# Supreme Court of Florida

_____________
No. SC11

- 1679

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IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE AND THE FLORIDA RULES OF APPELLATE PROCEDURE.

[December 5, 2013] CORRECTED OPINION

PER CURIAM.

Consistent with the orde rs entered in this case on December 5, 2013, the

opinion dated April 18, 2013, is withdrawn and this revised opinion is substituted

in its place.

BACKGROUND

The Supreme Court Criminal Court Steering Committee (Steering

Committee) and the Subcommittee on P ostconviction Relief (Subcommittee) have

filed a joint petition recommending amendments to Florida Rules of Criminal

Procedure 3.170 (Pleas), 3.800 (Correction, Reduction, and Modification of

Sentences), 3.850 (Motion to Vacate, Set Aside, or Correct Sente nce), and 3.851

(Collateral Relief after Death Sentence has been Imposed and Affirmed on Direct- 2

- Appeal), and recommending adoption of new Florida Rule of Criminal Procedure

3.801 (Correction of Jail Credit). We have jurisdiction. See art. V, § 2(a), Fla.

Const. The amendments we adopt here are the culmination of extensive study of

Florida’s postconviction relief process.

Among its 2010 charges, the Steering Committee was directed to review

Florida’s postconviction rules and, if necessary, recommend amen dments to the

Court. In re Criminal Court Steering Committee , Fla. Admin. Order No. AOSC10

-
34, at 2 (Jul. 1, 2010). To facilitate the Steering Committee’s charge, the

Subcommittee was established by the Court to “conduct a comprehensive review

of Florida Rule of Criminal Procedure 3.800 (Correction, Reduction, and

Modification of Sentences), Florida Rule of Criminal Procedure 3.850 (Motion to

Vacate, Set Aside, or Correct Sentence), and Florida Rule of Criminal Procedure

3.851 (Collateral Relief after Dea th Sentence has been Imposed and Affirmed on

Direct Appeal).” In re Subcommittee on Postconviction Relief , Fla. Admin. Order

No. AOSC10

- 40, at 1 (Jul. 2, 2010). The Subcommittee was directed to study the

recommendations made by the Commission on District Court of Appeal

Performance and Accountability and the Commission on Trial Court Performance

and Accountability pertaining to the postconviction relief process and Florida Rule- 3

- of Criminal Procedure 3.170( l ). Id. at 2; In re Subcommittee on Postconvictio n

Relief , Fla. Admin. Order No. AOSC10

- 53, at 1 (Oct. 6, 2010). 1

On October 10, 2011, the Steering Committee and the Subcommittee filed a

joint petition proposing multiple amendments to the postconviction rules and the

deletion of rule 3.170( l ). As expla ined in the joint petition, the proposed

amendments are “intended to more effectively control the filing of postconviction

motions by introducing greater finality and uniformity into what has become an

unwieldy postconviction process,” and to “achieve a ba lance between the rights of

the convicted defendants and the appropriate use of court resources.”

The Court published the proposals for comment in The Florida Bar News

. Several comments were filed, including comments from the Florida Public

Defender Asso ciation, the Florida Association of Criminal Defense Lawyers, The

Florida Bar’s Appellate Court Rules Committee and Criminal Procedure Rules

Committee, 2

1 . In addition to the extensive work undertaken by the Steering Committee and the Subcom mittee on behalf of the Court, the Court also recognizes the work of the Commission on District Court of Appeal Performance and Accountability, the Commission on Trial Court Performance and Accountability, and the Postconviction Rules Workgroup, which was created jointly by these Commissions “to consider and recommend changes in the procedural rules, administrative practices, and statutes that affect postconviction remedies.” Postconviction Rules Workgroup, Report of the Postconviction Rules Workgroup , at 3 (2006). and the Innocence Project of Florida, as well as from a number of

2 . Both rules committees were consulted by the Steering Committee prior to the filing of the joint petition. In its comment in response to the proposed criminal- 4

- individual commentors. The Steering Committee and the Subcommittee filed a

joint response to the comments. The Court heard oral argument on the proposals.

AMENDMENTS

Upon consideration of the proposed amendments, the comments and

response thereto, the matters discussed at oral argument, an d the motions for

rehearing properly before the Court, we adopt a number of the proposed

amendments, some with modifications, and we adopt several additional

amendments on our own motion. We also decline to adopt several proposals, as

further explained be low. 3

Rule 3.170( l ) (Motion to Withdraw the Plea after Sentencing)

The Steering Committee and the Subcommittee recommend the deletion of

rule 3.170( l ), which allows a defendant to file a motion to withdraw a plea of guilty

or nolo contendere within thirt y days of rendition of the sentence. The rule limits

the grounds properly raised to those set out in Florida Rule of Appellate Procedure

rule amendments, the Appellate Court Rules Committee proposed conforming amendmen ts to Florida Rules of Appellate Procedure 9.020 (Definitions), 9.140 (Appeal Proceedings in Criminal Cases), and 9.141 (Review Proceedings in Collateral or Post

- Conviction Criminal Cases). We consider these proposals here and adopt the conforming amendme nts to rules 9.140 and 9.141. Because we decline to eliminate rule 3.170( l ) as explained below, we also decline to adopt the proposed conforming amendment to rule 9.020.

3 . In addition to the amendments discussed herein, editorial and other minor amend ments are also made to rules 3.850 and 3.851. Subdivision (k) (Belated Discretionary Review) of rule 3.850 is eliminated, as proposed in the joint petition.- 5

- 9.140(b)(2)(A)(ii)(a)

- (e) except as provided by law. In proposing the deletion of

the rule, the Steering Committee an d the Subcommittee contend that most motions

brought under this rule are pro se and allege ineffective assistance of counsel, and

as such, present issues that would be better addressed on appeal or pursuant to rule

3.850. We disagree. To the extent that these claims fall within the grounds

allowable by the rule and are timely, adjudication of a motion to withdraw the plea

is preferable in the trial court and closer in time to entry of the plea. Accordingly,

we decline to eliminate rule 3.170( l ).

Rule 3.8 00 (Correction, Reduction, and Modification of Sentences)

The Steering Committee and the Subcommittee propose several amendments

to rule 3.800, including deleting the text of subdivision (a) (Correction) and

substantially amending subdivision (b) (Motion to Correct Sentencing Error). 4

Due to the concerns raised in the comments filed and at oral argument, we decline

to adopt these proposals. 5

4 . The Steering Committee and the Subcommittee also proposed an amendment to Florida Rule of Cri minal Procedure 3.800(c). However, subsequent to the filing of the joint petition, this amendment was adopted in another case. See In re Amendments to Florida Rule of Criminal Procedure 3.800(c) , 76 So. 3d 913, 914

- 15 (Fla. 2011). Consequently, the prop osal was withdrawn. However, we amend rule 3.800(a) to remove language

5 . While we decline to delete the text of rule 3.800(a), which, as amended by this opinion allows a court “at any time” to correct an illegal sentence or an incorrect scoresheet calculation, we ask the Florida Bar’s Criminal Procedu re Rules Committee, with input from the Steering Committee, to review the issue of- 6

- that would conflict with new rule 3.801, discussed below. In a ddition, we amend

rule 3.800(b) to add a provision governing the disposition of rehearing motions and

the effect such motions have on rendition of the order on a rule 3.800(b) motion.

As amended, the rule provides that a response may be filed within ten d ays of

service of a motion for rehearing, and a motion for rehearing must be disposed of

within fifteen days of the response but not later than forty days from the date of the

order for which rehearing is sought. If no order is filed within forty days, th e
motion for rehearing is deemed denied. In addition, it provides that a timely filed

motion for rehearing tolls rendition of the order subject to appellate review.

New Rule 3.801 (Correction of Jail Credit)

We adopt new rule 3.801 as proposed with a m inor modification. This new

rule governs the correction of a sentence that fails to allow county jail time credit

as provided in section 921.161, Florida Statutes (2012). The rule is intended to

prevent stale claims by requiring that jail credit issues b e brought within one year

of the sentence becoming final. Successive motions for jail credit are not allowed.

The rule also identifies the contents that must be included in a motion seeking such

relief and specifies that certain subdivisions of rule 3.85 0 are applicable to motions

under this rule. The rule provides a one

- year grace period for sentences imposed

prior to July 1, 2013.

successive rule 3.800(a) motions and propose a rule amendment restricting such motions.- 7

- Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence) 6

We amend rule 3.850 to address several issues identified by the

Postconviction Rules Workgroup and by the Steering Committee and the

Subcommittee in the joint petition. However, due to the concerns raised in the

comments and at oral argument, we decline to amend current subdivisions (a)

(Grounds for Motion) and ( b) (Time Limitations), and to adopt a new subdivision

(b), as proposed, the combined effect of which would have been to create separate

subdivisions of the rule governing conviction claims and sentencing claims. We

also decline to amend current subdivisio n ( l ) (Habeas Corpus), as proposed in the

joint petition.

We amend subdivision (c) (Contents of Motion) in several ways, as

proposed. First, it is amended to add the requirements that the motion be under

oath, stating that “the defendant has read the mot ion or that it has been read to him

or her, that the defendant understands its contents, and that all of the facts stated

therein are true and correct,” and that the motion explain whether the judgment

resulted from a plea or from a trial. Next, it is ame nded to require that newly

discovered evidence claims be supported by affidavits attached to the motion.

Lastly, it is amended to remove the language governing the form of the motion

6 . In the course of amending rule 3.850, some of the subdivisions have been redesig nated.- 8

- currently set out in the last paragraph and to move that language to new

subdivision (d) (Form of Motion). 7

Next, we add new subdivision (e) (Amendments to Motion). This new

subdivision is intended to codify existing case law on amendments to

postconviction motions and to comport with the amendments to current

subdivision (d ) (Procedure; Evidentiary Hearing; Disposition), discussed below.

These new provisions together are meant to further the ultimate goal of allowing

the trial court to adjudicate the merits of all sufficiently pleaded postconviction

claims in a single postc onviction proceeding, with a single final appealable order.

Current subdivision (d) (Procedure; Evidentiary Hearing; Disposition) is

substantially amended and is redesignated as (f). As amended, this subdivision

codifies existing case law and addresses t he different options that the trial judge

has when considering a motion under the rule, dependent upon such factors as the

timeliness of the motion, whether and to what extent the motion is sufficient,

whether and to what extent the motion is subject to di sposal on the record, whether

to obtain a response from the State, and whether counsel should be appointed. The

portion of this subdivision addressing disposition by evidentiary hearing is

amended to (1) require that the trial court cause notice of the ev identiary hearing to

7 . The Steering Committee and the Subcommittee recommend that the language addressing the form of the motion be moved to a new subdivision and that it also be modified to set forth additional requirements and restrictions and a shorter page limit. We decline to adopt the proposed modifying language.- 9

- be served not only on the state attorney but also on the defendant or the

defendant’s counsel; (2) expressly provide that the defendant bears the burden of

presenting evidence at the evidentiary hearing and the burden of proof upon the

motion unless otherwise provided by law; and (3) require that the order issued by

the trial court after the evidentiary hearing resolve all claims raised and be

considered the final order for purposes of appeal. Additionally, language directing

the court to vacate and set aside the judgment and to discharge, resentence, grant a

new trial, or correct a sentence upon finding in favor of the defendant is deleted.

Next, current subdivision (e) (Movant’s Presence Not Required) is

redesignated as (g), retitled as “Defendant’s Presence Not Required,” and is

amended, as proposed, to clarify that the defendant’s presence is required only at

an evidentiary hearing on the merits of any claim.

Current subdivision (f) (Successive Motions) is redesignated as (h) and i s
substantially rewritten. We adopt new subdivision (h)(1), requiring, as proposed,

that a second or successive motion be titled “Second or Successive Motion for

Postconviction Relief.” In addition, we retain with some modification the current

language a s subdivision (h)(2), which pertains to dismissals of a second or

successive motion.- 10

- Current subdivision (g) (Service on Parties) is redesignated as (i) and is

amended, as proposed, to clarify that the clerk of court must serve on the parties a

copy of any order issued in the rule 3.850 proceeding.

Next, current subdivision (h) (Rehearing) is redesignated as (j), and is

amended to state that a motion for rehearing in rule 3.850 proceedings is not

necessary to preserve an issue for appeal and to include the requirement that the

motion be “based on a good faith belief that the court has overlooked a previously

argued issue of fact or law or an argument based on a legal precedent or statute not

available prior to the court’s ruling.” Additionally, on our o wn motion, we amend

this subdivision to provide time limitations for the response to and the disposition

of a motion for rehearing. These amendments are intended to facilitate the trial

court’s correction of an obvious error without the expense or delay o ccasioned by

an appeal.

Current subdivision (i) (Appeals) is redesignated as (k) and is amended to

clarify that only the final order disposing of the motion for postconviction relief is

appealable. To that end, the amended rule requires final orders deny ing a rule

3.850 motion to state that the defendant has the right to appeal within thirty days of

rendition of the order and further provides that all nonfinal, nonappealable orders

should state that the defendant has no right to appeal the order until ent ry of the

final order.- 11

- On our own motion, we amend current subdivision (j) (Belated Appeals).

The subdivision is redesignated subdivision ( l ) (Belated Appeals and Discretionary

Review), to include the provision for belated discretionary review based on t he

elimination of current subdivision (k) (Belated Discretionary Review) as proposed.

Finally, we adopt new subdivision (n) (Certification of Defendant;

Sanctions), which replaces current subdivision (m) (Frivolous or Malicious

Collateral Criminal Pleadin gs or Motions), which is deleted. New subdivision (n)

is a complete rewrite of the subdivision addressing frivolous or malicious filings

by defendants. The provision is intended to require postconviction defendants to

take formal steps that communicate t he significance of filing a document with a

court and to set forth a sanction mechanism to deter frivolous postconviction

motions, thus protecting the courts and other litigants from abuse of the

postconviction process. We have modified the provision to a lso apply to the filing

of an improper habeas petition seeking relief that should be or was sought by

motion under rule 3.850.

Rule 3.851 (Collateral Relief after Death Sentence has been Imposed and Affirmed on Direct Appeal)

The proposed amendments to r ule 3.851, governing postconviction motions

in capital cases, are relatively minor. 8

8 . The proposal to amend rule 3.851(f) to substitute the word “paper” with the word “document” was previously adopted in In re Amendments to the Florida We adopt the amendments as proposed.- 12

- Subdivision (b) of the rule is amended to substitute the phrase “Justice

Administrative Commission” for the phrase “Commission on Ca pital Cases.” New

subdivision (c)(5) (Record on Appeal) is adopted to facilitate the timely transfer of

the record on appeal from this Court to the records repository after the appointment

of postconviction counsel. Lastly, subdivision (f)(5) (Case Manag ement

Conference; Evidentiary Hearing) is amended to shift the timing of discovery for

the State and to extend the time for the trial court to hold an evidentiary hearing.

CONCLUSION

Accordingly, the Florida Rules of Criminal Procedure and the Florida Rul es
of Appellate Procedure are hereby amended as reflected in the appendix to this

opinion. New language is indicated by underscoring; deletions are indicated by

struck

- through type. The Court Commentary is offered for explanation only and is

not adopted as an official part of the rules. The amendments shall become

effective nunc pro tunc on July 1, 2013, at 12:01 a.m.

We thank the Florida Supreme Court Criminal Court Steering Committee

and the Postconviction Relief Subcommittee for their hard work and t horough

recommendations. We also thank the Commission on District Court of Appeal

Rules of Civil Procedure, the Florida Rules o f Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure

— Electronic Filing , 102 So. 3d 451 (Fla. 2012).- 13

- Performance and Accountability, the Commission on Trial Court Performance and

Accountability, and their Postconviction Rules Workgroup for the essential

contributions made t o this effort to refine the postconviction relief process. We

also express our appreciation to the Florida Public Defender Association, the

Florida Association of Criminal Defense Lawyers, The Florida Bar’s Appellate

Court Rules Committee and Criminal Pro cedure Rules Committee, the Innocence

Project of Florida, and the individual commentors who provided the Court with

valuable input.

It is so ordered.

LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, C.J., concurs in part and dissents in part. P ARIENTE, J., concurs in part and dissents in part with an opinion. CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, C.J., concurs.

NO MOTION FOR REHEARING WILL BE ALLOWED.

PARIENTE, J., concurring in part and dissent ing in part.

I commend the extensive work that has been done by the members of the

various committees, who over many years have endeavored to improve the

postconviction process. I write to address the amendments to the Rules of

Criminal Procedure that th e Court now adopts and to explain my view that along

with these rule changes, the criminal justice system must give serious- 14

- consideration to other innovations, such as the use of standard forms and evolving

technology, to further improve the postconviction process.

I. The New Amendments

With respect to the amendments adopted by the Court today, I agree with the

majority’s decision, except as follows. First, as to newly adopted rule 3.801 that

limits the time for correction of jail credit to one year aft er the sentence becomes

final, although I would consider some limitations on the filing of successive

motions, I continue to adhere to the view that a defendant should never be required

to serve any more time in prison than he or she is legally required to serve. As I

stated in my concurring in result only opinion in State v. McBride , this Court has

observed “that the State recognizes that it ‘has no interest in any defendant serving

a sentence that is longer than the sentence authorized by law.’ ” 848 So . 2d 287,

294 (Fla. 2003) (Pariente, J., concurring in result only) (quoting Maddox v. State

, 760 So. 2d 89, 99 (Fla. 2000)). Indeed, I explained in McBride that “the entire

justice system certainly has an interest in ensuring that the defendant is not

in carcerated longer than is authorized by law, or under illegal terms. The courts

have an obligation to correct any such error whenever it is brought to their

attention.” Id. (Pariente, J., concurring in result only).

In this regard, a sentence not grant ing “proper credit for time served” was

deemed so important that it was specifically mentioned in rule 3.800(a) as an error- 15

- that could be corrected at any time. Fla. R. Crim. P. 3.800(a). As this Court held

in State v. Mancino :

[S]ince a defendant is en titled to credit for time served as a matter of law, “common fairness, if not due process, requires that the State concede its error and correct the sentence ‘at any time.’ ” For that reason, a prisoner should ordinarily first seek prompt administrative

r elief in the corrections system before going to the circuit court for relief under rule 3.800(a), mandamus or habeas corpus. Of course, the trial court and counsel for the State and the defendant should be alert to see that provision is always made in sen tencing for a defendant to receive credit for all time already served
714 So. 2d 429, 433 (Fla. 1998) (emphasis supplied) (citation omitted) (quoting

Chojnowski v. State , 705 So. 2d 915, 918 (Fla. 2d DCA 1997) (Altenbernd, J.,

concurring specially)). .

I ag ree with the comments filed by the Florida Public Defender Association

(FPDA) that the special procedure for jail credit adopted through rule 3.801 is

“unnecessarily restrictive” and that it would make more sense to instead utilize rule

3.800(b) and rule 3 .850 to correct these errors. As the FPDA also points out,

newly adopted rule 3.801 eliminates a court’s power after one year to correct errors

even obvious on the face of the record and apparently eliminates the “manifest

injustice” exception to litigati ng an otherwise barred claim. In addition, valid

concerns have been raised as to whether this new rule addresses only county jail

credit or all credit issues.- 16

- Further, the requirement in rule 3.801 of a one

- year time limitation on the

filing of a motion to correct jail credit from the time the sentence becomes final

means that these motions must now be filed sooner than motions to vacate, set

aside, or correct a sentence under rule 3.850. At the very least, I believe that the

time for filing a motion to correct a sentence due to improperly calculated jail

credit should be expanded to correspond with the time limitations in rule 3.850.

Not only is jail credit now removed from the scope of rule 3.800(a), but the

pleading requirements of newly enacted rule 3.801 place the burden entirely on the

defendant, who will most likely be unrepresented at this stage of the proceedings.

In my view, the simplest solution to the problem sought to be remedied through the

adoption of rule 3.801 would be to have a procedur e at the time of sentencing to

ensure the accurate calculation of credit for time served. Advancements in

technology certainly make this an achievable goal.

With the adoption of rule 3.801 and the strict time limits imposed, defense

counsel and prosecut ors, as well as the trial courts, should take steps to ensure that

the calculation of jail credit is accurate at the time of sentencing. Indeed, such an

approach has always been the best way to limit subsequent challenges based on jail

credit and to ensur e the accuracy of the sentence imposed. Specifically, Judge

Altenbernd of the Second District Court of Appeal brought this issue into focus

over fifteen years ago:- 17

- Many, if not most, jail credit issues do not appear on the face of the record available to the trial court. Either the trial court does not have access to the jail records described by the prisoner or the prisoner is claiming a factual error in those records. There is no valid reason to allow such factual issues to be raised at any time in an unsworn motion. Thus, rule 3.850 currently provides the best procedure for a prisoner to resolve jail credit issues because it allows for a sworn pleading and the orderly resolution of factual disputes relating to sentencing. These motions, however, canno t be filed during the pendency of an appeal. At least in this district, with our public defender’s backlog, unless the defendant chooses to forego his or her constitutional right to appeal, it will be difficult for the trial court to resolve a factual iss ue relating to jail credit before the prisoner fully serves any sentence that is less than 3 years’ imprisonment. Even if the trial court manages to reach the issue in time, a delayed evidentiary hearing is a highly inefficient method to resolve jail cred it problems. I do not profess to be an expert on the best methods to record and calculate jail credit. I do know, however, that the Department of Corrections already calculates prison credit when a trial judge checks the box for prison credit on the writt en sentence. In this computer age, the legislature could authorize the Department to obtain statewide records for use in all cases. I believe the trial court should at least have the option of allowing the Department to calculate jail credit in complex c ases. This certainly would be better than forcing trial judges to scribble calculations while reciting “thirty days hath September” at every sentencing hearing. If it is not feasible for the legislature to delegate this task to the Department, then the su preme court should consider the creation of a specific rule of procedure to allow these matters to be processed in the trial courts and reviewed on appeal in a timely and efficient manner.

Chojnowski , 705 So. 2d at 918

- 19 (Altenbernd, J., concurring spec ially)

(footnotes omitted). I am simply not convinced that the new procedure for jail

credit the Court adopts today will allow these issues to be processed in a timely- 18

- and efficient manner, or that rule 3.801 adequately preserves a defendant’s right to

ne ver have to serve more time in prison than legally required.

Second, as to the change to rule 3.850(c) that requires the attachment of an

affidavit for all newly discovered evidence claims, although I agree with the

requirement, I am also concerned that t here may be real limits on an unrepresented

prisoner’s ability to obtain a properly executed affidavit. I therefore urge the trial

courts to liberally construe the alternative provision that if the affidavit is not

attached to the motion, “the defendant s hall provide an explanation why the

required affidavit could not be obtained.”

Third, as to the changes to current subdivision rule 3.850(d), which is now

designated as subdivision (f), I concur with the adoption of this substantially

amended subdivision with the express understanding that the amended subdivision

codifies existing law and is not intended to change the law, as set forth in the

commentary to the 2012 amendment. Finally, the same caveat applies to the

subdivision now designated as rule 3.850 (g).

II. Broader Considerations

As to the larger picture, the goal of both the committee members and this

Court has been to streamline the postconviction process and to limit the filing of

successive motions, while concomitantly preserving the rights of c onvicted

defendants. Against this backdrop is the reality that the vast majority of those- 19

- prisoners filing postconviction motions are unrepresented and, because of

limitations on access to computers and typewriters, the majority of the petitions

this Cour t and other courts receive are handwritten

— and oftentimes even illegible.

History and experience reveal that the majority of the pro se filings in

postconviction proceedings, appeals, and original writs at all levels of the court

system, including the Flo rida Supreme Court, are without merit. A number of

these filings are successive and frivolous, representing an abuse of the process.

The further truth of the matter is that as defendants in Florida have increasingly

been subject to lengthier prison terms , including mandatory minimums, courts

have seen an increase in the number of postconviction filings.

The amount of postconviction filings received in each of Florida’s five

district courts of appeal, for instance, has increased dramatically over the las t two

decades. In the fiscal year 1992

- 93, the First District Court of Appeal received 358

postconviction filings and the Second District Court of Appeal received 650. By

2011

- 12, however, those numbers had essentially tripled, with the First District

re ceiving 1,178 postconviction filings and the Second District receiving a district

court high of 1,825.

This same pattern is evident in the number of circuit court filings for

postconviction relief. Individual circuits have almost universally experienced an
increase in postconviction filings over the last decade alone. In the fiscal year- 20

- 2002

- 03, Florida’s twenty circuits received a total of 10,005 motions for

postconviction relief. In 2011

- 12, the circuit courts received almost twice as many

postconvic tion filings

— 18,681.

Despite this objective reality, however, we must always remember another

essential truth about our system of justice: that, among the avalanche of

postconviction filings, there always exists the possibility of a defendant who in fact

is entitled to relief, either from his or her conviction or from the sentence

—
including the possibility of actual innocence or credible newly discovered evidence

that sheds doubt on the validity of the conviction. Thus, I am convinced that, on

the front end, mandating and adopting standard forms for prisoners to use and

exploring electronic filing of postconviction petitions would be two significant

steps toward our ultimate goal of reforming an “unwieldy postconviction process”

while achieving a “balance between the rights of the convicted defendants and the

appropriate use of court resources.” Majority op. at 3. I believe that standard

forms and electronic filing would increase efficiency by enabling courts to track

postconviction filings by individua l prisoners, more easily ensuring that the

process is not being abused and that multiple levels of courts are not reviewing the

same filings, and reducing the possibility that a petition with merit is overlooked in

the avalanche of pro se filings courts no w receive.- 21

- Because the ultimate issue is the efficient, effective, timely, and fair

administration of justice, I also note that, in the 2006 Report of the Postconviction

Rules Workgroup, the Committee consisting of trial and appellate court judges

observe d that the addition of forms for use by prisoners, as well as the ability to

handle these filings electronically, would be two ways that the judicial system

could balance efficiency with fairness. As set forth in the report authored by Judge

Altenbernd:

Just as a more extensive collection of form motions and orders was required to assist pro se litigants in family law cases, the Workgroup believes that more extensive forms are needed to assist the litigants and the courts in processing postconviction proc eedings It is often cumbersome and time

- consuming to amend rules of procedures. Forms can be more readily adjusted. The law of postconviction is frequently affected by an issue that generates many motions for a short period of time. . . . .

There is li ttle question that a significant percentage of all motions filed by prisoners have little or no merit. The typical prisoner, however, is untrained in the law, given no adequate form pleadings, and is represented, at best, by other prisoners with limited
p aralegal training or experience. It is often difficult or impossible to distinguish between a prisoner who is ignorant of the law and one who is filing motions in bad faith. The fact that a prisoner often has limited education and may suffer from mental illness makes this process even more difficult This state wisely has a constitutional provision that guarantees “every person” access to the courts. Art. I, § 21, Fla. Const. Nevertheless, the courts must occasionally take steps to sanction or control people who abuse this constitutional right. Within the Workgroup, it was obvious that the members who deal directly with the prisoners in the trial courts feel a strong need to have the power of sanction. Those who deal indirectly with the prisoners in t he appellate court are more skeptical about the efficacy of sanctions in this context. It remains at least debatable whether the additional judicial process .- 22

- required in the trial courts to impose sanctions and the inevitable appeals that would arise from additional sanction orders might create costs that outweigh the benefit of sanctions. If the rules were changed and more forms were created to simplify the legal tasks expected of prisoners, it would be easier to identify the prisoners who should be sancti oned

. . . . . . . . Because prisoners have essentially no access to computer technology, their motions cannot currently be filed electronically. The courts must serve orders on prisoners by standard mail. The requirement that the trial court attach c ourt records to refute conclusively the allegations in the motion results in massive copying. This is an expensive and inefficient way to process postconviction motions. It was workable and necessary in 1988, but it is no longer the best method to manage this case load. The Workgroup is making no recommendation in Appendix A to solve this problem, in part, because the technology required to solve this problem is beyond our expertise and, in part, because the Department of Corrections would need to be a wi lling partner in solving this problem. It should be emphasized that appellate proceedings filed by prisoners are now approximately one

- third of all filings in the district courts. An electronic filing system in the trial courts and appellate courts canno t achieve maximum efficiency until filings from prisoners are received electronically

. Comm. on Performance & Accountability, Report of the Postconviction Rules

Workgroup 10

- 13 (Sept. 1, 2006) (on file with Court Adm’r, Fla. Sup. Ct.)

(emphasis supplied).

The observations made by the Postconviction Rules Workgroup in 2006 are

as true today as they were almost seven years ago when the report was issued.

Without improving efficiency in the process, including requiring prisoners to file

postconviction motio ns electronically through the use of specified forms, as well as

an examination of best practices throughout the circuits, including the entry of a- 23

- written sentence on the day it is pronounced, the judicial system will continue to

struggle with the enormou s workload and concomitant responsibility placed on all

of those who are committed to the fair and efficient administration of justice. 9

III. Conclusion I

urge the Department of Corrections, together with the court system, to explore

ways in which electronic filing could lessen the workload and increase efficiency

for all those involved in this process.

Accordingly, for the reasons stated, I concur in part and dissent in part with

respect to the Court’s adoption of these amendments to the Rules of Crimin al

Procedure. In addition, I thank the committee members for their diligent work to

improve the postconviction process and stress that the broader considerations I

have outlined here should remain a focus of all those who seek fairness and

efficiency in o ur criminal justice system.

9 . A further examination might be helpful in analyzing whether any of the reasons that have given rise to the massive increase in postconviction filings could be influenced by local best practices. For examp le, an analysis of the 18,681 filings of motions for postconviction relief in the circuit courts in the fiscal year 2011

- 12 revealed a huge disparity in the filings among the various circuits. The Eleventh Circuit had a high among the twenty circuits of 5 ,313 filings, with the Seventeenth Circuit coming in a close second at 4,840 filings. Other large circuits like the Ninth, Thirteenth, and Fifteenth had only, respectively, 475, 412, and 606 filings in that same time period. There may be easily explainab le reasons for the glaring disparities between these circuits, but the large variance is certainly reason for further study.- 24

- CANADY, J., concurring in part and dissenting in part.

I disagree with the majority’s decision to reject the proposed deletion of rule

3.170( l ). On balance, I believe it would be more consistent with the effective and

efficie nt administration of justice to address the issues brought under this rule in

the context of rule 3.850 proceedings. Otherwise, I concur with the majority

opinion.

POLSTON, C.J., concurs.

Original Proceeding

– Criminal Courts Steering Committee, Florida Criminal Procedure Rules Committee and Florida Appellate Rules Committee

Honorable Kevin M. Emas, Chair, Criminal Courts Steering Committee, Miami, Florida, and Bart Schneider, Senior Attorney, Office of State Courts Administrator, Tallahassee, Florida; J ohn F. Harkness, Jr., Executive Director and Heather Savage Telfer, Bar Liaison, The Florida Bar, Tallahassee, Florida and the Honorable James C. Hankinson, Chair, Post

- Conviction Relief Subcommittee, Tallahassee, Florida,

for Petitioner

Mark Caliel, Cha ir, Criminal Procedure Rules Committee, Jacksonville, Florida, the Honorable Donald Eugene Scaglione, Past Chair, Criminal Procedure Rules Committee, Brooksville, Florida, Michael Robert Ufferman, Chair, Appellate Court Rules Committee, Tallahassee, Florid a, Jamie Billotte Moses, Past Chair, Appellate Court Rules Committee, Orlando, Florida, Seth Elliot Miller and Michael J. Minerva of the Innocence Project of Florida, Tallahassee, Florida, Scott N. Errico, Jonathan N. Diament and David W. Talley, Sumter Co rrectional Institution, Bushnell, Florida, Glen Phillip Gifford and Andrew McBride Stanton of the Florida Public Defender Association, Tallahassee, Florida, Sonya Rudenstine of the Florida Association of Criminal Defense Lawyers, Gainesville, Florida, Joe F. Daiak, Jr. of Lake Correctional Institution, Clermont, Florida and Reginal L. Holston of South Bay Correctional Institution, South Bay, Florida,

Responding with comments- 25

- APPENDIX

RULE 3.800

. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES

(a) Correction . A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that th e court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal. A defendant may seek correction of an allegedly erroneous sexual predator designation under this subdivision, but only when it is apparent from the face of the record that the defendant did not meet the criteria for desig nation as a sexual predator. All orders denying motions under this subdivision shall include a statement that the movant has the right to appeal within 30 days of rendition of the order.

(b) Motion to Correct Sentencing Error. A motion to correct any sentencing error, including an illegal sentence

, may be filed as allowed by this sub

division. This subdivision shall not be applicable to those cases in which the death sentence has been imposed and direct appeal jurisdiction is in the Supreme Court unde r article V, section 3(b)(1) of the Florida Constitution. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days, either admitting or contesting the alleged error. Moti ons may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.

(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.

(A) This motion shall stay rendition under Florida Rule of Appellate Procedure 9.020( h i ).

(B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold a calendar call no later- 26

- than 20 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 20 days from the date of the calendar call. Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the mo tion shall be considered denied. A party may file a motion for rehearing of any order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed. A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the or der of which rehearing is sought. If no order is filed within 40 days, the motion is deemed denied. A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered 40 days from the order of which rehearing is sought, or upon the filing of a written order denying the motion for rehearing, whichever is earlier.

(2) [No Change]

(c) [No Change]

Committee Notes [No Change]

Court Commentary [No Change]

RULE 3.801. CORRECTION OF JA IL CREDIT

(a) Correction of Jail Credit. A court may correct a sentence that fails to allow a defendant credit for all of the time he or she spent in the county jail before sentencing as provided in section 921.161, Florida Statutes.

(b) Time Limitatio ns. No motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final. For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.

(c) Contents of Mo tion. The motion shall be under oath and include:- 27

- (1) a brief statement of the facts relied on in support of the motion;

(2) the dates, location of incarceration and total time for credit already provided;

(3) the dates, location of incarceration and total time for credit the defendant contends was not properly awarded;

(4) whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number and resolution of the charges; an d

(5) whether the defendant waived any county jail credit at the time of sentencing, and if so, the number of days waived.

(d) Successive Motions. No successive motions for jail credit will be
considered.

(e) Incorporation of Portions of Florida Rule o f Criminal Procedure 3.850. The following subdivisions of Florida Rule of Criminal Procedure 3.850 apply to proceedings under this rule: 3.850(e), (f), (j), ( k ), and (n).

Court Commentary

2013 Adoption. All jail credit issues must be handled pursuant to this rule. The rule is intended to require that jail credit issues be dealt with promptly, within 1 year of the sentence becoming final. No successive motions for jail credit will be allowed.

RULE 3.850. MOTION TO VACATE, SET ASIDE, OR CORRECT SENTEN CE

(a)

– (b) [No Change]

(c) Contents of Motion. The motion shall must be under oath and stating that the defendant has read the motion or that it has been read to him or her, that the defendant understands its content, and that all of the facts stated therein are true and correct. The motion must also include an explanation of :- 28

- (1) the judgment or sentence under attack and the court which that rendered the same;

(2) whether the judgment resulted from a plea or a trial;

( 2 3 ) whether there was an appea l from the judg ment or sentence and the disposition thereof;

( 3 4 ) whether a previous postconviction motion has been filed, and if so, how many;

( 4 5 ) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the presen t motion were not raised in the former motion or motions;

( 5 6 ) the nature of the relief sought; and

( 6 7 ) a brief statement of the facts ( and other conditions ) relied on in support of the motion.

This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and
sentence. Motions shall be typewritten or hand

- written in legible printed lettering, in blue or black ink, double

- spaced, with margins no less than 1 inch on white 8 1/2

- by

- 11 inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause. If the defendant is filing a newly discovered evidence claim based on recanted trial
t estimony or on a newly discovered witness, the defendant shall include an affidavit from that person as an attachment to his or her motion. For all other newly discovered evidence claims, the defendant shall attach an affidavit from any person whose testi mony is necessary to factually support the defendant’s claim for relief. If the affidavit is not attached to the motion, the defendant shall provide an explanation why the required affidavit could not be obtained.

(d) Form of Motion. Motions shall be t ypewritten or hand

- written in legible printed lettering, in blue or black ink, double

- spaced, with margins no less than 1 inch on white 8 1/2

- by

- 11 inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court up on a showing of good cause.- 29

- (e) Amendments to Motion. When the court has entered an order under subdivision (f)(2) or (f)(3), granting the defendant an opportunity to amend the motion, any amendment to the motion must be served within 60 days. A motion may otherwise be amended at any time prior to either the entry of an order disposing of the motion or the entry of an order pursuant to subdivision (f)(5) or directing that an answer to the motion be filed pursuant to (f)(6), whichever occurs first. Leav e of court is required for the filing of an amendment after the entry of an order pursuant to subdivision (f)(5) or (f)(6). Notwithstanding the timeliness of an amendment, the court need not consider new factual assertions contained in an amendment unless the amendment is under oath. New claims for relief contained in an amendment need not be considered by the court unless the amendment is filed within the time frame specified in subdivision (b).

( d f ) Procedure; Evidentiary Hearing; Disposition. On fili ng of a rule 3.850 motion under this rule , the clerk shall forward the motion and file to the
court. Disposition of the motion shall be in accordance with the following procedures, which are intended to result in a single, final, appealable order that dis poses of all claims raised in the motion.

(1) Untimely and Insufficient Motions. If the motion is insufficient on its face, and the time to file a motion under this rule has expired prior to the filing of the motion, the court shall enter a final appeala ble order summarily denying the motion with prejudice.

(2) Timely but Insufficient Motions. If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the def endant 60 days to amend the motion. If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunit y to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice.

(3) Timely Motions Containing Some Insufficient Claims. If the motion sufficiently states one or more claims for relief and it also attempts but fai ls to state additional claims, and the motion is timely filed under this rule, the court shall enter a nonappealable order granting the defendant 60 days to amend the motion to sufficiently state additional claims for relief. Any claim for which the insuf ficiency has not been cured within the time allowed for such amendment shall- 30

- be summarily denied in an order that is a nonfinal, nonappealable order, which may be reviewed when a final, appealable order is entered.

(4) Motions Partially Disposed of by the Court Record. If the motion sufficiently states one or more claims for relief but the files and records in the case conclusively show that the defendant is not entitled to relief as to one or more claims, the claims that are conclusively refuted shall be summarily denied on the merits without a hearing. A copy of that portion of the files and records in the case that conclusively shows that the defendant is not entitled to relief as to one or more claims shall be attached to the order summarily denying t hese claims. The files and records in the case are the documents and exhibits previously filed in the case and those portions of the other proceedings in the case that can be transcribed. An order that does not resolve all the claims is a nonfinal, nonap pealable order, which may be reviewed when a final, appealable order is entered.

(5) Motions Conclusively Resolved by the Court Record. If the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of l aw or by reliance upon the records in the case, the motion shall be denied without a hearing by the entry of a final order. If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.

(6) Motions Requiring a Response from the State Attorney. If

Unless the motion, files, and records in the case conclusively show that the
movant defendant is entitled to no relief, t he motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file

, within the time fixed by the court, an answer or othe r pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate the motion . The answer shall respond to the allegations of the contained in the defendant’s sufficiently pleaded claims, describe any matter s in avoidance of the sufficiently pleaded claims, state whether the defendant has used any other available state postconviction remedies including any other motion under this rule, and state whether the defendant has previously been afforded an evidentiar y hearing

. In addition it shall state whether the movant has used any other available state remedies including any other postconviction motion under this rule. The- 31

- answer shall also state whether an evidentiary hearing was accorded the movant. If the mot ion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion.

(7) Appointment of Counsel. The court may appoint counsel to represent the defendant under this rule. The factors to be considered by the court in making this determination include: the adversary nature of the proceeding, the complexity of the proceeding, the complexity of the claims presented, the defendant’s apparent level of intelligence and education, the need for an evidentiary hearing, and the need for substantial legal research.

(8) Disposition by Evidentiary Hearing.

(A) If an evidenti ary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney and the defendant or defendant’s counsel

, and shall determine the issues, and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the c onstitutional rights of the movant as to render the judgment vulnerable to collateral attack, the court shall vacate and set aside the judgment and shall discharge or resentence the movant, grant a new trial, or correct the sentence as may appear appropria te.

(B) At an evidentiary hearing, the defendant shall have the burden of presenting evidence and the burden of proof in support of his or her motion, unless otherwise provided by law.

(C) The order issued after the evidentiary hearing shall resolve a ll the claims raised in the motion and shall be considered the final order for purposes of appeal.

( e g ) Movant’s Defendant’s Presence Not Required. A court may entertain and determine the motion without requiring the production of the movant at the hearin g. The defendant’s presence shall not be required at any hearing or conference held under this rule except at the evidentiary hearing on the merits of any claim.- 32

- ( f

h ) Successive Motions.

(1) A second or successive motion must be titled: “Second or Success ive Motion for Postconviction Relief.”

(2) A second or successive motion is an extraordinary pleading. Accordingly, a court may dismiss a second or successive motion if the court may be dismissed if the judge finds that it fails to allege new or differen t grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules or there was no good cause for the failure of the defendant or defendant’s counsel to have asserted those grounds in a prior motion. When a motion is dismissed under this subdivision, a copy of that portion of the files a nd records necessary to support the court’s ruling shall accompany the order denying the motion

. ( g i ) Service on Parties. The clerk of the court shall promptly serve on the parties a copy of any order addressing a motion entered under this rule, noting
t hereon the date of service by an appropriate certificate of service.

( h j ) Rehearing. The Any party may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order. A motion f or rehearing is not required to preserve any issue for review in the appellate court. A timely filed motion for rehearing shall toll finality of any final order addressing a motion under this rule. A motion for rehearing must be based on a good faith bel ief that the court has overlooked a previously argued issue of fact or law or an argument based on a legal precedent or statute not available prior to the court’s ruling. A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. If no order is filed within 40 days, the motion is deemed denied.

( i k ) Appeals. An appeal may be taken to the appropriate appellate court only from a the final order addressing a disposing of the motion under this rule . All final orders addressing a denying motion s under this rule for postconviction relief shall include a statement that the party defendant has the right to appeal within 30 days of the rendition of the final order. All nonfinal , nonappealable orders addressing motions under this rule shall entered pursuant to subdivision (f) should- 33

- include a statement that “this order is a nonfinal, nonappealable the defendant has no right to appeal the order until entry of the final order

. ”

( j l ) Belated Appeals and Discretionary Review

. Pursuant to the terms and procedures outlined in Florida Rule of Appellate Procedure 9.141 (c) , a petiti oner defendant may seek a belated appeal or discretionary review

.
(k) Belated Discretionary Review. Pursuant to the terms and procedures outline in Florida Rule of Appellate Procedure 9.141(c), a petitioner may seek belated discretionary review.

( l m ) Habeas Corpus. [No Change]

(m) Frivolous or Malicious Collateral Criminal Pleadings or Motions. A prisoner, who is found by a court to have brought a frivolous or malicious collateral criminal proceeding, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The prisoner may also be prohibited from filing future pro se pleadings attacking his or her c onviction and sentence.

Upon its own motion or on motion of a party, the court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith by issuing an order stating the essential facts constituting the frivol ous or malicious nature of the collateral criminal proceeding, requiring the defendant to show cause why the prisoner should not be prevented from bringing further attacks on his or her conviction and sentence, and to explain why he or she is not abusing
t he legal process. The order shall allow a reasonable time for preparation and response by the prisoner, after service of the order on the prisoner. The court shall direct the clerk of the court to forward a certified copy of the order to show cause to th e prisoner.

Upon receipt of the prisoner’s response to the order to show cause, if any, or upon expiration of the time allowed for the prisoner’s response, the court shall determine whether the pleading or paper was frivolous or malicious. If supported b y the record, the court shall enter an order with written findings that a motion for postconviction relief is frivolous or malicious, preventing the prisoner from bringing further attacks on his or her conviction and sentence, directing the clerk of the co urt not to accept any further pro se filings or pleadings concerning the subject case, further directing the clerk of the court to summarily reject any further- 34

- pleadings and papers regarding the case unless that pleading or paper is filed by a member in go od standing of The Florida Bar, and that a certified copy of the order be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in Chapter 944, Florida Statutes. The prisoner s hall also be served with a certified copy of the written order.

(n) Certification of Defendant; Sanctions. No motion may be filed pursuant to this rule unless it is filed in good faith and with a reasonable belief that it is timely, has potential merit, and does not duplicate previous motions that have been disposed of by the court.

(1) By signing a motion pursuant to this rule, the defendant certifies that: the defendant has read the motion or that it has been read to the
defendant and that the defenda nt understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.

(2) The defendant shall either certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understa nds. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant. Failure to include
this information and certification in a motion shall be grounds for the entry of an order dismissing the motion pursuant to subdivision (f)(1), (f)(2), or (f)(3).

(3) Conduct prohibited under this rule includes, but is not limited to, the following: the filing of frivolous or malicious cla ims; the filing of any motion in bad faith or with reckless disregard for the truth; the filing of an application for habeas corpus subject to dismissal pursuant to subdivision (m); the willful violation of any provision of this rule; and the abuse of the legal process or procedures governed by this rule.

The court, upon its own motion or on the motion of a party, may determine- 35

- whether a motion has been filed in violation of this rule. The court shall issue an order setting forth the facts indicating that the defendant has or may have engaged in prohibited conduct. The order shall direct the defendant to show cause, within a reasonable time limit set by the court, why the court should not find that the defendant has engaged in prohibited conduct under thi s rule and impose an appropriate sanction. Following the issuance of the order to show cause and the filing of any response by the defendant, and after such further hearing as the court may deem appropriate, the court shall make a final determination of w hether the defendant engaged in prohibited conduct under this subsection.

(4) If the court finds by the greater weight of the evidence that the defendant has engaged in prohibited conduct under this rule, the court may impose one or more sanctions, includ ing:

(A) contempt as otherwise provided by law;

(B) assessing the costs of the proceeding against the defendant;

(C) dismissal with prejudice of the defendant’s motion;

(D) prohibiting the filing of further pro se motions under this rule and directing the clerk of court to summarily reject any further pro se motion under this rule;

(E) requiring that any further motions under this rule be signed by a member in good standing of The Florida Bar, who shall certify that there is a good faith basis for each claim asserted in the motion; and/or

(F) if the defendant is a prisoner, a certified copy of the order be forwarded to the appropriate institution or facility for consideration of disciplinary action against the defendant, including forfeiture of gain ti me pursuant to Chapter 944, Florida Statutes.- 36

- (5) If the court determines there is probable cause to believe that a sworn motion contains a false statement of fact constituting perjury, the court may refer the matter to the state attorney.

Committee Note s [No Change]

Court Commentary

1996 Court Commentary. [No Change]

2013 Amendment.

Rule 3.850 has been revised to address several issues identified by the Postconviction Rules Workgroup in 2006 and by the Criminal Court Steering Committee and the Subc ommittee on Postconviction Relief in 2011.

Rule 3.850(d). New subdivision (d) is derived from the final two sentences formerly contained in subdivision (c).

Rule 3.850(e). Subdivision (e) was added to codify existing case law on amendments to postconvi ction motions and to comport with subdivision (f).

Rule 3.850(f). Subdivision (f) attempts to set out each of the different options that a trial judge has when considering a motion under this rule. It reflects the timeframe requirement of subdivision (b ) and codifies existing case law regarding timely but facially insufficient motions, partial orders of denial, and the appointment of counsel. See, e.g., Spera v. State , 971 So. 2d 754 (Fla. 2007).

Rule 3.850(g). Subdivision (g) was previously containe d in subdivision (e), but the language is largely derived from rule 3.851(c)(3).

Rule 3.850(h). Subdivision (h), formerly rule 3.850(f), was substantially rewritten.

Rule 3.850(i). Subdivision (i) is substantially the same as former subdivision (g).- 37

- Rule 3.850(j). Subdivision (j) allows both the state and the defendant the right to rehearing and is intended to allow the court to correct an obvious error without the expense and delay of a state appeal

. See King v. State , 870 So. 2d 69 (Fla. 2d DCA 20 03). The statement regarding finality is consistent with Florida Rule of Appellate Procedure 9.020(i) and is intended to clarify the date of rendition of the final order disposing of any motion under this rule.

Rule 3.850(k). Subdivision ( k ), formerly rule 3.850(i), was substantially rewritten to simplify the review process in both the trial and appellate courts and to provide for the efficient disposition of all claims in both courts. The requirement of a statement indicating whether the order is a no nfinal or final order subject to appeal is intended to ensure that all claims will be disposed of by the trial court and addressed in a single appeal.

Rule 3.850( l ). Subdivision ( l ), formerly rule 3.850(j), reflects the consolidation of the subdivision w ith former rule 3.850(k).

Rule 3.850(n). Subdivision (n) is a substantial rewrite of former subdivision (m).

RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE HAS BEEN IMPOSED AND AFFIRMED ON DIRECT APPEAL

(a) [No Change]

(b) Appointment of Postc onviction 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 Co unsel or directing the trial court to immediately appoint counsel from the Registry of Attorneys maintained by the Commission on Capital Cases Justice Administrative Commission . The name of Registry Counsel shall be filed with the Supreme Court of Florida.

(2) [No Change]- 38

- (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 appointme nt of new collateral counsel shall be from the Registry of attorneys maintained by the Commission on Capital Cases Justice Administrative Commission unless the case is administratively transferred to another Capital Collateral Regional Counsel.

(c) Prelimi nary Procedures.

(1)

- (4) [No Change]

(5) Record on Appeal. The Clerk of the Supreme Court of Florida shall promptly deliver the record on appeal to the records repository after the appointment of postconviction counsel.

(d)

- (e) [No Change]

(f) Pr ocedure; Evidentiary Hearing; Disposition.

(1)

- (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 wit h the names and addresses of any potential witnesses. the defendant shall disclose all documentary exhibits that he or she intends to offer at the evidentiary hearing and shall file and serve an exhibit list of all such exhibits and a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be specifically designated on the witness list and copies of all expert reports shall be attached. Within 60 days after the case management conference, the state shall disclose a ll documentary exhibits that it intends to offer at the evidentiary hearing and shall file and serve an exhibit list of all such exhibits and a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be specificall y designated on the witness list and copies of all expert reports shall be attached. At the case management conference, the trial court shall:- 39

- (i) schedule an evidentiary hearing, to be held within 90 150 days, on claims listed by the defendant as requir ing a factual determination;

(ii)

- (iii) [No Change]

(B)

- (D) [No Change]

(6)

- (8) [No Change]

(g)

- (h) [No Change]

(i) Dismissal of Postconviction Proceedings.

(1) [No Change]

(2) If the prisoner files the motion pro se, the Clerk of the Court shall serve copies of the motion on counsel of record for both the prisoner and the state. Counsel of record may file responses within ten 10 days.

(3) [No Change]

(4) The judge shall examine the prisoner at the hearing and shall hear argument of the prisoner, collateral counsel, and the state. No fewer than
two 2 or more than three 3 qualified experts shall be appointed to examine the prisoner if the judge concludes that there are reasonable grounds to believe the prisoner is not mentally compet ent for purposes of this rule. The experts 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.

(5)

- (9) [No Change]

Court Commentary

1993 Adoption

- 2006 Amendment. [No Change]

2013 Amendment. Only minor amendments are made to rule 3.851.- 40

- RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a) [No Change]

(b) Appeals by Defendant.

(1) Appeals Permitted

. A defendant may appeal

(A)

- (C) [No Change]

(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Pro cedure 3.800(a), 3.801, 3.850, 3.851, or 3.853;

(E)

- (G) [No Change]

(2)

- (4) [No Change]

(c) Appeals by the State.

(1) Appeals Permitted. The state may appeal an order

(A)

- (I) [No Change]

(J) granting relief under Florida Rule o f Criminal Procedure 3.801, 3.850, 3.851, or 3.853;

(K)

- (P) [No Change]

(2)

- (3) [No Change]

(d)

- (i) [No Change]

RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL OR POST

- CONVICTION CRIMINAL CASES

(a) [No Change]- 41

- (b) Appeals from Post

- Conviction Proceedings Under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.850, or 3.853.

(1) [No Change]

(2) Summary Grant or Denial of Motion Without Evidentiary Hearing.

(A) When a motion for post

- conviction relief under rule 3.800(a), 3.801, 3.850, or 3.853 is granted or denied without an evidentiary hearing, the clerk of the lower tribunal shall transmit to the court, as the record, copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.

(B)

– (D) [No Change]

(3) Grant or Denial of Motion after Evidentiary Hearing.

(A) Transcription . In the absence of desi gnations to the court reporter, the notice of appeal filed by an indigent pro se litigant in a rule 3.801, 3.850

, or 3.853 appeal after an evidentiary hearing shall serve as the designation to the court reporter for the transcript of the evidentiary hearin g. Within 5 days of receipt of the notice of appeal, the clerk of the lower tribunal shall request the appropriate court reporter to transcribe the evidentiary hearing and shall send the court reporter a copy of the notice, the date of the hearing to be
t ranscribed, the name of the judge, and a copy of this rule.

(B) Record

. (i) When a motion for post

- conviction relief under rule 3.801, 3.850

, or 3.853 is granted or denied after an evidentiary hearing, the clerk of the lower tribunal shall index, pagin ate, and transmit to the court as the record, within 50 days of the filing of the notice of appeal, copies of the notice of appeal, motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, as well as the original transcript of the evidentiary hearing.

(ii)

– (iii) [No Change]- 42

- (C) [No Change]

(c)

- (d) [No Change]