Changes to the Rules of Criminal Procedure Changes to the Rules of Criminal Procedure October 1, 2005 telephone Regular News The Florida Supreme Court’s Criminal Court Steering Committee has submitted to the Court a report proposing amendments to Florida Rule of Criminal Procedure 3.851, Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal. The committee also proposes new Florida Rule of Criminal Procedure 3.590(b), Time for Filing [Motions for New Trial or for New Penalty Phase] in Capital Cases Where the Death Penalty is an Issue. The Court invites all interested persons to comment on the committee’s proposals, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before November 1, with a certificate of service verifying that a copy has been served on the committee chair, Judge O.H. Eaton, Jr., 101 Bush Boulevard, Sanford 32773, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.851 AND 3.590, CASE NO. SC05-1165 Rule 3.590. Time for and Method of Making Motions; Procedure; Custody Pending Hearing (a) Time for Filing in Noncapital Cases. A motion for new trial or in arrest of judgment, or both, in cases in which the state does not seek the death penalty, may be made within 10 days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the 10-day period and in the discretion of the court at any other time before the motion is determined. (b) Time for Filing in Capital Cases Where the Death Penalty is an Issue. A motion for new trial or in arrest of judgment, or both, or for a new penalty phase hearing may be made (1) within ten days after the jury returns a penalty recommendation in the penalty phase or (2) if there is no jury, within ten days after all of the penalty phase evidence has been presented to the court. The motion may address grounds which arose in the guilt phase and the penalty phase of the trial. Separate motions for the guilt phase and the penalty phase may be filed. The court may extend the time for filing these motions until ten days after sentence is pronounced on its own motion or on motion of either party. The motion or motions may be amended without leave of court prior to the expiration of the ten day period, and, in the discretion of the court, at any other time before the motion is determined. (b) (c) Oral Motions. When the defendant has been found guilty by a jury or by the court, the motion may be dictated into the record, if a court reporter is present, and may be argued immediately after the return of the verdict or the finding of the court. The court may immediately rule on the motion. (c) (d) Written Motions. The motion may be in writing, filed with the clerk; it shall state the grounds on which it is based. A copy of a written motion shall be served on the prosecuting attorney. When the court sets a time for the hearing thereon, the clerk may notify counsel for the respective parties or the attorney for the defendant may serve notice of hearing on the prosecuting officer. ( d) (e) Custody Pending Motion. Until the motion is disposed of, a defendant who is not already at liberty on bail shall remain in custody and not be allowed liberty on bail unless the court on good cause shown (if the offense for which the defendant is convicted is bailable) permits the defendant to be released on bail until the motion is disposed of. If the defendant is already at liberty on bail that is deemed by the court to be good and sufficient, it may permit the defendant to continue at large on such bail until the motion for new trial is heard and disposed of. Committee Notes (No Change) Court Commentary 2005 Amendment. This amendment provides the time limitations and procedures for moving for new trial, arrest of judgment or a new penalty phase in capital cases in which the death penalty is an issue. The motions must be made (1) within ten days after the jury returns a penalty recommendation, (2) within ten days after all of the penalty phase evidence has been presented to the court sitting without a jury, and (3) it provides the presiding judge with the discretion to allow the filing of these motions ten days after pronouncement of sentence. Rule 3.851. Collateral Relief After Death Sentence Has Been Imposed And Affirmed On Direct Appeal (a) Scope. This rule shall apply to all motions and petitions for any type of postconviction or collateral relief brought by a prisoner in state custody who has been sentenced to death and whose conviction and death sentence have been affirmed on direct appeal. It shall apply to all postconviction motions filed on or after October 1, 2001 . , by prisoners who are under sentence of death. Motions pending on that date are governed by the version of this rule in effect immediately prior to that date. (b) Appointment of Postconviction Counsel. (1) Upon the issuance of the mandate affirming a judgment and sentence of death on direct appeal, the Supreme Court of Florida shall at the same time issue an order appointing the appropriate office of the Capital Collateral Regional Counsel . or direct the trial court to immediately appoint counsel from the Registry of Attorneys maintained by the Commission on Capital Cases. The name of Registry Counsel shall be filed with the Supreme Court of Florida. (2) Within 30 days of the issuance of the mandate, the Capital Collateral Regional Counsel , or Registry Counsel, shall file a notice of appearance in the trial court or a motion to withdraw based on a conflict of interest or some other legal ground. Motions to withdraw filed more than 30 days after the issuance of the mandate shall not be entertained unless based on a specific conflict of interest as set forth in section 27.703, Florida Statutes. (3) Within 15 days after Capital Collateral Regional Counsel , or Registry counsel, files a motion to withdraw, the chief judge or assigned judge shall rule on the motion and appoint new postconviction counsel if necessary. The appointment of new collateral counsel shall be from the Registry of attorneys maintained by the Commission on Capital Cases unless the case is administratively transferred to another Capital Collateral Regional Counsel. (c) Preliminary Procedures. (1)(No Change) (2) Status Conferences. The assigned judge shall conduct a status hearing conference not later than 90 days after the judicial assignment, and shall hold status conferences at least every 90 days thereafter until the evidentiary hearing has been completed or the motion has been ruled on without a hearing. The attorneys, with leave of the trial court, may appear by telephone electronically at such the status conferences. Such requests Requests to appear electronically shall be liberally granted. Pending motions, disputes involving public records, or any other matters ordered by the court shall be heard at the status conferences. (3) – (4) (No Change) (d) Time Limitation. (1) Any motion to vacate judgment of conviction and sentence of death shall be filed by the prisoner within 1 year after the judgment and sentence become becomes final. For the purposes of this rule, a judgment is final: (A) – (B) (No Change) (2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges : that (A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or (B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or (C) postconviction counsel, through neglect, failed to file the motion. (3) All petitions for extraordinary relief in which the Supreme Court of Florida has original jurisdiction, including petitions for writ writs of habeas corpus, shall be filed simultaneously with the initial brief filed on behalf of the death-sentenced prisoner in the appeal of the circuit court’s order on the initial motion for postconviction relief filed under this rule. (4) – (5) (No Change) (e) Contents of Motion. (1) Initial Motion. A motion filed under this rule is an initial postconviction motion if no state court has previously ruled on a postconviction motion challenging the same judgment and sentence. An initial motion and memorandum of law filed under this rule shall not exceed 75 pages exclusive of the attachments. Attachments shall include , but are not limited to , the judgment and sentence. The memorandum of law shall set forth the applicable case law supporting the granting of relief as to each separately pled claim. This rule does not authorize relief based upon claims that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. As to If claims that were raised on appeal or should have or could have been raised on appeal are contained in the motion, the memorandum of law shall contain a brief statement as to explaining why these claims are being raised on postconviction relief. The motion shall be under oath and shall include: (A) a statement specifying description of the judgment and sentence under attack and the name of the court that rendered the same; (B) – (E) (No Change) The memorandum of law shall set forth the applicable case law supporting the granting of relief as to each separately pled claim. As to claims that were raised on appeal or should have or could have been raised on appeal, the memorandum shall contain a brief statement as to why these claims are being raised on postconviction relief. (2) (No Change) (f) Procedure; Evidentiary Hearing; Disposition. (1) (No Change) (2) Duty of Clerk. Upon the filing of a motion for postconviction relief, the clerk of the trial court shall immediately forward the motion and file to the assigned judge. A motion filed under this rule shall be immediately delivered to the chief judge or the assigned judge along with the court file. (3) Answer. (A) Answer To Initial Motion to the initial motion. Within 60 days of the filing of an initial motion, the state shall file its answer. The answer and accompanying memorandum of law shall not exceed 75 pages, exclusive of attachments and exhibits. The answer shall address the legal insufficiency of any claim in the motion, respond to the allegations of the motion, and address any procedural bars. As to any claims of legal insufficiency or procedural bar, the state shall include a short statement of any applicable case law. (B) Answer To Successive Motion to a successive motion. Within 20 days of the filing of a successive motion, the state shall file its answer. The answer shall not exceed 25 pages, exclusive of attachments and exhibits. The answer shall specifically respond to each claim in the motion and state the reason(s) that an evidentiary hearing is or is not required. (4) (No Change) (5) Case Management Conference; Evidentiary Hearing. (A) Initial Postconviction Motion. No later than 90 days after the state files its answer to an initial motion, the trial court shall hold a case management conference. At the case management conference, both parties shall disclose all documentary exhibits that they intend to offer at the evidentiary hearing, provide an exhibit list of all such exhibits, and exchange a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be so specifically designated on the witness list, and copies of all expert reports shall be attached. At the case management conference, the trial court shall: (i) – (iii) (No Change) (B) – (D) (No Change) (6) – (7) (No Change) (g) – (h) (No Change) (i). Dismissal of Postconviction Proceedings. (1) A prisoner under sentence of death in this state, through counsel or pro se, may file a motion to discharge counsel and to dismiss pending postconviction proceedings. (2) The assigned judge shall review the motion and schedule it for hearing. The prisoner shall be present at the hearing. (3) The trial judge shall examine the prisoner at the hearing and, if it appears the prisoner is incompetent, shall order the prisoner to be examined by not fewer than two nor more than three qualified experts, who shall file reports with the court setting forth their findings. Thereafter, the court shall conduct an evidentiary hearing and enter an order setting forth findings of competency or incompetency. (4) The trial court shall not proceed if the defendant is found to be incompetent. (5) If the prisoner is found to be competent, the court shall conduct a complete (Durocher/Faretta)inquiry to determine whether the prisoner knowingly, freely and voluntarily wants to discharge counsel and dismiss pending post conviction proceedings. (6) If the court determines that the prisoner has made the decision to knowingly, freely and voluntarily discharge collateral counsel, the court shall enter an order discharging counsel and dismissing all post conviction proceedings. (7) A copy of the motion, the order, and the transcript of the hearing or hearings conducted on the motion shall be forwarded to the Clerk of the Supreme Court of Florida within thirty days. Court Commentary 2005 Amendment. The amendments provide for the appointment of Registry Counsel in areas of the state that are not served by a Capital Collateral Representative Counsel. Counsel are allowed to appear at hearings electronically to authorize both telephonic and video appearances.