Criminal Procedure

RULE 3.200. NOTICE OF ALIBI
On the written demand of the prosecuting attorney, specifying as particularly as is known to the prosecuting
attorney the place, date, and time of the commission of the crime charged, a defendant in a criminal case who intends
to offer evidence of an alibi in defense shall, not less than 10 days before trial or such other time as the court may
direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice
shall contain specific information as to the place at which the defendant claims to have been at the time of the
alleged offense and, as particularly as is known to the defendant or the defendant’s attorney, the names and
addresses of the witnesses by whom the defendant proposes to establish the alibi. Not more than 5 days after receipt
of defendant’s witness list, or any other time as the court may direct, the prosecuting attorney shall file and serve on
the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the
state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause. Both the defendant and
the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of
additional witnesses who come to the attention of either party subsequent to filing their respective witness lists as
provided in this rule. If a defendant fails to file and serve a copy of the notice as herein required, the court may
exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant’s own
testimony. If the notice is given by a defendant, the court may exclude the testimony of any witness offered by the
defendant for the purpose of proving an alibi if the name and address of the witness as particularly as is known to the
defendant or the defendant’s attorney is not stated in the notice. If the prosecuting attorney fails to file and serve a
copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state
in rebuttal to the defendant’s alibi evidence. If notice is given by the prosecuting attorney, the court may exclude the
testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the
name and address of the witness as particularly as is known to the prosecuting attorney is not stated in the notice.
For good cause shown the court may waive the requirements of this rule.
Committee Notes
1968 Adoption. The rule is completely new in Florida. Fourteen states have adopted notice of alibi statutes or rules: Arizona Supreme Court Rules
of Criminal Procedure 192 (enacted in 1940); Ind.Ann.Stat. 9-1631, 9-1632, 9-1633 (1956) (enacted in 1935); Iowa Code Ann. 777 18 (1958) (enacted
in 1941); Kan.Gen.Stat. Ann. 62-1341 (1949) (enacted in 1935); Mich.Stat.Ann. 630.14 (1947) (enacted in 1935); N.J. Superior and County Court
Criminal Practice Rule 3:5-9 (1948) (enacted in 1934); N.Y. Code of Crim. Proc. 295-L (1935) (enacted in 1935); Ohio Rev. Code Ann. 2945.58
(1953) (enacted in 1929); Okla.Stat.Ann. 22-585 (1937) (enacted in 1935); S.D. Code 34.2801 (1939) (enacted in 1935); Utah Code Ann. 77-22-17
(1953) (enacted in 1935); Vt.Stat.Ann. 13-6561, 6562 (1958) (enacted in 1935); Wis.Stat.Ann. 955.07 (1958) (enacted in 1935).
The rule is modeled after the Ohio, New York, and New Jersey statutes:
(1) The requirement of notice in writing is taken from the Ohio statute.
(2) The requirement of an initial demand by the prosecuting attorney is based on the New York and New Jersey statutes.
(3) The requirement of a mutual exchange of witness lists is based on those statutes which require the defendant to disclose alibi witnesses. In
the interest of mutuality, the requirement of a reciprocal exchange of witness lists has been added. The enforcement provision is based on the
Ohio and New York statutes. In New York, a defendant who fails to give advance notice of alibi may still give alibi testimony himself. People v.
Rakiec, 23 N.Y.S.2d 607, aff’d 45 N.E.2d 812 (1942).
For an excellent article on notice of alibi statutes, court decisions thereunder, and some empirical data on the practical effect of the rules, see
David M. Epstein, “Advance Notice of Alibi,” 55 J. Crim. L. & Criminology 29 (1964).
1972 Amendment. Same as prior rule.
1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule.
RULE 3.201. [BATTERED-SPOUSE SYNDROME DEFENSE]
(a) [Notice of] Battered-Spouse Syndrome [Defense]. When in any criminal case it shall be intention of the
defendant to rely on the defense of battered-spouse syndrome at trial, no evidence offered by the defendant for the
purpose of establishing that defense shall be admitted in the case unless advance notice in writing of the defense shall
have been given by the defendant as hereinafter provided.
(b) Time for Filing Notice. The defendant shall give notice of intent to rely on the defense of battered-spouse
syndrome no later than 30 days prior to trial. The notice shall contain a statement of particulars showing the nature of
the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant
expects to show battered-spouse syndrome, insofar as possible.
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF
CAPITAL TRIAL: NOTICE AND EXAMINATION BY STATE EXPERT
(a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which
the state gives written notice of its intent to seek the death penalty within 45 days from the date of arraignment.
Failure to give timely written notice under this subdivision does not preclude the state from seeking the death
penalty.
(b) Notice of Intent to Present Expert Testimony of Mental Mitigation. When in any capital case, in which the
state has given notice of intent to seek the death penalty under subdivision (a) of this rule, it shall be the intention of
the defendant to present, during the penalty phase of the trial, expert testimony of a mental health professional, who
has tested, evaluated, or examined the defendant, in order to establish statutory or nonstatutory mental mitigating
circumstances, the defendant shall give written notice of intent to present such testimony.
(c) Time for Filing Notice; Contents. The defendant shall give notice of intent to present expert testimony of
mental mitigation not less than 20 days before trial. The notice shall contain a statement of particulars listing the
statutory and nonstatutory mental mitigating circumstances the defendant expects to establish through expert testimony
and the names and addresses of the mental health experts by whom the defendant expects to establish mental
mitigation, insofar as is possible.
(d) Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the
state indicating its desire to seek the death penalty, the court shall order that, within 48 hours after the defendant is
convicted of capital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for
the state and defendant may be present at the examination. The examination shall be limited to those mitigating
circumstances the defendant expects to establish through expert testimony.
(e) Defendant’s Refusal to Cooperate. If the defendant refuses to be examined by or fully cooperate with the
state’s mental health expert, the court may, in its discretion:
(1) order the defense to allow the state’s expert to review all mental health reports, tests, and evaluations by the
defendant’s mental health expert; or
(2) prohibit defense mental health experts from testifying concerning mental health tests, evaluations, or
examinations of the defendant.
RULE 3.203. DEFENDANT’S MENTAL RETARDATION AS A BAR TO IMPOSITION OF THE
DEATH PENALTY
(a) Scope. This rule applies in all first-degree murder cases in which the state attorney has not waived the death
penalty on the record and the defendant’s mental retardation becomes an issue.
(b) Definition of Mental Retardation. As used in this rule, the term “mental retardation” means significantly
subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested
during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,”
for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a
standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of
the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness
or degree with which an individual meets the standards of personal independence and social responsibility expected
of his or her age, cultural group, and community.
(c) Motion for Determination of Mental Retardation as a Bar to Execution: Contents; Procedures.
(1) A defendant who intends to raise mental retardation as a bar to execution shall file a written motion to
establish mental retardation as a bar to execution with the court.
(2) The motion shall state that the defendant is mentally retarded and, if the defendant has been tested,
evaluated, or examined by one or more experts, the names and addresses of the experts. Copies of reports containing
the opinions of any experts named in the motion shall be attached to the motion. The court shall appoint an expert
chosen by the state attorney if the state attorney so requests. The expert shall promptly test, evaluate, or examine the
defendant and shall submit a written report of any findings to the parties and the court.
(3) If the defendant has not been tested, evaluated, or examined by one or more experts, the motion shall state
that fact and the court shall appoint two experts who shall promptly test, evaluate, or examine the defendant and
shall submit a written report of any findings to the parties and the court.
(4) Attorneys for the state and defendant may be present at the examinations conducted by court-appointed
experts.
(5) If the defendant refuses to be examined or fully cooperate with the court appointed experts or the state’s expert,
the court may, in the court’s discretion:
(A) order the defense to allow the court-appointed experts to review all mental health reports, tests, and
evaluations by the defendant’s expert;
(B) prohibit the defense experts from testifying concerning any tests, evaluations, or examinations of the
defendant regarding the defendant’s mental retardation; or
(C) order such relief as the court determines to be appropriate.
(d) Time for filing Motion for Determination of Mental Retardation as a Bar to Execution.
(1) Cases in which trial has not commenced. In all cases in which trial has not commenced on October 1,
2004, the motion for a determination of mental retardation as a bar to execution shall be filed not later than 90 days
prior to trial, or if the trial is set earlier than 90 days from October 1, 2004, at such time as is ordered by the court.
(2) Cases in which trial has commenced on October 1, 2004. In all cases in which trial has commenced on
October 1, 2004, the motion shall be filed and determined before a sentence is imposed.
(3) Cases in which a direct appeal is pending. If an appeal of a circuit court order imposing a judgment of
conviction and sentence of death is pending on October 1, 2004, the defendant may file a motion to relinquish
jurisdiction for a mental retardation determination within 60 days of October 1, 2004. The motion shall contain a
copy of the motion to establish mental retardation as a bar to execution and shall contain a certificate by appellate
counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally
retarded.
(4) Cases in which the direct appeal is final; contents of motion; conformity with Florida Rule of
Criminal Procedure 3.851.
(A) A motion for postconviction relief seeking a determination of mental retardation made by counsel for the
prisoner shall contain a certification by counsel that the motion is made in good faith and on reasonable grounds to
believe that the prisoner is mentally retarded.
(B) If a death sentenced prisoner has not filed a motion for postconviction relief on or before October 1, 2004,
the prisoner shall raise a claim under this rule in an initial rule 3.851 motion for postconviction relief.
(C) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has not been
ruled on by the circuit court on or before October 1, 2004, the prisoner may amend the motion to include a claim
under this rule within 60 days after October 1, 2004.
(D) If a death-sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on
by the circuit court but the prisoner has not filed an appeal on or before October 1, 2004, the prisoner shall file a
supplemental motion in the circuit court raising the mental retardation claim. The prisoner’s time for filing an appeal
of the ruled-upon postconviction motion is stayed until the circuit court rules upon the mental retardation claim.
(E) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on by
the circuit court and an appeal is pending on or before October 1, 2004, the prisoner may file a motion in the supreme
court to relinquish jurisdiction to the circuit court for a determination of mental retardation within 60 days from October
1, 2004. The motion to relinquish jurisdiction shall contain a copy of the motion to establish mental retardation as a bar
to execution, which shall be raised as a successive rule 3.851 motion, and shall contain a certificate by appellate counsel
that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally retarded.
(F) If a death sentenced prisoner has filed a motion for postconviction relief, the motion has been ruled on by
the circuit court, and that ruling is final on or before October 1, 2004, the prisoner may raise a claim under this rule
in a successive rule 3.851 motion filed within 60 days after October 1, 2004. The circuit court may reduce this time
period and expedite the proceedings if the circuit court determines that such action is necessary.
(e) Hearing on Motion to Determine Mental Retardation. The circuit court shall conduct an evidentiary
hearing on the motion for a determination of mental retardation. At the hearing, the court shall consider the findings
of the experts and all other evidence on the issue of whether the defendant is mentally retarded. The court shall enter
a written order prohibiting the imposition of the death penalty and setting forth the court’s specific findings in
support of the court’s determination if the court finds that the defendant is mentally retarded as defined in
subdivision (b) of this rule. The court shall stay the proceedings for 30 days from the date of rendition of the order
prohibiting the death penalty or, if a motion for rehearing is filed, for 30 days following the rendition of the order
denying rehearing, to allow the state the opportunity to appeal the order. If the court determines that the defendant
has not established mental retardation, the court shall enter a written order setting forth the court’s specific findings
in support of the court’s determination.
(f) Waiver. A claim authorized under this rule is waived if not filed in accord with the time requirements for
filing set out in this rule, unless good cause is shown for the failure to comply with the time requirements.
(g) Finding of Mental Retardation; Order to Proceed. If, after the evidence presented, the court is of the
opinion that the defendant is mentally retarded, the court shall order the case to proceed without the death penalty as
an issue.
(h) Appeal. An appeal may be taken by the state if the court enters an order finding that the defendant is mentally
retarded, which will stay further proceedings in the trial court until a decision on appeal is rendered. Appeals are to
proceed according to Florida Rule of Appellate Procedure 9.140(c).
(i) Motion to Establish Mental Retardation as a Bar to Execution; Stay of Execution. The filing of a motion
to establish mental retardation as a bar to execution shall not stay further proceedings without a separate order
staying execution.
RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE FOR RAISING THE ISSUE
(a) Proceedings Barred during Incompetency. A person accused of an offense or a violation of probation or
community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not
be proceeded against while incompetent.
(1) A “material stage of a criminal proceeding” shall include the trial of the case, pretrial hearings involving
questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or
violation of community control proceedings, sentencing, hearings on issues regarding a defendant’s failure to
comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary
for a just resolution of the issues being considered. The terms “competent,” “competence,” “incompetent,” and
“incompetence,” as used in rules 3.210–3.219, shall refer to mental competence or incompetence to proceed at a
material stage of a criminal proceeding.
(2) The incompetence of the defendant shall not preclude such judicial action, hearings on motions of the
parties, discovery proceedings, or other procedures that do not require the personal participation of the defendant.
(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on
motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not
mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine
the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion,
and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the
hearing. Attorneys for the state and the defendant may be present at the examination.
(1) A written motion for the examination made by counsel for the defendant shall contain a certificate of
counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is incompetent
to proceed. To the extent that it does not invade the lawyer-client privilege, the motion shall contain a recital of the
specific observations of and conversations with the defendant that have formed the basis for the motion.
(2) A written motion for the examination made by counsel for the state shall contain a certificate of counsel that
the motion is made in good faith and on reasonable grounds to believe the defendant is incompetent to proceed and
shall include a recital of the specific facts that have formed the basis for the motion, including a recitation of the
observations of and statements of the defendant that have caused the state to file the motion.
(3) If the defendant has been released on bail or other release provision, the court may order the defendant to
appear at a designated place for evaluation at a specific time as a condition of such release. If the court determines
that the defendant will not submit to the evaluation or that the defendant is not likely to appear for the scheduled
evaluation, the court may order the defendant taken into custody until the determination of the defendant’s competency
to proceed. A motion made for evaluation under this subdivision shall not otherwise affect the defendant’s
right to release.
(4) The order appointing experts shall:
(A) identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and
specify the area or areas of inquiry that should be addressed by the evaluator;
(B) specify the legal criteria to be applied; and
(C) specify the date by which the report should be submitted and to whom the report should be submitted.
Committee Notes
1968 Adoption. (a) Same as section 917.01, Florida Statutes, except it was felt that court cannot by rule direct institution officials. Thus words,
“he shall report this fact to the court which conducted the hearing. If the officer so reports” and concluding sentence, “No defendant committed
by a court to an institution, by reason of the examination referred to in this paragraph, shall be released therefrom, without the consent of the
court committing him,” should be omitted from the rule but retained by statute.
(b) Same as section 909.17, Florida Statutes.
(c) Same as section 917.02, Florida Statutes.
1972 Amendment. Subdivision (a)(3) refers to Jackson v. Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); also, United
States v. Curry, 410 F.2d 1372 (4th Cir. 1969). Subdivision (d) is added to give the court authority to confine an insane person who is likely to
cause harm to others even if the person is otherwise entitled to bail. The amendment does not apply unless the defendant contends that he or she is
insane at the time of trial or at the time the offense was committed. The purpose of the amendment is to prevent admittedly insane persons from
being at large when there is a likelihood they may injure themselves or others.
1977 Amendment. This language is taken, almost verbatim, from existing rule 3.210(a). The word “insane” is changed to reflect the new
terminology, “competence to stand trial.” The definition of competence to stand trial is taken verbatim from the United States Supreme Court
formulation of the test in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
(a)(2) The first part of this paragraph is taken, almost verbatim, from the existing rule. The right of counsel for the state to move for such
examination has been added.
(b)(1) In order to confine the defendant as incompetent to stand trial, the defendant must be confined under the same standards as those used
for civil commitment. These criteria were set forth in the recent U.S. Supreme Court case of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32
L.Ed.2d 435 (1972), in which it was held to be a denial of equal protection to subject a criminal defendant to a more lenient commitment standard
than would be applied to one not charged with a crime. Therefore, the criteria for involuntary civil commitment should be incorporated as the
criteria for commitment for incompetence to stand trial.
In this subdivision is found the most difficult of the problems to resolve for the rule. The head-on conflict between the Department of Health
and Rehabilitative Services, a part of the executive branch of the government, and the courts occurs when the administrator determines that a
defendant no longer should be confined, but the trial judge does not wish the defendant released because the trial judge feels that further
commitment is necessary. Under the civil commitment model, the administrator has the power to release a committed patient at such time as the
administrator feels the patient no longer meets the standards for commitment. Obviously, since a defendant in a criminal case is under the
jurisdiction of the court, such immediate release is unwarranted.
The time period of the initial commitment parallels that of civil commitment.
(b)(2) treats the problem of what the court should do with a defendant who is not competent to stand trial, but who fails to meet the criteria for
commitment. If incompetent, but not in need of treatment and not dangerous, then the defendant cannot be committed. The present rule provides
for dismissal of the charges immediately. There appears to be no reason why someone in this situation should not be released pending trial on
bail, as would other defendants.
The finding of “not guilty by reason of insanity,” required under the present rule when a defendant cannot be tried by reason of incompetence,
seems inappropriate since such a defense admits the commission of the fact of the crime but denies the defendant’s mental state. Since no such
finding has been made (and cannot be made), the verdict entered of not guilty by reason of insanity is not appropriate. Further, it would give a
defendant, later competent, a res judicata or double jeopardy defense, the verdict being a final determination of guilt or innocence. It would seem
far more appropriate to withdraw the charges. A defendant who regains competence within the period of the statute of limitations could still be
tried for the offense, if such trial is warranted.
One of the major problems confronting the institution in which an incompetent person is being held is that of obtaining consent for medical
procedures and treatment, not necessarily mental treatment. Generally, under the statute, the patient civilly committed is not thereby deemed
incompetent to consent. At the commitment hearing in the civil proceedings, the judge may make the general competency determination. It is
recommended that the same process apply in the hearing on competency to stand trial, and that, if the trial judge does not find the defendant
incompetent for other purposes, the defendant be legally considered competent for such other purposes.
1980 Amendment.
(a) This provision is identical to that which has been contained in all prior rules and statutes relating to competence to stand trial. No change
is suggested.
(b) In order to ensure that the proceedings move quickly the court is required to set a hearing within 20 days. This subdivision should be read
in conjunction with rule 3.211 which requires the experts to submit their report to the court at such time as the court shall specify. The court
therefore determines the time on which the report is to be submitted. The provision requiring at least 2 but no more than 3 experts is meant to
coincide with section 394.02, Florida Statutes (1979), in which the legislature provides for the number of experts to be appointed and that at least
1 of such experts be appointed from a group of certain designated state-related professionals. This legislative restriction on appointment will
ensure that the Department of Health and Rehabilitative Services will, to some extent, be involved in the hospitalization decision-making process.
Other possible procedures were discussed at great length both among members of the committee and with representatives of the legislature, but it
was decided that any more specific procedures should be developed on the local level in the individual circuits and that it would be
inappropriate to mandatesuch specific procedures in a statewide court rule. Since it was felt by the committee to be a critical stage in the
proceedings and subject to Sixth Amendment provisions, and since no psychiatrist-patient privilege applies to this stage of the proceeding, the
committee felt that attorneys for both sides should have the right to be present at such examinations.
(1) and (2) A motion for examination relative to competency to stand trial should not be a “boiler plate” motion filed in every case. The
inclusion of specific facts in the motion will give the trial judge a basis on which to determine whether there is sufficient indication of
incompetence to stand trial that experts should be appointed to examine the defendant. Provision was made that conversations and observations
need not be disclosed if they were felt to violate the lawyer-client privilege. Observations of the defendant were included in this phrase in that
these may, in some cases, be considered “verbal acts.”
(3) The mere filing of a motion for examination to determine competence to stand trial should not affect in any way the provision for
release of a defendant on bail or other pretrial release provision. If a defendant has been released on bail, the judgment already having been made
that he or she is so entitled, and as long as the defendant will continue to appear for appropriate evaluations, the mere fact that the motion was
filed should not abrogate the right to bail. Obviously, if other factors would affect the defendant’s right to release or would affect the right to
release on specific release conditions, those conditions could be changed or the release revoked. By making the requirement that the defendant
appear for evaluation a condition of release, the court can more easily take back into custody a defendant who has refused to appear for
evaluation, and the defendant can then be evaluated in custody.
1988 Amendment. Title. The title is amended to reflect change in subdivision (a)(1), which broadens the issue of competency in criminal
proceedings from the narrow issue of competency to stand trial to competency to proceed at any material stage of a criminal proceeding.
(a) This provision is broadened to prohibit proceeding against a defendant accused of a criminal offense or a violation of probation or
community control and is broadened from competency to stand trial to competency to proceed at any material stage of a criminal proceeding as
defined in subdivision (1).
(1) This new provision defines a material stage of a criminal proceeding when an incompetent defendant may not be proceeded against. This
provision includes competence to be sentenced, which was previously addressed in rule 3.740 and is now addressed with more specificity in the new
rule 3.214. Under the Florida Supreme Court decision of Jackson v. State, 452 So.2d 533 (Fla. 1984), this definition would not apply to a motion
under rule 3.850.
(2) This new provision allows certain matters in a criminal case to proceed, even if a defendant is determined to be incompetent, in areas
not requiring the personal participation of the defendant.
(b) This provision is amended to reflect the changes in subdivision (a) above.
(1) Same as above.
(2) Same as above.
(3) Same as above. This provision also changes the phrase “released from custody on a pre-trial release provision” to “released on bail or
other release provision” because the term “custody” is subject to several interpretations.
(4) This new provision is designed to specify and clarify in the order appointing experts, the matters the appointed experts are to address, and to
specify when and to whom their reports are to be submitted. Court-appointed experts often do not understand the specific purpose of their examination
or the specifics of the legal criteria to be applied. Specifying to whom the experts’ reports are to be submitted is designed to avoid confusion.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. In 1985, the Florida Legislature enacted amendments to part I of chapter
394, the “Florida Mental Health Act,” and substantial amendments to chapter 916 entitled “Mentally Deficient and Mentally Ill Defendants.” The effect
of the amendments is to avoid tying mentally ill or deficient defendants in the criminal justice system to civil commitment procedures in the “Baker
Act.” Reference to commitment of a criminal defendant found not guilty by reason of insanity has been removed from section 394.467, Florida
Statutes. Chapter 916 now provides for specific commitment criteria of mentally ill or mentally retarded criminal defendants who are either incompetent
to proceed or who have been found not guilty by reason of insanity in criminal proceedings.
In part, the following amendments to rules 3.210 to 3.219 are designed to reflect the 1985 amendments to chapters 394 and 916.
Florida judges on the criminal bench are committing and the Department of Health and Rehabilitative Services (HRS) mental health treatment
facilities are admitting and treating those mentally ill and mentally retarded defendants in the criminal justice system who have been adjudged
incompetent to stand trial and defendants found to be incompetent to proceed with violation of probation and community control proceedings.
Judges are also finding such defendants not guilty by reason of insanity and committing them to HRS for treatment, yet there were no provisions
for such commitments in the rules.
Some of the amendments to rules 3.210 to 3.219 are designed to provide for determinations of whether a defendant is mentally competent to
proceed in any material stage of a criminal proceeding and provide for community treatment or commitment to HRS when a defendant meets
commitment criteria under the provisions of chapter 916 as amended in 1985.
RULE 3.211. COMPETENCE TO PROCEED: SCOPE OF EXAMINATION AND REPORT
(a) Examination by Experts. Upon appointment by the court, the experts shall examine the defendant with
respect to the issue of competence to proceed, as specified by the court in its order appointing the experts to evaluate
the defendant, and shall evaluate the defendant as ordered.
(1) The experts shall first consider factors related to the issue of whether the defendant meets the criteria for
competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a
reasonable degree of rational understanding and whether the defendant has a rational, as well as factual,
understanding of the pending proceedings.
(2) In considering the issue of competence to proceed, the examining experts shall consider and include in their
report:
(A) the defendant’s capacity to:
(i) appreciate the charges or allegations against the defendant;
(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the
proceedings against the defendant;
(iii) understand the adversary nature of the legal process;
(iv) disclose to counsel facts pertinent to the proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the experts.
(b) Factors to Be Evaluated. If the experts should find that the defendant is incompetent to proceed, the experts
shall report on any recommended treatment for the defendant to attain competence to proceed. In considering the
issues relating to treatment, the examining experts shall report on:
(1) the mental illness or mental retardation causing the incompetence;
(2) the treatment or treatments appropriate for the mental illness or mental retardation of the defendant and an
explanation of each of the possible treatment alternatives in order of choices;
(3) the availability of acceptable treatment. If treatment is available in the community, the expert shall so state
in the report; and
(4) the likelihood of the defendant attaining competence under the treatment recommended, an assessment of
the probable duration of the treatment required to restore competence, and the probability that the defendant will
attain competence to proceed in the foreseeable future.
(c) Insanity. If a notice of intent to rely on the defense of insanity has been filed prior to trial or a hearing on a
violation of probation or community control, and when so ordered by the court, the experts shall report on the issue
of the defendant’s sanity at the time of the offense.
(d) Written Findings of Experts. Any written report submitted by the experts shall:
(1) identify the specific matters referred for evaluation;
(2) describe the evaluative procedures, techniques, and tests used in the examination and the purpose or
purposes for each;
(3) state the expert’s clinical observations, findings, and opinions on each issue referred for evaluation by the
court, and indicate specifically those issues, if any, on which the expert could not give an opinion; and
(4) identify the sources of information used by the expert and present the factual basis for the expert’s clinical
findings and opinions.
(e) Limited Use of Competency Evidence.
(1) The information contained in any motion by the defendant for determination of competency to proceed or in
any report of experts filed under this rule insofar as the report relates solely to the issues of competency to proceed
and commitment, and any information elicited during a hearing on competency to proceed or commitment held pursuant
to this rule, shall be used only in determining the mental competency to proceed or the commitment or other
treatment of the defendant.
(2) The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other
purpose, in which case disclosure and use of the report, or any portion thereof, shall be governed by applicable rules
of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the state may request the
production of any other portion of that report that, in fairness, ought to be considered.
Committee Notes
1980 Adoption. This rule provides for appointment of experts and for the contents of the report which the experts are to render. Since the issue
of competency has been raised, the experts will, of course, report on this issue. If there is reason to believe that involuntary hospitalization is also
required, the court should order the experts to make this evaluation as well during their initial examination. It was felt, however, that the experts
should not inquire into involuntary hospitalization as a matter of course, but only if sufficient reasonable grounds to do so were alleged in the
motion, comparing the procedure to that required by the civil commitment process.
(a) Certain factors relating to competency to stand trial have been determined to be appropriate for analysis by examining experts. Often, with
different experts involved, the experts do not use the same criteria in reaching their conclusions. The criteria used by experts who testify at the
competency and commitment hearings may not be the same as those used by persons involved in the treatment process or later hearings after
treatment. This subdivision, therefore, addresses those factors which, at least, should be considered by experts at both ends of the spectrum.
Additional factors may be considered, and these factors listed may be addressed in different ways. At least the requirement that these specific
factors be addressed will give a common basis of understanding for the experts at the competency hearing, the trial judge, and the experts who
will later receive a defendant who is found to be incompetent to stand trial and in need of involuntary hospitalization. The test for determining
competency to stand trial is that which has been contained in both the prior rules and statutes developed from Dusky v. United States, 362 U.S.
402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
(1) The factors set forth in this section have been developed by the Department of Health and Rehabilitative Services (HRS) in its
Competency Evaluation Instrument, a refinement of the McGarry Competency Evaluation Procedure.
(b) The issue of involuntary hospitalization is to be considered only if the court has ordered the experts to consider this issue; the court would
do so if it found that there existed reasonable grounds to believe that the defendant met the criteria for involuntary hospitalization. The factors set
forth in order to determine this issue are those that have been developed through prior statutes relating to involuntary hospitalization, from the
case of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), and In Re: Beverly, 342 So.2d 481 (Fla. 1977).
As to criteria for involuntary hospitalization, see chapter 394, Florida Statutes, or, in the case of mental retardation, see chapter 393, Florida
Statutes.
Section 394.467(1), Florida Statutes (1979), prescribes criteria for involuntary hospitalization or placement. In case of mental retardation,
section 393.11, Florida Statutes (1979), governs.
(c) In most instances, the issues of incompetency at time of trial and insanity at time of the offense will be raised at the same time or, at least, in the
same case. In the event that the 2 are not raised in the same case, there would be no reason for the examining experts to inquire into the mental status of
the defendant at the time of the offense itself at the incompetency examination. However, if insanity as a defense is raised, it would be most appropriate
for judicial efficiency to have the examining experts inquire into all issues at the same time. This provision permits such inquiry by the experts in the
event that notice of intent to rely on the defense of insanity has been filed by the defendant.
(d) This provision is meant to permit local circuits to develop their own forms for such reports if they feel that such forms are appropriate. It
does not preclude HRS from suggesting a form that would be of particular assistance to them and requesting its adoption, but adoption is not
mandated.
(e) This subdivision provides for the confidentiality of the information obtained by virtue of an examination of the defendant pursuant to this
subdivision. Cf. §90.108, Fla.Stat. (1979); Fla.R.Civ.P. 1.330(6).
Section 916.12, Florida Statutes is a companion statute relating to mental competence to stand trial.
1988 Amendment. Title. The title is amended to reflect changes in rule 3.210.
(a) This subdivision, which was originally an introductory paragraph, is amended to reflect changes in rule 3.210. The deletions related to the
extent of the evaluation and when and to whom the experts’ reports are to be submitted have been placed in rule 3.210(4) above.
(1) This subdivision, which was formerly subdivision (a), has been amended to reflect changes in rule 3.210 above.
(2) This provision has been amended to reflect the changes to rule 3.210. In addition, the 11 factors previously numbered (i) through (xi)
have been reduced to 6 factors. Numbers (v), (vi), (vii), (x), and (xi) have been removed. Those 5 factors were felt to not be directly related to the
issue of a defendant having the mental capacity to communicate with his or her attorney or to understand the proceedings against him or her and
may have had the effect of confusing the issues the experts are to address in assessing a defendant’s competency to proceed. The terms “ability”
and “capacity” which were used interchangeably in the prior version of this provision have been changed to the single term “capacity” for
continuity. A provision has been added which allows the appointed expert to also include any other factors deemed relevant to take into account
different techniques and points of view of the experts.
(b) This subdivision, including its 4 subdivisions, is amended to reflect the changes in rule 3.210. It also expands the determination from the
limited area of whether an incompetent defendant should be voluntarily committed to treatment to recommended treatment options designed to
restore or maintain competence. Subdivision (v) has been deleted because consideration of less restrictive alternatives is addressed in other
amendments. [See rule 3.212(c)(3)(iv).] The amendments further reflect 1985 legislative amendments to chapters 394 and 916, Florida Statutes.
(ii) Appropriate treatment may include maintaining the defendant on psychotropic or other medication. See rule 3.215.
(c) This provision is amended to take into account the defense of insanity both at trial and in violation of probation/community control
hearings.
(d) This provision deletes the old language relating to the use of standardized forms. The new provision, with its 4 subdivisions, outlines in
detail what the written report of an expert is to include, to ensure the appointed expert understands what issues are to be addressed, and that the
report identifies sources of information, tests or evaluation techniques used, and includes the findings and observations upon which the expert’s
opinion is based. It requires the expert to specify those issues on which the expert could not render an opinion.
(e) This provision is amended to comply with changes in rule 3.210. In addition, the second paragraph has been expanded to clarify under
what circumstances the reports of experts in a competency evaluation may be discovered by the prosecution and used as evidence in a hearing
other than the hearing on the issue of a defendant’s competency to proceed.
1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.212. COMPETENCE TO PROCEED: HEARING AND DISPOSITION
(a) Admissibility of Evidence. The experts preparing the reports may be called by either party or the court, and
additional evidence may be introduced by either party. The experts appointed by the court shall be deemed court
witnesses whether called by the court or either party and may be examined as such by either party.
(b) Finding of Competence. The court shall first consider the issue of the defendant’s competence to proceed. If
the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.
(c) Commitment on Finding of Incompetence. If the court finds the defendant is incompetent to proceed, or that
the defendant is competent to proceed but that the defendant’s competence depends on the continuation of
appropriate treatment for a mental illness or mental retardation, the court shall consider issues relating to treatment
necessary to restore or maintain the defendant’s competence to proceed.
(1) The court may order the defendant to undergo treatment if the court finds that the defendant is mentally ill or
mentally retarded and is in need of treatment and that treatment appropriate for the defendant’s condition is
available. If the court finds that the defendant may be treated in the community on bail or other release conditions,
the court may make acceptance of reasonable medical treatment a condition of continuing bail or other release
conditions.
(2) If the defendant is incarcerated, the court may order treatment to be administered at the custodial facility or
may order the defendant transferred to another facility for treatment or may commit the defendant as provided in
subdivision (3).
(3) A defendant may be committed for treatment to restore a defendant’s competence to proceed if the court
finds that:
(A) the defendant meets the criteria for commitment as set forth by statute;
(B) there is a substantial probability that the mental illness or mental retardation causing the defendant’s
incompetence will respond to treatment and that the defendant will regain competency to proceed in the reasonably
foreseeable future;
(C) treatment appropriate for restoration of the defendant’s competence to proceed is available; and
(D) no appropriate treatment alternative less restrictive than that involving commitment is available.
(4) If the court commits the defendant, the order of commitment shall contain:
(A) findings of fact relating to the issues of competency and commitment addressing the factors set forth in
rule 3.211 when applicable;
(B) copies of the reports of the experts filed with the court pursuant to the order of examination;
(C) copies of any other psychiatric, psychological, or social work reports submitted to the court relative to the
mental state of the defendant; and
(D) copies of the charging instrument and all supporting affidavits or other documents used in the
determination of probable cause.
(5) The treatment facility shall admit the defendant for hospitalization and treatment and may retain and treat
the defendant. No later than 6 months from the date of admission, the administrator of the facility shall file with the
court a report that shall address the issues and consider the factors set forth in rule 3.211, with copies to all parties.
If, at any time during the 6-month period or during any period of extended commitment that may be ordered
pursuant to this rule, the administrator of the facility determines that the defendant no longer meets the criteria for
commitment or has become competent to proceed, the administrator shall notify the court by such a report, with
copies to all parties.
(A) If, during the 6-month period of commitment and treatment or during any period of extended commitment
that may be ordered pursuant to this rule, counsel for the defendant shall have reasonable grounds to believe that the
defendant is competent to proceed or no longer meets the criteria for commitment, counsel may move for a hearing
on the issue of the defendant’s competence or commitment. The motion shall contain a certificate of counsel that the
motion is made in good faith and on reasonable grounds to believe that the defendant is now competent to proceed or
no longer meets the criteria for commitment. To the extent that it does not invade the attorney-client privilege, the
motion shall contain a recital of the specific observations of and conversations with the defendant that have formed
the basis for the motion.
(B) If, upon consideration of a motion filed by counsel for the defendant or the prosecuting attorney and any
information offered the court in support thereof, the court has reasonable grounds to believe that the defendant may
have regained competence to proceed or no longer meets the criteria for commitment, the court shall order the
administrator of the facility to report to the court on such issues, with copies to all parties, and shall order a hearing
to be held on those issues.
(6) The court shall hold a hearing within 30 days of the receipt of any such report from the administrator of the
facility on the issues raised thereby. If, following the hearing, the court determines that the defendant continues to be
incompetent to proceed and that the defendant meets the criteria for continued commitment or treatment, the court shall
order continued commitment or treatment for a period not to exceed 1 year. When the defendant is retained by the facility,
the same procedure shall be repeated prior to the expiration of each additional 1-year period of extended commitment.
(7) If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to
proceed, it shall enter its order so finding and shall proceed.
(8) If, after any such hearing, the court determines that the defendant remains incompetent to proceed but no
longer meets the criteria for commitment, the court shall proceed as provided in rule 3.212(d).
(d) Release on Finding of Incompetence. If the court decides that a defendant is not mentally competent to
proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release
conditions for a period not to exceed 1 year. The court may order that the defendant receive outpatient treatment at
an appropriate local facility and that the defendant report for further evaluation at specified times during the release
period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed
by the court to make such evaluations, with copies to all parties.
Committee Notes
1980 Adoption. This rule sets forth the procedure for the hearing itself. If other experts have been involved who were not appointed pursuant to this
rule, provision is made that such experts may then be called by either party. Those experts appointed by the court to conduct the examination, if called by
the court or by either party to testify at the hearing, will be regarded as court experts. Either party may then examine such experts by leading questions or
may impeach such experts. If a party calls an expert witness other than those appointed by the court pursuant to these rules, the usual evidentiary rules of
examining such witnesses shall then apply. Following the hearing, the court may come to one of 3 conclusions: (a) the defendant is competent to stand
trial, rule 3.212(a); (b) the defendant is incompetent to stand trial and is in need of involuntary hospitalization, rule 3.212(b); or (c) the defendant is
incompetent to stand trial but is not in need of involuntary hospitalization, rule 3.212(c).
(a) This provision has been contained in every prior rule or statute relating to the issues of competency to stand trial and provides that if the
defendant is competent the trial shall commence. No change is recommended.
(b) This subdivision provides for the second possible finding of the court, namely that the defendant is found incompetent to stand trial and is
in need of involuntary hospitalization. It is designed to track the provisions of chapter 394, Florida Statutes, relating to involuntary hospitalization
and the provisions of chapter 393 relating to residential services insofar as they may apply to the defendant under criminal charges. In this way,
the procedures to be set up by the institution to which a criminal defendant is sent should not vary greatly from procedures common to the
institution in the involuntary hospitalization or residential treatment of those not subject to criminal charges.
The criteria for involuntary hospitalization are set forth in section 394.467(1), Florida Statutes (1979). As to involuntary hospitalization for
mental retardation, see section 393.11, Florida Statutes (1979); definition of treatment facility, see section 394.455, Florida Statutes (1979);
involuntary admission to residential services, see section 393.11, Florida Statutes (1979).
(2) The requirement that there be certain contents to the order of commitment is set forth in order to give greater assistance to the personnel
of the treatment facility. The information to be included in the order should give them the benefit of all information that has been before the trial
judge and has been considered by that judge in making the decision to involuntarily hospitalize the defendant. This information should then assist
the personnel of the receiving institution in making their initial evaluation and in instituting appropriate treatment more quickly. The last requirement,
that of supporting affidavits or other documents used in the determination of probable cause, is to give some indication of the nature of the
offense to the examining doctors to enable them to determine when the defendant has reached a level of improvement that he or she can discuss
the charge with “a reasonable degree of rational understanding.”
(3) This subdivision is designed to correspond with a complementary section of the Florida Statutes. It mandates, as does the statute, that
the treatment facility must admit the defendant for hospitalization and treatment. The time limitations set forth in this subdivision are designed to
coincide with those set forth in chapter 394, Florida Statutes. If, however, the defendant should regain competence or no longer meets hospitalization
criteria prior to the expiration of any of the time periods set, the administrator of the facility may report to the court and cause a reevaluation
of the defendant’s mental status. At the end of the 6-month period, and every year thereafter, the administrator must report to the court.
These time periods are set forth so as to coincide with chapter 394, Florida Statutes.
(i) Permits the defendant’s attorney, in an appropriate case, to request a hearing if the attorney believes the defendant to have regained
competency. The grounds for such belief are to be contained in the motion, as is a certificate of the good faith of counsel in filing it. If the motion
is sufficient to give the court reasonable grounds to believe that the defendant may be competent or no longer meets the criteria for
hospitalization, the court can order a report from the administrator and hold a hearing on the issues.
(4) The rule is meant to mandate that the court hold a hearing as quickly as possible, but the hearing must be held at least within 30 days of
the receipt of the report from the administrator of the facility.
(c) This rule provides for the disposition of the defendant who falls under the third of the alternatives listed above, that is, one who is incompetent
to stand trial but does not meet the provisions for involuntary hospitalization. It is meant to provide as great a flexibility as possible for the trial judge in
handling such defendant.
As to criteria for involuntary hospitalization, see section 394.467(1), Florida Statutes (1979).
Section 916.13, Florida Statutes complements this rule and provides for the hospitalization of defendants adjudicated incompetent to stand trial.
1988 Amendment. Title. The title has been amended to reflect changes in rules 3.210 and 3.211.
(a) This provision was formerly the introductory paragraph to this rule. It has been labeled subdivision (a) for consistency in form.
(b) This provision was former subdivision (a). It has been amended to reflect changes in rules 3.210 and 3.211. The former subdivisions (b)
and (b)(1) have been deleted because similar language is now found in new subdivision (c).
(c) This new provision, including all its subdivisions, is designed to reflect the commitment criteria in section 916.13(1), Florida Statutes, and
to reflect that commitment to the Department of Health and Rehabilitative Services is to be tied to specific commitment criteria when no less
restrictive treatment alternative is available.
(1) This provision provides for available community treatment when appropriate.
(2) This provision provides for treatment in a custodial facility or other available community residential program.
(3) This provision, and its subdivisions, outlines when a defendant may be committed and refers to commitment criteria under the
provisions of section 916.13(1), Florida Statutes.
(4) This provision, and its subdivisions, was formerly subdivision (b)(2). The language has been amended to reflect changes in chapter 916
relating to the commitment of persons found incompetent to proceed and changes in rules 3.210 and 3.211.
(5) This provision, and its subdivisions, was formerly subdivision (b)(3). The amendments are for the same reasons as (4) above.
(6) This provision was formerly subdivision (b)(4). The amendments are for the same reasons as (4) above.
(7) This provision was formerly subdivision (b)(5). The amendments are for the same reasons as (4) above.
(8) This provision was formerly subdivision (b)(6). The amendments are for the same reasons as (4) above.
(d) The amendments to the provision are for the same reasons as (4) above.
1992 Amendment. The amendments substitute “shall” in place of “may” in subdivision (c)(5)(B) to require the trial court to order the
administrator of the facility where an incompetent defendant has been committed to report to the court on the issue of competency when the court
has reasonable grounds to believe that the defendant may have regained competence to proceed or no longer meets the criteria for commitment.
The amendments also gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO
PROCEED WITH SENTENCING: DISPOSITION
(a) Dismissal without Prejudice during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed
with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a
misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed
with a probation or community control violation hearing, that there is no substantial probability that the defendant
will become mentally competent to stand trial or proceed with a probation or community control violation hearing in
the foreseeable future, and that the defendant does not meet the criteria for commitment, it shall dismiss the charges
against the defendant without prejudice to the state to refile the charges should the defendant be declared competent
to proceed in the future.
(2) If the incompetency to stand trial or to proceed is due to retardation or autism, the court shall dismiss the
charges within a reasonable time after such determination, not to exceed 2 years for felony charges and 1 year for
misdemeanor charges, unless the court specifies in its order the reasons for believing that the defendant will become
competent within the foreseeable future and specifies the time within which the defendant is expected to become
competent. The dismissal shall be without prejudice to the state to refile should the defendant be declared competent
to proceed in the future.
(b) Commitment or Treatment during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed
with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a
misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed
with a probation or community control violation hearing, that there is no substantial probability that the defendant
will become mentally competent to stand trial or proceed with a probation or community control violation hearing in
the foreseeable future, and that the defendant does meet the criteria for commitment, the court shall dismiss the
charges against the defendant and commit the defendant to the Department of Children and Family Services for
involuntary hospitalization or residential services solely under the provisions of law or may order that the defendant
receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those
statutes. In the order of commitment, the judge shall order that the administrator of the facility notify the state
attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant. If
charges are dismissed pursuant to this subdivision, the dismissal shall be without prejudice to the state to refile the
charges should the defendant be declared competent to proceed in the future.
(2) If the continuing incompetency is due to retardation or autism, and the defendant either lacks the ability to
provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be
involuntarily admitted to residential services as provided by law.
(c) Applicability. This rule shall not apply to defendants determined to be incompetent to proceed with
sentencing, which is addressed in rule 3.214.
Committee Notes
1980 Adoption. As to involuntary hospitalization, see section 394.467(1), Florida Statutes (1979); as to involuntary admission to residential
services, see chapter 393, Florida Statutes (1979).
(b) This provision is meant to deal with the defendant who remains incompetent after 5 years, and who does meet the criteria for involuntary
hospitalization. It provides that the criminal charges will be dismissed and the defendant will be involuntarily hospitalized. It further provides that
the administrator of the facility must notify the state attorney prior to any release of a defendant committed pursuant to this subdivision.
As to criteria for involuntary hospitalization, see section 394.467(1), Florida Statutes (1979); in case of retardation, see chapter 393, Florida
Statutes (1979).
(c) Since commitment criteria for a defendant determined to be incompetent to stand trial are the same as for civil hospitalization, there is no
need to continue the difference between felony and misdemeanor procedure.
Section 916.14, Florida Statutes, makes the statute of limitations and defense of former jeopardy inapplicable to criminal charges dismissed
because of incompetence of defendant to stand trial.
1988 Amendment. Title. The title has been amended to comply with changes in rule 3.210, but specifically excludes competency to proceed
with sentencing, which is addressed in the new rule 3.214.
(a) This provision was amended to reflect changes in rules 3.210 and 3.211. New language is added which specifies that, if charges are
dismissed under this rule, it is without prejudice to the state to refile if the defendant is declared competent to proceed in the future. Similar
language was previously found in rule 3.214(d), but is more appropriate under this rule.
(b) This provision has been amended for the same reasons as (a) above.
(c) This new provision specifically exempts this rule from being used against a defendant determined to be incompetent to be sentenced,
which is now provided in the new rule 3.214. It is replaced by the new rule 3.214.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.214. INCOMPETENCY TO PROCEED TO SENTENCING: DISPOSITION
If a defendant is determined to be incompetent to proceed after being found guilty of an offense or violation of
probation or community control or after voluntarily entering a plea to an offense or violation of probation or
community control, but prior to sentencing, the court shall postpone the pronouncement of sentence and proceed
pursuant to rule 3.210 (et seq.) and the following rules.
Committee Note
1988 Amendment. Title. This new rule replaces the former rule 3.740. It was felt to be more appropriately addressed in this sequence. The
former rule 3.214 is now renumbered 3.215. The former rule 3.740 used the inappropriate phrase “(p)rocedures when insanity is alleged as cause
for not pronouncing sentence.” Insanity is an affirmative defense to a criminal charge. The more correct term is “incompetence to proceed to
sentencing.”
(a) This new provision reiterates amendments to rule 3.210 and provides that sentencing shall be postponed for a defendant incompetent to
proceed with disposition of a criminal matter—to include a finding of guilt at trial, after entry of a voluntary plea, or after a violation of probation
or community control proceeding.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.215. EFFECT OF ADJUDICATION OF INCOMPETENCY TO PROCEED:
PSYCHOTROPIC MEDICATION
(a) Former Jeopardy. If the defendant is declared incompetent to stand trial during trial and afterwards declared
competent to stand trial, the defendant’s other uncompleted trial shall not constitute former jeopardy.
(b) Limited Application of Incompetency Adjudication. An adjudication of incompetency to proceed shall not
operate as an adjudication of incompetency to consent to medical treatment or for any other purpose unless such
other adjudication is specifically set forth in the order.
(c) Psychotropic Medication. A defendant who, because of psychotropic medication, is able to understand the
proceedings and to assist in the defense shall not automatically be deemed incompetent to proceed simply because
the defendant’s satisfactory mental condition is dependent on such medication, nor shall the defendant be prohibited
from proceeding solely because the defendant is being administered medication under medical supervision for a
mental or emotional condition.
(1) Psychotropic medication is any drug or compound affecting the mind, behavior, intellectual functions,
perception, moods, or emotion and includes anti-psychotic, anti-depressant, anti-manic, and anti-anxiety drugs.
(2) If the defendant proceeds to trial with the aid of medication for a mental or emotional condition, on the
motion of defense counsel, the jury shall, at the beginning of the trial and in the charge to the jury, be given
explanatory instructions regarding such medication.
Committee Notes
1980 Adoption. (c) As to psychotropic medications, see section 916.12(2), Florida Statutes (1980).
(d) This subdivision is intended to provide specific exceptions to the speedy trial rule.
1988 Amendment. Title. This rule was formerly rule 3.214.
The amendments to this rule, including the title, are designed to reflect amendments to rules 3.210 and 3.211.
(d) Matters contained in former subsection (d) are covered by the provisions of rule 3.191. That subsection has therefore been deleted.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.216. INSANITY AT TIME OF OFFENSE OR PROBATION OR COMMUNITY CONTROL
VIOLATION: NOTICE AND APPOINTMENT OF EXPERTS
(a) Expert to Aid Defense Counsel. When in any criminal case counsel for a defendant adjudged to be indigent
or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may
be incompetent to proceed or that the defendant may have been insane at the time of the offense or probation or community
control violation, counsel may so inform the court who shall appoint 1 expert to examine the defendant in
order to assist counsel in the preparation of the defense. The expert shall report only to the attorney for the defendant
and matters related to the expert shall be deemed to fall under the lawyer-client privilege.
(b) Notice of Intent to Rely on Insanity Defense. When in any criminal case it shall be the intention of the
defendant to rely on the defense of insanity either at trial or probation or community control violation hearing, no
evidence offered by the defendant for the purpose of establishing that defense shall be admitted in the case unless
advance notice in writing of the defense shall have been given by the defendant as hereinafter provided.
(c) Time for Filing Notice. The defendant shall give notice of intent to rely on the defense of insanity no later than
15 days after the arraignment or the filing of a written plea of not guilty in the case when the defense of insanity is to be
relied on at trial or no later than 15 days after being brought before the appropriate court to answer to the allegations in a
violation of probation or community control proceeding. If counsel for the defendant shall have reasonable grounds to
believe that the defendant may be incompetent to proceed, the notice shall be given at the same time that the motion for
examination into the defendant’s competence is filed. The notice shall contain a statement of particulars showing the
nature of the insanity the defendant expects to prove and the names and addresses of the witnesses by whom the
defendant expects to show insanity, insofar as is possible.
(d) Court Appointed Experts. On the filing of such notice the court may on its own motion, and shall on motion
of the state or the defendant, order that the defendant be examined by no more than 3 nor fewer than 2 disinterested,
qualified experts as to the sanity or insanity of the defendant at the time of the commission of the alleged offense or
probation or community control violation. Attorneys for the state and defendant may be present at the examination.
The examination should take place at the same time as the examination into the competence of the defendant to
proceed, if the issue of competence has been raised.
(e) Time for Filing Notice of Intent to Rely on a Mental Health Defense Other than Insanity. The defendant
shall give notice of intent to rely on any mental health defense other than insanity as soon as a good faith
determination has been made to utilize the defense but in no event later than 30 days prior to trial. The notice shall
contain a statement of particulars showing the nature of the defense the defendant expects to prove and the names
and addresses of the witnesses by whom the defendant expects to prove the defense, insofar as possible. If expert
testimony will be presented, the notice shall indicate whether the expert has examined the defendant.
(f) Court-Appointed Experts for Other Mental Health Defenses. If the notice to rely on any mental health
defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the
defendant, the court shall upon motion of the state order the defendant be examined by one qualified expert as to the
mental health defense raised by the defendant. Upon a showing of good cause, the court may order additional examinations
upon motion by the state or the defendant. Attorneys for the state and defendant may be present at the
examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state
shall not be entitled to a compulsory examination of the defendant.
(g) Report of Experts to Court. The experts shall examine the defendant and shall file with the court in writing
at such time as shall be specified by the court, with copies to attorneys for the state and the defense, a report that
shall contain:
(1) a description of the evaluative techniques that were used in their examination;
(2) a description of the mental and emotional condition and mental processes of the defendant at the time of the
alleged offense or probation or community control violation, including the nature of any mental impairment and its
relationship to the actions and state of mind of the defendant at the time of the offense or probation or community
control violation;
(3) a statement of all relevant factual information regarding the defendant’s behavior on which the conclusions
or opinions regarding the defendant’s mental condition were based; and
(4) an explanation of how the conditions and opinions regarding the defendant’s mental condition at the time of
the alleged offense or probation or community control violation were reached.
(h) Waiver of Time to File. On good cause shown for the omission of the notice of intent to rely on the defense
of insanity, or any mental health defense, the court may in its discretion grant the defendant 10 days to comply with
the notice requirement. If leave is granted and the defendant files the notice, the defendant is deemed unavailable to
proceed. If the trial has already commenced, the court, only on motion of the defendant, may declare a mistrial in
order to permit the defendant to raise the defense of insanity pursuant to this rule. Any motion for mistrial shall
constitute a waiver of the defendant’s right to any claim of former jeopardy arising from the uncompleted trial.
(i) Evaluating Defendant after Pretrial Release. If the defendant has been released on bail or other release
conditions, the court may order the defendant to appear at a designated place for evaluation at a specific time as a
condition of the release provision. If the court determines that the defendant will not submit to the evaluation
provided for herein or that the defendant is not likely to appear for the scheduled evaluation, the court may order the
defendant taken into custody until the evaluation is completed. A motion made for evaluation under this subdivision
shall not otherwise affect the defendant’s right to pretrial release.
(j) Evidence. The appointment of experts by the court shall not preclude the state or the defendant from calling
additional expert witnesses to testify at the trial. The experts appointed by the court may be summoned to testify at the
trial, and shall be deemed court witnesses whether called by the court or by either party. Other evidence regarding the
defendant’s insanity or mental condition may be introduced by either party. At trial, in its instructions to the jury, the
court shall include an instruction on the consequences of a verdict of not guilty by reason of insanity.
Committee Notes
1980 Adoption.
(a) This subdivision is based on Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977), and provides that an expert may be provided for an
indigent defendant. The appointment of the expert will in this way allow the public defender or court-appointed attorney to screen possible
incompetency or insanity cases and give a basis for determining whether issues of incompetency or insanity ought to be raised before the court; it
will also permit the defense attorney to specify in greater detail in the statement of particulars the nature of the insanity that attorney expects to
prove, if any, and the basis for the raising of that defense.
(b) Essentially the same as in prior rules; provides that written notice must be given in advance by the defendant.
(c) Since counsel for indigents often are not appointed until arraignment and since it is sometimes difficult for a defendant to make a
determination on whether the defense of insanity should be raised prior to arraignment, a 15-day post-arraignment period is provided for the
filing of the notice. The defendant must raise incompetency at the same time as insanity, if at all possible. With the appointment of the expert to
assist, the defendant should be able to raise both issues at the same time if grounds for both exist. The remainder of the rule, providing for the
statement to be included in the notice, is essentially the same as that in prior rules.
(d) The appointment of experts provision is designed to track, insofar as possible, the provisions for appointment of experts contained in the
rules relating to incompetency to stand trial and in the Florida Statutes relating to appointment of expert witnesses. Insofar as possible, the single
examination should include incompetency, involuntary commitment issues where there are reasonable grounds for their consideration, and issues
of insanity at time of the offense. Judicial economy would mandate such a single examination where possible.
(g) In order to obtain more standardized reports, specific items relating to the examination are required of the examining experts. See note to
rule 3.211(a).
(h) Essentially the substance of prior rule 3.210(e)(4) and (5), with some changes. Both prior provisions are combined into a single provision;
speedy trial time limits are no longer set forth, but waiver of double jeopardy is mandated.
(i) Same as rule 3.210(b)(3), relating to incompetency to stand trial. See commentary to that rule.
(j) A restatement of former rule 3.210(e)(7). The provision that experts called by the court shall be deemed court witnesses is new. The
former provision relating to free access to the defendant is eliminated as unnecessary.
As to appointment of experts, see section 912.11, Florida Statutes.
1988 Amendment. The amendments to this rule, including the title, provide for the affirmative defense of insanity in violation of probation or
community control proceedings as well as at trial.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
1996 Amendment. Subdivisions (e) and (f) were added to conform to State v. Hickson, 630 So.2d 172 (Fla. 1993). These amendments are not
intended to expand existing case law.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF INSANITY: DISPOSITION OF
DEFENDANT
(a) Verdict of Not Guilty by Reason of Insanity. When a person is found by the jury or the court not guilty of
the offense or is found not to be in violation of probation or community control by reason of insanity, the jury or
judge, in giving the verdict or finding of not guilty judgment, shall state that it was given for that reason.
(b) Treatment, Commitment, or Discharge after Acquittal. When a person is found not guilty of the offense or
is found not to be in violation of probation or community control by reason of insanity, if the court then determines
that the defendant presently meets the criteria set forth by law, the court shall commit the defendant to the
Department of Children and Family Services or shall order outpatient treatment at any other appropriate facility or
service, or shall discharge the defendant. Any order committing the defendant or requiring outpatient treatment or
other outpatient service shall contain:
(1) findings of fact relating to the issue of commitment or other court-ordered treatment;
(2) copies of any reports of experts filed with the court; and
(3) any other psychiatric, psychological, or social work report submitted to the court relative to the mental state
of the defendant.
Committee Notes
1980 Adoption.
(a) Same substance as in prior rule.
(b) The criteria for commitment are set forth in chapter 394, Florida Statutes. This rule incorporates those statutory criteria by reference and
then restates the other alternatives available to the judge under former rule 3.210.
See section 912.18, Florida Statutes, for criteria.
(1) This subdivision is equivalent to rule 3.212(b)(2); see commentary to that rule.
1988 Amendment. The amendments to this rule provide for evaluation of a defendant found not guilty by reason of insanity in violation of
probation or community control proceedings as well as at trial. The amendments further reflect 1985 amendments to chapter 916, Florida Statutes.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.218. COMMITMENT OF A DEFENDANT FOUND NOT GUILTY BY REASON OF
INSANITY
(a) Commitment; 6-Month Report. The Department of Children and Family Services shall admit to an
appropriate facility a defendant found not guilty by reason of insanity under rule 3.217 and found to meet the criteria
for commitment for hospitalization and treatment and may retain and treat the defendant. No later than 6 months
from the date of admission, the administrator of the facility shall file with the court a report, and provide copies to all
parties, which shall address the issues of further commitment of the defendant. If at any time during the 6-month
period, or during any period of extended hospitalization that may be ordered under this rule, the administrator of the
facility shall determine that the defendant no longer meets the criteria for commitment, the administrator shall notify
the court by such a report and provide copies to all parties.
(b) Right to Hearing if Committed upon Acquittal. The court shall hold a hearing within 30 days of the receipt
of any report from the administrator of the facility on the issues raised thereby, and the defendant shall have a right
to be present at the hearing. If the court determines that the defendant continues to meet the criteria for continued
commitment or treatment, the court shall order further commitment or treatment for a period not to exceed 1 year.
The same procedure shall be repeated before the expiration of each additional 1-year period in which the defendant
is retained by the facility.
(c) Evidence to Determine Continuing Insanity. Before any hearing held under this rule, the court may, on its
own motion, and shall, on motion of counsel for the state or defendant, appoint no fewer than 2 nor more than 3
experts to examine the defendant relative to the criteria for continued commitment or placement of the defendant and
shall specify the date by which the experts shall report to the court on these issues and provide copies to all parties.
Committee Notes
1980 Adoption. This provision provides for hospitalization of a defendant found not guilty by reason of insanity and is meant to track similar
provisions in the rules relating to competency to stand trial and the complementary statutes. It provides for an initial 6-month period of
commitment with successive 1-year periods; it provides for reports to the court and for the appointment of experts to examine the defendant when
such hearings are necessary. The underlying rationale of this rule is to make standard, insofar as possible, the commitment process, whether it be
for incompetency to stand trial or following a judgment of not guilty by reason of insanity.
For complementary statute providing for hospitalization of defendant adjudicated not guilty by reason of insanity, see section 912.15, Florida
Statutes.
1988 Amendment. The amendments to this rule, including the title, provide for commitment of defendants found not guilty by reason of
insanity in violation of probation or community control proceedings, as well as those so found at trial. The amendments further reflect 1985
amendments to chapter 916, Florida Statutes.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
RULE 3.219. CONDITIONAL RELEASE
(a) Release Plan. The committing court may order a conditional release of any defendant who has been committed
according to a finding of incompetency to proceed or an adjudication of not guilty by reason of insanity based on an
approved plan for providing appropriate outpatient care and treatment. When the administrator shall determine
outpatient treatment of the defendant to be appropriate, the administrator may file with the court, and provide copies to
all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. The plan
may be submitted by the defendant. The plan shall include:
(1) special provisions for residential care, adequate supervision of the defendant, or both;
(2) provisions for outpatient mental health services; and
(3) if appropriate, recommendations for auxiliary services such as vocational training, educational services, or
special medical care.
In its order of conditional release, the court shall specify the conditions of release based on the release plan and shall
direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant’s
compliance with the conditions of the release, and progress in treatment, and provide copies to all parties.
(b) Defendant’s Failure to Comply. If it appears at any time that the defendant has failed to comply with the
conditions of release, or that the defendant’s condition has deteriorated to the point that inpatient care is required, or
that the release conditions should be modified, the court, after hearing, may modify the release conditions or, if the
court finds the defendant meets the statutory criteria for commitment, may order that the defendant be recommitted
to the Department of Children and Family Services for further treatment.
(c) Discharge. If at any time it is determined after hearing that the defendant no longer requires court-supervised
follow-up care, the court shall terminate its jurisdiction in the cause and discharge the defendant.
Committee Notes
1980 Adoption. This rule implements the prior statutory law permitting conditional release.
For complementary statute providing for conditional release, see section 916.17, Florida Statutes.
1988 Amendment. The amendments to this rule are designed to reflect amendments to rules 3.210, 3.211, and 3.218 as well as 1985
amendments to chapter 916, Florida Statutes.
(b) This provision has been amended to permit the court to recommit a conditionally released defendant to HRS under the provisions of
chapter 916 only if the court makes a finding that the defendant currently meets the statutory commitment criteria found in section 916.13(1),
Florida Statutes.
1992 Amendment. The purpose of the amendment is to gender neutralize the wording of the rule.
Introductory Note Relating to Amendments to Rules 3.210 to 3.219. See notes following rule 3.210 for the text of this note.
VI. DISCOVERY
RULE 3.220. DISCOVERY
(a) Notice of Discovery. After the filing of the charging document, a defendant may elect to participate in the
discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and
serving on the prosecuting attorney a “Notice of Discovery” which shall bind both the prosecution and defendant to
all discovery procedures contained in these rules. Participation by a defendant in the discovery process, including the
taking of any deposition by a defendant or the filing of a public records request under chapter 119, Florida Statutes,
for law enforcement records relating to the defendant’s pending prosecution, which are nonexempt as a result of a
codefendant’s participation in discovery, shall be an election to participate in discovery and triggers a reciprocal
discovery obligation for the defendant. If any defendant knowingly or purposely shares in discovery obtained by a
codefendant, the defendant shall be deemed to have elected to participate in discovery.
(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery
Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the
following information and material within the state’s possession or control:
(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be
relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under
section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the
following categories:
(i) Category A. These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi
witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a
defendant or codefendant, which shall be separately identified within this category, (4) investigating officers, (5)
witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as
to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report
and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set
forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
(ii) Category B. All witnesses not listed in either Category A or Category C.
(iii) Category C. All witnesses who performed only ministerial functions or whom the prosecutor does not
intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or
other statement furnished to the defense;
(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The
term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or
approved by the person and also includes any statement of any kind or manner made by the person and written or recorded
or summarized in any writing or recording. The term “statement” is specifically intended to include all police
and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from
which those reports are compiled;
(C) any written or recorded statements and the substance of any oral statements made by the defendant,
including a copy of any statements contained in police reports or report summaries, together with the name and
address of each witness to the statements;
(D) any written or recorded statements and the substance of any oral statements made by a codefendant if
the trial is to be a joint one;
(E) those portions of recorded grand jury minutes that contain testimony of the defendant;
(F) any tangible papers or objects that were obtained from or belonged to the defendant;
(G) whether the state has any material or information that has been provided by a confidential informant;
(H) whether there has been any electronic surveillance, including wiretapping, of the premises of the
defendant or of conversations to which the defendant was a party and any documents relating thereto;
(I) whether there has been any search or seizure and any documents relating thereto;
(J) reports or statements of experts made in connection with the particular case, including results of
physical or mental examinations and of scientific tests, experiments, or comparisons; and
(K) any tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial and that
were not obtained from or that did not belong to the defendant.
(2) If the court determines, in camera, that any police or investigative report contains irrelevant, sensitive
information or information interrelated with other crimes or criminal activities and the disclosure of the contents of
the police report may seriously impair law enforcement or jeopardize the investigation of those other crimes or
activities, the court may prohibit or partially restrict the disclosure.
(3) The court may prohibit the state from introducing into evidence any of the foregoing material not disclosed,
so as to secure and maintain fairness in the just determination of the cause.
(4) As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant
any material information within the state’s possession or control that tends to negate the guilt of the defendant as to any
offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

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