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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