Supreme Court of Florida

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No. SC13-2295

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IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL 

PROCEDURE 3.852.

[April 30, 2015]

PER CURIAM. 

Previously, on its own motion, the Court amended Florida Rule of Criminal 

Procedure 3.852 to require the Florida Department of Corrections to provide a 

copy of a defendant’s medical, psychological, or psychiatric records to the capital 

postconviction defendant’s counsel of record when providing a copy of such 

records to the records repository as required by subdivisions (e)(3) and (g)(2) of 

rule 3.852. In re Amends. to Fla. Rule of Crim. Pro. 3.852, 140 So. 3d 507 (Fla. 

2014). This amendment was necessary because the sole procedure by which a 

capital postconviction defendant could obtain his or her medical, psychological, or 

psychiatric records from the Department caused delay and was burdensome and 
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inefficient.1 Because the rule as amended had not been subject to public comment, 

the Court provided for a comment period. Following our amendment to rule 3.852, 

the Florida Department of Corrections (DOC) filed a comment, to which the 

Capital Postconviction Proceedings Subcommittee (Subcommittee) filed a 

response. After considering the comment and response, we further amend rule 

3.852. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Rule 3.852 is a discovery rule for public records production ancillary to 

proceedings pursuant to rule 3.851. Amends. to Fla. Rules of Crim. Pro. 3.852 

(Capital Postconviction Pub. Records Prod.) & Rule 3.993 (Related Forms), 754 

So. 2d 640, 643 (Fla. 1999). Pursuant to rule 3.852(e)(3), the Department of 

 

1. Prior to the Court’s most recent amendment to rule 3.852, see In re 

Amends. to Fla. Rule of Crim. Pro. 3.852, 140 So. 3d 507, the only procedure by 

which a capital postconviction defendant could obtain his or her own medical, 

psychological, or psychiatric records under rule 3.852 was as follows. First, 

because such records are confidential, see § 456.057(7)(a), Fla. Stat. (2014), prior 

to being sent to the record repository, the records “must be separately contained, 

without being redacted, and sealed. The outside of the container must clearly 

identify that the public record is confidential or exempt and that the seal may not 

be broken without an order of the trial court.” Fla. R. Crim. P. 3.852(f)(1). Next, 

in order to actually obtain his or her own confidential records under rule 3.852, a 

motion must be brought on the defendant’s behalf before the trial court. Upon the 

trial court’s order, sealed containers subject to an inspection by the trial court shall 

be shipped to the clerk of court. Fla. R. Crim. P. 3.852(f)(2). The containers may 

be opened only for inspection by the trial court in camera, without ex parte 

communications. Id.
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Corrections “shall copy, index, and deliver to the records repository[2]all public 

records determined by the department to be relevant to the subject matter of a 

proceeding under rule 3.851, unless such copying, indexing, and delivering would 

be unduly burdensome.” Fla. R. Crim. P. 3.852(e)(3). To simplify the mechanism 

by which a capital postconviction defendant may obtain his or her own confidential 

medical, psychological, or psychiatric records from the Department of 

Corrections—records that are already required to be sent to the records 

repository—the Court amended rule 3.852 to provide that the Department of 

Corrections shall provide a copy of the defendant’s medical, psychological, and 

psychiatric records to the defendant’s counsel of record. In re Amends. to Fla. 

Rule of Crim. Pro. 3.852, 140 So. 3d at 509. This amendment was applicable to 

both the initial disclosure of records under subdivision (e)(3), and to the demand 

for additional records under subdivision (g)(2). Id.

Because the records at issue are confidential, see, e.g., §§ 456.057(7)(a),

945.10(1)(a), Fla. Stat. (2014), the DOC filed a comment expressing concern that 

the defendant’s medical, psychological, and psychiatric records would be released 

 

2. The “records repository” is the location designated by the secretary of 

state pursuant to section 27.7081(3), Florida Statutes (2014), for archiving capital 

postconviction public records. Fla. R. Crim. P. 3.852(b)(3).
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to counsel of record without the defendant’s consent or other proper authorization. 

The Subcommittee agreed with the DOC’s comment. After considering the 

comment and response, we further amend rule 3.852 to provide for such disclosure 

to counsel of record upon the DOC’s receipt of express consent by the defendant or 

pursuant to the authority of a court of competent jurisdiction. As suggested by the 

DOC, we also include a defendant’s substance abuse records with those records 

subject to such disclosure. Because rule 3.852(g)(2) pertains to other agencies in 

addition to the DOC, we decline to remove the reference to the “Department of 

Corrections” from the rule as suggested by the DOC.

Accordingly, Florida Rule of Criminal Procedure 3.852 is hereby amended 

as reflected in the appendix to this opinion. New language is indicated by 

underscoring, and deleted language is struck-through. The amendments shall 

become effective immediately upon release of this opinion. 

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and 

PERRY, JJ., concur.

LEWIS, J., concurs in result.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THESE AMENDMENTS. 

Original Proceeding – The Florida Rules of Criminal Procedure 
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Samantha Lee Ward, Chair, Criminal Procedure Rules Committee, Tampa, Florida; 

Melanie L. Casper, Past Chair, Criminal Procedure Rules Committee, West Palm 

Beach, Florida; John F. Harkness, Jr., Executive Director and Heather Savage 

Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida; Kevin M. Emas, 

Chair, Capital Postconviction Proceedings Subcommittee, Miami, Florida; Bart 

Neil Schneider, Staff Liaison, Office of the State Courts Administrator, 

Tallahassee, Florida, 

for Petitioner

Jennifer Alani Parker, General Counsel, Florida Department of Corrections, and

Rana Marie Wallace, Assistant General Counsel, Florida Department of 

Corrections, Tallahassee, Florida,

Responding with Comments
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APPENDIX

RULE 3.852. CAPITAL POSTCONVICTION PUBLIC RECORDS

PRODUCTION

(a)-(d) [No Change]

(e) Action Upon Receipt of Notice of Mandate.

(1)-(2) [No Change]

(3) Within 90 days after receipt of written notification of the mandate 

from the attorney general, the Department of Corrections shall copy, index, and 

deliver to the records repository all public records, in a current, nonproprietary 

technology format, determined by the department to be relevant to the subject 

matter of a proceeding under rule 3.851, unless such copying, indexing, and 

delivering would be unduly burdensome. To the extent that the records determined 

by the department to be relevant to the subject matter of a proceeding under rule 

3.851 are the defendant’s medical, psychological, substance abuse, or psychiatric 

records, upon receipt of express consent by the defendant or pursuant to the 

authority of a court of competent jurisdictionIn addition, the department shall 

provide a copy of the defendant’s medical, psychological, substance abuse, and 

psychiatric records to the defendant’s counsel of record. The department shall bear 

the costs. The secretary of the department shall provide written notification to the 

attorney general and the trial court of compliance with this section certifying that, 

to the best of the secretary of the department’s knowledge or belief, all such public 

records in the possession of the secretary of the department have been copied, 

indexed, and delivered to the records repository.

(4)-(5) [No Change]

(f) [No Change]

(g) Demand for Additional Public Records.

(1) [No Change]
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(2) Within 90 days of receipt of the written demand, each person or 

agency notified under this subdivision shall deliver to the records repository any 

additional public records in the possession of the person or agency that pertain to 

the case and shall certify to the best of the person or agency’s knowledge and 

belief that all additional public records have been delivered to the records 

repository or, if no additional public records are found, shall recertify that the 

public records previously delivered are complete. To the extent that the additional 

public records are the defendant’s Department of Corrections’ medical, 

psychological, substance abuse, or psychiatric records, upon receipt of express 

consent by the defendant or pursuant to the authority of a court of competent 

jurisdiction, the department shall also provide a copy of the defendant’s medical, 

psychological, substance abuse, and psychiatric records to the defendant’s counsel 

of record. A copy of each person’s or agency’s certification shall be provided to 

the trial court.

(3) [No Change]

(h)-(m) [No Change]

Repeal

[No Change]

Readoption

[No Change]