An arrest warrant, when issued, shall:
(1) be in writing and in the name of the State of Florida;
(2) set forth substantially the nature of the offense;
(3) command that the person against whom the complaint was made be arrested and brought before a judge;
(4) specify the name of the person to be arrested or, if the name is unknown to the judge, designate the person
by any name or description by which the person can be identified with reasonable certainty;
(5) state the date when issued and the county where issued;
(6) be signed by the judge with the title of the office; and
(7) in all offenses bailable as of right be endorsed with the amount of bail and the return date.
(b) Amendment. 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 judge to remedy such defect.
Committee Notes
1968 Adoption. (a) This is substantially the same as section 901.02, Florida Statutes, except that the rule requires a written complaint. Also,
the rule does not incorporate that seldom used part of the statute that permits the magistrate to issue an arrest warrant upon affidavits made before
the prosecuting attorney.
(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 Amendment. (a) of former rule has been deleted, as its substance is now contained in rules 3.120 and 3.130; (b) has been renumbered as
(a); (c) has been renumbered as (b).
RULE 3.125. NOTICE TO APPEAR
(a) Definition. Unless indicated otherwise, notice to appear means 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) By Arresting Officer. 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 judge is not made, notice to appear may be issued by the arresting officer unless:
(1) the accused fails or refuses to sufficiently identify himself or herself or supply the required information;
(2) the accused refuses to sign the notice to appear;
(3) the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of
bodily injury to the accused or others;
(4) the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there
is substantial risk that the accused will refuse to respond to the notice;
(5) the officer has any suspicion that the accused may be wanted in any jurisdiction; or
(6) it appears that the accused previously has failed to respond to a notice or a summons or has violated the
conditions of any pretrial release program.
(c) By Booking Officer. If the arresting officer does not issue notice to appear because of one of the exceptions
listed in subdivision (b) and takes the accused to police headquarters, the booking officer may issue notice to appear
if the officer determines that there is a likelihood that the accused will appear as directed, based on a reasonable
investigation of the accused’s:
(1) residence and length of residence in the community;
(2) family ties in the community;
(3) employment record;
(4) character and mental condition;
(5) past record of convictions; or
(6) past history of appearance at court proceedings.
(d) How and When Served. If notice to appear is issued, it shall be prepared in quadruplicate. The officer shall
deliver 1 copy of the notice to appear to the arrested person and the person, to secure release, shall give a written
promise to appear in court by signing the 3 remaining copies: 1 to be retained by the officer and 2 to be filed with
the clerk of the court. These 2 copies shall be sworn to by the arresting officer before a notary public or a deputy
clerk. If notice to appear is issued under subdivision (b), the notice shall be issued immediately upon arrest. If notice
to appear is issued under subdivision (c), the notice shall be issued immediately on completion of the investigation.
The arresting officer or other duly authorized official then shall release from custody the person arrested.
(e) Copy to the Clerk of the Court. With the sworn notice to appear, 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 2 copies shall be filed with the clerk of the court.
(f) Copy to State Attorney. The clerk shall deliver 1 copy of the notice to appear and schedule of witnesses and
evidence filed therewith to the state attorney.
(g) Contents. If notice to appear is issued, it shall contain the:
(1) name and address of the accused;
(2) date of offense;
(3) offense(s) charged — by statute and municipal ordinance if applicable;
(4) counts of each offense;
(5) time and place that the accused is to appear in court;
(6) name and address of the trial court having jurisdiction to try the offense(s) charged;
(7) name of the arresting officer;
(8) name(s) of any other person(s) charged at the same time; and
(9) signature of the accused.
(h) Failure to Appear. If a person signs a written notice to appear and fails to respond to the notice to appear, a
warrant of arrest shall be issued under rule 3.121.
(i) Traffic Violations Excluded. Nothing contained herein shall prevent the operation of a traffic violations
bureau, the issuance of citations for traffic violations, or any procedure under chapter 316, Florida Statutes.
(j) Rules and Regulations. 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.
(k) Procedure by Court.
(1) When the accused appears before the court under the requirements of the notice to appear, the court shall
advise the defendant as set forth in rule 3.130(b), and the provisions of that rule shall apply. The accused at such
appearance may elect to waive the right to counsel and trial and enter a plea of guilty or nolo contendere by
executing the waiver form contained on the notice to appear, and the court may enter judgment and sentence in the
cause.
(2) In the event the defendant enters a plea of not guilty, the court may set the cause for jury or nonjury trial on
the notice to appear under the provisions of rules 3.140 and 3.160. When the court sets a trial date by the court, the
clerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the notice
to appear and to the witnesses whose names and addresses appear on the list filed by the officer, requiring their
attendance at trial.

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Computation of Time Criminal Procedure

RULE 3.040. COMPUTATION OF TIME
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 a Saturday, Sunday, or legal holiday, in which event
the period shall run until the end of the next day that 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 rules 3.130,
3.132(a) and (c), and 3.133(a).
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil Procedure.
1972 Amendment. Same as prior rule.
1988 Amendment. The 1983 amendments resulted in the reallocation of the time periods in rule 3.131 to rule 3.133, and also added an
important 5-day period in the new rule regarding pretrial detention in rule 3.132.
Court Commentary
1975 Amendment. Underlined portion is the only change. The effect is to remove the 72-hour provision of proposed rule 3.131 from the
Saturday, Sunday, and legal holiday exception.

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General Criminal Procedure Provisions

II. GENERAL PROVISIONS
RULE 3.030. SERVICE OF PLEADINGS AND PAPERS
(a) Service; When Required. Every pleading subsequent to the initial indictment or information on which a
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 about 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) Same; How Made. When 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 the party or by mailing it to the party’s 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:
(1) handing it to the attorney or to the party; or
(2) leaving it at the attorney’s office with the secretary or other person in charge; or
(3) if there is no one in charge, leaving it in a conspicuous place therein; or
(4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with
a family member above 15 years of age and informing that person of the contents. Service by mail shall be considered
complete upon mailing; or
(5) transmitting it electronically to each party with a cover sheet indicating the sender’s name, bar number, firm,
address, telephone number, facsimile or modem number, and the number of pages transmitted. Electronic service
occurs when transmission of the last page is complete. Service by delivery or electronic transmission after 5:00 p.m.
shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.
(c) Filing. 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) Filing with the Court Defined. 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 or her, in which event the judge shall note thereon the filing date and transmit them to the office of the
clerk. Unless any rule expressly provides to the contrary, filing of pleadings and other papers with the court may be
made by electronic transmission provided for and in accordance with the Florida Rules of Judicial Administration.
(e) Certificate of Service. When any attorney shall in substance certify:
I do certify that a copy (copies) hereof (has) (have) been furnished to (here insert name or names) by (delivery)
(mail) on …..(date)……
____________________
Attorney
the certificate shall be taken as prima facie proof of service in compliance with all rules of court and law.
Committee Notes
1968 Adoption. Taken from the Florida Rules of Civil Procedure.
1972 Amendment. Same as prior rule; (a) amended by deleting reference to trial on affidavit.
2000 Amendment. Fraudulent manipulation of electronically transmitted service should be considered contemptuous and dealt with by
appropriate sanctions by the court.

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STATE AND PROSECUTING ATTORNEY DEFINED

RULE 3.025. STATE AND PROSECUTING ATTORNEY DEFINED
Whenever the terms “state,” “state attorney,” “prosecutor,” “prosecution,” “prosecuting officer,” or “prosecuting attorney”
are used in these rules, they shall be construed to mean the prosecuting authority representing the state of Florida.
Committee Notes
2000 Adoption. This provision is new. Its purpose is to include the Office of Statewide Prosecution as a
prosecuting authority under these rules. No substantive changes are intended by the adoption of this rule.

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Rules and Construction Criminal Rules of Procedure

RULE 3.010. SCOPE
These rules shall govern the procedure in all criminal proceedings in state courts including proceedings involving
direct and indirect criminal contempt, proceedings under rule 3.850, and vehicular and pedestrian traffic offenses insofar
as these rules are made applicable by the Florida Rules of Practice and Procedure for Traffic Courts. These rules shall
not apply to direct or indirect criminal contempt of a court acting in any appellate capacity. These rules shall not apply
to rules 3.811 and 3.812. These rules shall be known as the Florida Rules of Criminal Procedure and may be cited as
Fla. R. Crim. P.
Committee Notes
1968 Adoption. These rules are not intended to apply to municipal courts, but are intended to apply to all state courts where “crimes” are
charged.
1972 Amendment. Amended to provide for applicability of rules to vehicular traffic offenses, when made so by the traffic court rules.
1992 Amendment. The rule is amended to refer to “Florida Rules of Criminal Procedure” and “Fla. R. Crim. P.” rather than to “Rules of
Criminal Procedure” and “R. Crim. P.” Although the Florida Bar Rules of Criminal Procedure already contains this language, the West
publications, Florida Rules of Court (1991) and Florida Criminal Law and Rules (1991), do not. The published version of rule 3.010, In re
Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1973), and the single published amendment to the rule, In re Amendments to the Florida
Rules of Criminal Procedure, 518 So.2d 256 (Fla. 1987), also do not contain these additions. The Florida Bar publication, Florida Criminal Rules
and Practice, in a commentary to rule 3.010, indicates that the Florida Supreme Court changed the citation form in an order effective January 1,
1977. The commentary indicates that the order stated in pertinent part:
In order to provide the clarity of citations in briefs filed in this court and other legal writings, the following amendments to the procedural
rules adopted by this court pursuant to Article V, Section 2(a), of the Florida Constitution are hereby adopted.
* * *
The last sentence of Rule 3.010 of the Florida Rules of Criminal Procedure is amended as follows: “These Rules shall be known as the
Florida Rules of Criminal Procedure and may be cited as Fla. R. Crim. P.”
However, these changes were apparently inadvertently omitted when the 1987 amendments were published. The proposed 1992 amendments
again incorporate into the rule the language set out in the court’s 1977 order.
The amendments would enable clearer identification of the rules and achieve consistency of style with other sets of court rules, in particular,
rule 9.800(i), Fla. R. App. P., which provides that the proper citation to the Florida Rules of Criminal Procedure is Fla. R. Crim. P.
RULE 3.020. PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination of every criminal proceeding. They shall be
construed to secure simplicity in procedure and fairness in administration.
Committee Notes
1968 Adoption. Substantially the same as Federal Rule 2.
1972 Amendment. Same as prior rule.
RULE 3.025.

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Florida Criminal Procedure

TABLE OF CONTENTS
I. SCOPE, PURPOSE, AND CONSTRUCTION
3.010. SCOPE
3.020. PURPOSE AND CONSTRUCTION
3.025. STATE AND PROSECUTING ATTORNEY DEFINED
II. GENERAL PROVISIONS
3.030. SERVICE OF PLEADINGS AND PAPERS
3.040. COMPUTATION OF TIME
3.050. ENLARGEMENT OF TIME
3.060. TIME FOR SERVICE OF MOTIONS AND NOTICE OF HEARING
3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL
3.080. NONVERIFICATION OF PLEADINGS
3.090. PLEADING CAPTIONS
3.111. PROVIDING COUNSEL TO INDIGENTS
3.112. MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES
3.115. DUTIES OF STATE ATTORNEY; CRIMINAL INTAKE
III. PRELIMINARY PROCEEDINGS
3.120. COMMITTING JUDGE
3.121. ARREST WARRANT
3.125. NOTICE TO APPEAR
3.130. FIRST APPEARANCE
3.131. PRETRIAL RELEASE
3.132. PRETRIAL DETENTION
3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY
PRELIMINARY HEARINGS
3.134. TIME FOR FILING FORMAL CHARGES
3.140. INDICTMENTS; INFORMATIONS
3.150. JOINDER OF OFFENSES AND DEFENDANTS
3.151. CONSOLIDATION OF RELATED OFFENSES
3.152. SEVERANCE OF OFFENSES AND DEFENDANTS
3.153. TIMELINESS OF DEFENDANT’S MOTION; WAIVER
IV. ARRAIGNMENT AND PLEAS
3.160. ARRAIGNMENT
3.170. PLEAS
3.171. PLEA DISCUSSIONS AND AGREEMENTS
3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA
3.180. PRESENCE OF DEFENDANT
V. PRETRIAL MOTIONS AND DEFENSES
3.190. PRETRIAL MOTIONS
3.191. SPEEDY TRIAL
3.200. NOTICE OF ALIBI
3.201. [BATTERED-SPOUSE SYNDROME DEFENSE]
3.202. EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF CAPITAL
TRIAL: NOTICE AND EXAMINATION BY STATE EXPERT
3.203. DEFENDANT’S MENTAL RETARDATION AS A BAR TO IMPOSITION OF THE DEATH
PENALTY
3.210. INCOMPETENCE TO PROCEED: PROCEDURE FOR RAISING THE ISSUE
3.211. COMPETENCE TO PROCEED: SCOPE OF EXAMINATION AND REPORT
3.212. COMPETENCE TO PROCEED: HEARING AND DISPOSITION
3.213. CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO PROCEED
WITH SENTENCING: DISPOSITION
3.214. INCOMPETENCY TO PROCEED TO SENTENCING: DISPOSITION
3.215. EFFECT OF ADJUDICATION OF INCOMPETENCY TO PROCEED:
PSYCHOTROPIC MEDICATION
3.216. INSANITY AT TIME OF OFFENSE OR PROBATION OR COMMUNITY CONTROL
VIOLATION: NOTICE AND APPOINTMENT OF EXPERTS
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
VI. DISCOVERY
3.220. DISCOVERY
VII. DISQUALIFICATION AND
SUBSTITUTION OF JUDGE
3.231. SUBSTITUTION OF JUDGE
VIII. CHANGE OF VENUE
3.240. CHANGE OF VENUE
IX. THE TRIAL
3.250. ACCUSED AS WITNESS
3.251. RIGHT TO TRIAL BY JURY
3.260. WAIVER OF JURY TRIAL
3.270. NUMBER OF JURORS
3.280. ALTERNATE JURORS
3.281. LIST OF PROSPECTIVE JURORS
3.290. CHALLENGE TO PANEL
3.300. VOIR DIRE EXAMINATION, OATH, AND EXCUSING OF MEMBER
3.310. TIME FOR CHALLENGE
3.315. EXERCISE OF CHALLENGES
3.320. MANNER OF CHALLENGE
3.330. DETERMINATION OF CHALLENGE FOR CAUSE
3.340. EFFECT OF SUSTAINING CHALLENGE
3.350. PEREMPTORY CHALLENGES
3.360. OATH OF TRIAL JURORS
3.361. WITNESS ATTENDANCE AND SUBPOENAS
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS
3.370. REGULATION AND SEPARATION OF JURORS
3.371 JUROR QUESTIONS OF WITNESSES
3.372 JUROR NOTEBOOKS
3.380. MOTION FOR JUDGMENT OF ACQUITTAL
3.381. FINAL ARGUMENTS
3.390. JURY INSTRUCTIONS
3.391. SELECTION OF FOREPERSON OF JURY
3.400. MATERIALS TO THE JURY ROOM
3.410. JURY REQUEST TO REVIEW EVIDENCE OR FOR ADDITIONAL INSTRUCTIONS
3.420. RECALL OF JURY FOR ADDITIONAL INSTRUCTIONS
3.430. JURY NOT RECALLABLE TO HEAR ADDITIONAL EVIDENCE
XI. THE VERDICT
3.440. RENDITION OF VERDICT; RECEPTION AND RECORDING
3.450. POLLING THE JURY
3.451. JUDICIAL COMMENT ON VERDICT
3.470. PROCEEDINGS ON SEALED VERDICT
3.490. DETERMINATION OF DEGREE OF OFFENSE
3.500. VERDICT OF GUILTY WHERE MORE THAN ONE COUNT
3.505. INCONSISTENT VERDICTS
3.510. DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES
3.520. VERDICT IN CASE OF JOINT DEFENDANTS
3.530. RECONSIDERATION OF AMBIGUOUS OR DEFECTIVE VERDICT
3.540. WHEN VERDICT MAY BE RENDERED
3.550. DISPOSITION OF DEFENDANT
3.560. DISCHARGE OF JURORS
3.570. IRREGULARITY IN RENDITION, RECEPTION, AND RECORDING OF VERDICT
3.575. MOTION TO INTERVIEW JUROR
XII. POST-TRIAL MOTIONS
3.580. COURT MAY GRANT NEW TRIAL
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
3.620. WHEN EVIDENCE SUSTAINS ONLY CONVICTION OF LESSER OFFENSE
3.630. SENTENCE BEFORE OR AFTER MOTION FILED
3.640. EFFECT OF GRANTING NEW TRIAL
XIII. JUDGMENT
3.650. JUDGMENT DEFINED
3.670. RENDITION OF JUDGMENT
3.680. JUDGMENT ON INFORMAL VERDICT
3.690. JUDGMENT OF NOT GUILTY; DEFENDANT DISCHARGED AND SURETIES EXONERATED
3.691. POST-TRIAL RELEASE
3.692. PETITION TO SEAL OR EXPUNGE
XIV. SENTENCE
3.700. SENTENCE DEFINED; PRONOUNCEMENT AND ENTRY; SENTENCING JUDGE
3.701. SENTENCING GUIDELINES
3.702. SENTENCING GUIDELINES (1994)
3.703. SENTENCING GUIDELINES (1994 as amended)
3.704. THE CRIMINAL PUNISHMENT CODE
3.710. PRESENTENCE REPORT
3.711. PRESENTENCE REPORT: WHEN PREPARED
3.712. PRESENTENCE REPORT: DISCLOSURE
3.713. PRESENTENCE INVESTIGATION DISCLOSURE: PARTIES
3.720. SENTENCING HEARING
3.721. RECORD OF THE PROCEEDINGS
3.730. ISSUANCE OF CAPIAS WHEN NECESSARY TO BRING DEFENDANT BEFORE COURT
3.750. PROCEDURE WHEN PARDON IS ALLEGED AS CAUSE FOR NOT
PRONOUNCING SENTENCE
3.760. PROCEDURE WHEN NONIDENTITY IS ALLEGED AS CAUSE FOR NOT
PRONOUNCING SENTENCE
3.770. PROCEDURE WHEN PREGNANCY IS ALLEGED AS CAUSE FOR NOT
PRONOUNCING DEATH SENTENCE
3.780. SENTENCING HEARING FOR CAPITAL CASES
3.790. PROBATION AND COMMUNITY CONTROL
3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES
XV. EXECUTION OF SENTENCE
3.810. COMMITMENT OF DEFENDANT; DUTY OF SHERIFF
3.811. INSANITY AT TIME OF EXECUTION: CAPITAL CASES
3.812. HEARING ON INSANITY AT TIME OF EXECUTION: CAPITAL CASES
3.820. HABEAS CORPUS
XVI. CRIMINAL CONTEMPT
3.830. DIRECT CRIMINAL CONTEMPT
3.840. INDIRECT CRIMINAL CONTEMPT
XVII. POSTCONVICTION RELIEF
3.850. MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE HAS BEEN IMPOSED AND AFFIRMED
ON DIRECT APPEAL
3.852 CAPITAL POSTCONVICTION PUBLIC RECORDS PRODUCTION
3.853 MOTION FOR POSTCONVICTION DNA TESTING
XVIII. FORMS
3.984. APPLICATION FOR CRIMINAL INDIGENT STATUS
3.985. STANDARD JURY INSTRUCTIONS
3.9855 JUROR VOIR DIRE QUESTIONAIRE
3.986. FORMS RELATED TO JUDGMENT AND SENTENCE
3.987. MOTION FOR POSTCONVICTION RELIEF
3.988. SENTENCING GUIDELINES
3.989. AFFIDAVIT, PETITION, AND ORDER TO EXPUNGE OR SEAL FORMS
3.990(a). SENTENCING GUIDELINES SCORESHEET
3.990(b). SUPPLEMENTAL SENTENCING GUIDELINES SCORESHEET
3.991(a). SENTENCING GUIDELINES SCORESHEET (OCTOBER 1, 1995)
3.991(b). SUPPLEMENTAL SENTENCING GUIDELINES SCORESHEET (OCTOBER 1, 1995)
3.992(a). CRIMINAL PUNISHMENT CODE SCORESHEET
3.992(b). SUPPLEMENTAL CRIMINAL PUNISHMENT CODE SCORESHEET
3.993. FORMS RELATED TO CAPITAL POSTCONVICTION RECORDS PRODUCTION
3.994. ORDER CERTIFYING NO INCARCERATION
3.995. ORDER OF REVOCATION OF PROBATION/COMMUNITY CO

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