Supreme Court of Florida

____________

No. SC13-2381

____________

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL 

ADMINISTRATION; THE FLORIDA RULES OF CRIMINAL 

PROCEDURE; AND THE FLORIDA RULES OF APPELLATE 

PROCEDURE—CAPITAL POSTCONVICTION RULES.

[July 3, 2014]

PER CURIAM.

This matter is before the Court for consideration of amendments to the 

Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, 

and the Florida Rules of Appellate Procedure, proposed by the Capital 

Postconviction Proceedings Subcommittee of the Criminal Court Steering 

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

This Court has previously stated a specific goal that capital postconviction 

proceedings in the trial court be concluded within two years from the filing of an 

initial postconviction motion. See In re: Circuit Court Death Penalty 

Postconviction Proceedings—Reporting and Processing Requirements, Fla. 

Admin. Order No. AOSC11-32 (Sept. 14, 2011). Consistent with this objective, 
- 2 -

the Capital Postconviction Proceedings Subcommittee undertook to determine the 

causes of delay in existing capital postconviction procedures and recommend 

solutions. Its proposed rule amendments in this case are intended to improve the 

overall efficiency of the capital postconviction process through, among other 

things, case management tools, new minimum qualifications for the lead attorney 

representing a defendant in a capital postconviction case, a new requirement that 

defendants in postconviction cases be represented by an attorney, and the 

application of realistic, meaningful time frames and deadlines. The proposals are 

also intended to encourage chief judges in each circuit, and trial judges assigned to 

capital postconviction cases, to engage in proactive case management, and to 

provide those judges with the tools to effectively manage capital cases.

BACKGROUND

In conjunction with the Florida Legislature’s enactment of the Timely 

Justice Act during the 2013 legislative session, see ch. 2013-216, Laws of Fla., on 

March 22, 2013, the Court established the Capital Postconviction Proceedings 

Subcommittee (Subcommittee). See In re: Subcommittee on Capital 

Postconviction Proceedings, Fla. Admin. Order No. AOSC13-11 (Mar. 22, 2013). 

The Subcommittee was directed to “undertake a comprehensive review of capital 

postconviction proceedings, including Florida Rule of Criminal Procedure 3.851, 

and to make recommendations to the Court whether that rule, or any other rule, 
- 3 -

should be amended to improve the overall efficiency of the capital postconviction 

process.” Id. at 1.

Consistent with the Court’s direction, the Subcommittee has filed a petition 

to amend six rules impacting capital postconviction cases. According to the 

petition, the Subcommittee held several meetings and sought input from specific 

stakeholders identified in AOSC13-11—the Criminal Court Steering Committee, 

the Criminal Procedure Rules Committee, the Office of Capital Collateral Regional 

Counsel, and the Office of the Attorney General. The Subcommittee surveyed 

twenty-six circuit court judges with significant experience in capital postconviction 

cases. It also heard input from the Appellate Court Rules Committee, the Florida 

Prosecuting Attorneys Association, the Florida Public Defender Association, the 

Florida House of Representatives, the Governor’s Office, and the Clerk of the 

Florida Supreme Court. The Subcommittee indicates that the overwhelming 

consensus from these groups is that the existing rules governing the capital 

postconviction process generally work well, and that a complete overhaul of those 

rules is not necessary. It recommends amendments to six rules: Florida Rules of 

Judicial Administration 2.215 (Trial Court Administration) and 2.535 (Court 

Reporting); Florida Rules of Criminal Procedure 3.112 (Minimum Standards for 

Attorneys in Capital Cases), 3.851 (Collateral Relief After Death Sentence has 

been Imposed and Affirmed on Direct Appeal), and 3.852 (Capital Postconviction 
- 4 -

Public Records Production); and Florida Rule of Appellate Procedure 9.142 

(Procedures for Review in Death Penalty Cases). The Subcommittee also proposes 

four new case management orders to assist circuit court judges in managing capital 

postconviction cases.

After the Subcommittee filed its petition, the Court published the proposed 

amendments for comment. The Court received comments from six groups: the 

Florida Attorney General; the Criminal Law Section of The Florida Bar; the 

Criminal Procedure Rules Committee; the Florida Prosecuting Attorneys 

Association; Capital Collateral Regional Counsels for the Southern and Middle 

Regions of Florida; and the Florida Public Defender Association. The 

Subcommittee also received an additional comment from Judge Chris W. 

Altenbernd, of the Second District Court of Appeal. The Subcommittee filed a 

response addressing all seven comments; in some instances, the response includes 

revised rule proposals.1 The Court heard oral argument on the proposed 

amendments.

We have considered the Subcommittee’s proposals and revised proposals, 

the comments provided, and the issues raised at oral argument. As discussed in 

 

1. The Court also received a supplemental comment and a Notice of 

Supplemental Authority from Capital Collateral Regional Counsel South. The 

Subcommittee filed a response to the supplemental comment.
- 5 -

this opinion, we defer to the expertise of the Subcommittee and adopt most of the

proposed amendments, with some modifications. However, we decline to adopt 

the proposed amendment to Rule of Criminal Procedure 3.851(d)(2) (Time 

Limitation). We discuss the more significant rule amendments below.

AMENDMENTS

The Florida Rules of Judicial Administration

First, Rule of Judicial Administration 2.215 (Trial Court Administration) is 

amended to provide that the chief judge in a circuit shall monitor the status of all 

postconviction or collateral relief proceedings for defendants sentenced to death, 

beginning at the time this Court issues the mandate affirming the death sentence. 

Additionally, capital postconviction cases are added to the list of “priority cases” in 

subdivision (g) (Duty to Expedite Priority Cases) that should be expedited to the 

extent reasonably possible.

We also amend Rule of Judicial Administration 2.535 (Court Reporting), as 

proposed, to prohibit the use of digital court reporting as the primary court 

reporting system in trials where the state seeks the death penalty or in capital 

postconviction proceedings. The Subcommittee indicates its goal is that the circuit

courts will use real-time transcription services to the extent possible.
- 6 -

The Florida Rules of Criminal Procedure

In the Rules of Criminal Procedure, rule 3.112 (Minimum Standards for 

Attorneys in Capital Cases), is amended to add new subdivision (k) (Qualifications 

of Lead Counsel in Capital Postconviction Proceedings), which provides minimum 

qualifications for the attorney serving as lead counsel for the defendant in a capital 

postconviction case. Specifically, the lead attorney must have been a member of 

any state Bar for at least five years, and must have at least three years of

experience with postconviction litigation. Additionally, the lead counsel must 

have participated in a total of five proceedings in any of the following categories: 

(a) capital trials; (b) capital sentencings; (c) capital postconviction evidentiary 

hearings; (d) capital collateral postconviction appeals; or (e) capital federal habeas 

corpus proceedings. At least two of the five proceedings must have been capital 

postconviction evidentiary hearings or postconviction appeals, or federal habeas 

proceedings. 

With regard to these new minimum qualifications, Capital Collateral 

Regional Counsel urges the Court to require that the lead postconviction attorney

have experience in handling federal habeas petitions. While we share Capital 

Collateral Regional Counsel’s concern that a significant number of attorneys in 

Florida have apparently failed to meet federal filing deadlines in recent years, we 

ultimately defer to the Subcommittee and adopt new subdivision (k) as proposed. 
- 7 -

We believe the Subcommittee’s proposal strikes the appropriate balance between 

requiring that attorneys have relevant experience, and adopting qualifications 

standards so stringent that it may prove difficult to find qualified lead counsel in 

some circuits.

We also note that the qualifications in rule 3.112(k) are intended to apply 

only to the lead attorney handling a defendant’s postconviction case; attorneys that 

do not meet the new requirements are still permitted to assist the lead attorney in 

the representation. As provided in rule 3.112(c) (Applicability), the requirements 

in new subdivision (k) will apply to attorneys who are appointed or retained on or 

after April 1, 2015.

Next, we make a number of amendments to Rule of Criminal Procedure 

3.851 (Collateral Relief After Death Sentence has been Imposed and Affirmed on 

Direct Appeal). 

First, and perhaps most significantly, we add new subdivision (b)(6)

(Appointment of Postconviction Counsel) to rule 3.851 to provide that a defendant 

who has been sentenced to death may not represent himself or herself in a capital 

postconviction case in state court; he or she must be represented by an attorney. 

Indeed, the only basis on which a defendant may seek to dismiss counsel is 

pursuant to statute due to an actual conflict, or pursuant to rule 3.851(i) (Dismissal 

of Postconviction Proceedings). A defendant sentenced to death does not have a 
- 8 -

right to self-representation on direct appeal under either the United States or 

Florida Constitutions, and we have previously held that we will not accept pro se 

filings in direct appeals in capital cases. See Davis v. State, 789 So. 2d 978, 

980-81 (Fla. 2001); see also Martinez v. Court of Appeal of Cal., 528 U.S. 152 

(2000). We have also held that defendants sentenced to death may not appear pro 

se in any postconviction appeals. See Gordon v. State, 75 So. 3d 200, 202 (Fla. 

2011). In adopting the Subcommittee’s proposal, we now extend the prohibition 

against self-representation to include postconviction proceedings in the trial court. 

We agree with the Subcommittee that this change is consistent with our 

overarching goal to provide a fair and reliable postconviction process. As we 

stated in Gordon, “[w]e recognize that ‘we have a constitutional responsibility to 

ensure the death penalty is administered in a fair, consistent and reliable manner, as 

well as having an administrative responsibility to work to minimize the delays 

inherent in the postconviction process’ ” and we believe these principles are best 

served when defendants in postconviction proceedings are represented by counsel. 

Id. (citing Arbelaez v. Butterworth, 738 So. 2d 326, 326-27 (Fla. 1999)). This new 

provision shall apply to all postconviction motions filed on or after January 1, 

2015.

Next, subdivision (c)(1) (Preliminary Procedures; Judicial Assignment and 

Responsibilities) of rule 3.851 is amended to provide that the judge assigned to a 
- 9 -

capital postconviction case is responsible for case management in order to ensure 

compliance with statutes, rules, and administrative orders that impose processing 

steps, time deadlines, and reporting requirements. Beginning from the time of the 

assignment, the judge must issue case management orders for every step of the 

capital postconviction process. We also amend subdivision (c)(4) (Preliminary 

Procedures; Duties of Defense Counsel) to require a defendant’s trial attorney to 

provide postconviction counsel with a copy of his or her original file, including all 

work product not otherwise subject to a protective order and all information 

pertaining to the case that was created and obtained during the representation. As 

we stated in Long v. Dillinger, 701 So. 2d 1168, 1169 (Fla. 1997), an attorney’s 

original file is the property of the attorney, and the attorney is not required to 

surrender the original file to collateral counsel. However, collateral counsel is 

permitted to view and inspect the trial attorney’s entire original file, and may 

obtain a copy of the file, at collateral counsel’s expense.

In subdivision (d)(2) (Time Limitation) of rule 3.851, the Subcommittee 

proposed new time limits to bring successive postconviction motions alleging 

newly discovered evidence or claims involving retroactive application of a newly

announced rule of constitutional law. Currently, our case law provides that 

successive postconviction motions alleging newly discovered evidence must be 

filed within one year after the new facts were discovered. See, e.g., Jimenez v. 
- 10 -

State, 997 So. 2d 1056, 1064 (Fla. 2008) (“To be considered timely filed as newly 

discovered evidence, the successive rule 3.851 motion was required to have been 

filed within one year of the date upon which the claim became discoverable 

through due diligence.”). The Subcommittee’s revised proposal would require that 

these claims be raised within 180 days; it would also require that claims based on a 

new fundamental constitutional right must be brought within 180 days after 

issuance of the mandate of the decision announcing retroactivity. Capital 

Collateral Regional Counsel objects to the new time frames, arguing that the time

limits are too restrictive and will place a significant strain on their resources. 

Based on these comments, and the discussion at oral argument, we decline to adopt 

the Subcommittee’s new time frames in subdivision (d)(2).

Subdivision (e) (Contents of Motion) of rule 3.851 is amended to provide 

new requirements for organizing an initial postconviction motion. We have 

modified the Subcommittee’s revised proposal to provide that each claim or 

subclaim in the motion shall be separately pled and sequentially numbered. Also 

in subdivision (e), we eliminate the requirement that capital postconviction 

motions be filed under oath. The rule now requires that the postconviction motion 

contain a certification from the attorney filing it that he or she discussed the 

contents of the motion fully with the defendant, that the attorney has complied with 
- 11 -

Rule Regulating the Florida Bar 4-1.4,2and that the motion is filed in good faith. 

We agree with the Subcommittee that this provision should be sufficient to ensure 

that postconviction motions will be presented in good faith, and contain no 

frivolous or meritless claims.

Next, we amend subdivision (f) (Procedure; Evidentiary Hearing; 

Disposition) of rule 3.851 to: require that a motion to amend a postconviction 

motion must be filed at least forty-five days before the evidentiary hearing; provide 

that the trial judge shall conduct an evidentiary hearing on a successive 

postconviction motion within ninety days (rather than sixty days) after a case 

management conference; authorize the trial court to take witness testimony at the

hearing by “contemporaneous video communication equipment,” with or without 

the consent of any party; and direct that the transcripts of the evidentiary hearing 

shall be filed within ten days if real-time transcription was used, or forty-five days 

if real-time transcription was not used. We also amend subdivision (f) to authorize

the trial court to accept written closing arguments from the parties. The written 

 

2. Rule Regulating the Florida Bar 4-1.4 requires a lawyer to promptly 

inform the client of any decision or circumstance that requires the client’s 

informed consent; to reasonably consult with the client about how to accomplish 

the client’s objectives; to keep the client reasonably informed about the status of 

the case; to promptly comply with the client’s reasonable requests for information;

to consult with the client about any relevant limitation on the lawyer’s conduct; 

and to explain a matter to the client to the extent necessary to permit the client to 

make informed decisions.
- 12 -

arguments must be filed by both parties within thirty days of the filing of the 

transcript, they shall conform to the requirements for a brief, they shall not exceed 

sixty pages in length without leave from the trial court, and they shall include 

proposed findings of fact and conclusions of law. If the trial court does permit 

written closing arguments, it shall render its final order within thirty days after the 

filing of the last written closing argument, and no later than sixty days from the 

filing of the transcript; if the court does not permit written closing arguments, the 

final order shall be rendered within thirty days after the filing of the transcript. 

Subdivision (f) is further amended to require that all expert witnesses who will 

testify at the evidentiary hearing must submit written reports that will be disclosed 

to opposing counsel. Additionally, the subdivision is amended to provide that the 

trial court shall enter an order on any motion for rehearing within thirty days 

(rather than fifteen days); if the court does not render an order on rehearing in 

thirty days, the motion is deemed denied.

Lastly in rule 3.851, we add a new subdivision (j) (Attorney General 

Notification to Clerk), which requires the Attorney General to notify the Clerk of 

this Court when it believes a defendant has completed his or her direct appeal, 

initial postconviction proceedings in state court, and habeas corpus proceedings 

and appeal in federal court, and to serve a copy of the notification on the 
- 13 -

defendant’s counsel. This new rule is intended to assist the Clerk of this Court in 

complying with section 922.052, Florida Statutes (2013).

3

Turning next to Rule of Criminal Procedure 3.852 (Capital Postconviction 

Public Records Production), we amend the rule as proposed by the Subcommittee, 

with some modifications, in an effort to streamline the public records production 

process. In subdivision (d) (Action Upon Issuance of Mandate), we have revised 

the Subcommittee’s proposed amendment to provide that the Attorney General 

shall make a good faith effort to assist in the timely production of public records. 

Similarly, we have revised the Subcommittee’s proposal in subdivision (e) (Action 

Upon Receipt of Notice of Mandate) to require the state attorney to make a good 

faith effort to assist in the timely production of public records. 

Also in rule 3.852, new subdivision (f)(3) (Exempt or Confidential Public 

Records) requires collateral counsel to file a motion for an in camera inspection of 

sealed records within thirty days after receiving notice of delivery of the records to 

the central records repository. If the motion is not timely filed, the in camera 

inspection will be deemed waived. We also amend subdivision (g) (Demand for 

 

3. In the Timely Justice Act, the Florida Legislature amended section 

922.052, Florida Statutes, to require the Clerk of this Court to inform the Governor 

when a person convicted and sentenced to death has completed his or her direct 

appeal and initial postconviction proceedings in state court, as well as his or her 

habeas corpus proceedings and appeal in federal court. See Ch. 2013-216, § 12, 

Laws of Fla.
- 14 -

Additional Public Records) to provide that the trial court shall hear and rule on any 

objection to a demand for additional public records no later than the next ninetyday status conference.

The Florida Rules of Appellate Procedure

We amend Florida Rule of Appellate Procedure 9.142(a)(1)(B) (Procedures 

for Review in Death Penalty Cases; Procedure in Death Penalty Appeals; Record) 

to provide that the clerk of the trial court shall retain a copy of the complete record 

when it transmits the record to this Court on appeal.

Case Management Orders

As noted, the Subcommittee also proposes four new form case management 

orders. Each of the four orders outlines the responsibilities of the relevant 

participants and the actions each is required to take. The first order is to be used 

following the chief judge’s assignment of a trial judge to preside in a capital 

postconviction proceeding; the second order would be used following the United 

States Supreme Court’s disposition of the petition for writ of certiorari, or after 

expiration of the time to file a certiorari petition; the third order is designed for use 

after the defendant files his or her initial postconviction motion; and the fourth 

order is to be used following the case management conference. While we 

authorize these four form orders for use, we express no opinion as to their

correctness. The Subcommittee indicates that the orders will be posted to the 
- 15 -

Court’s Educational Resources for Judges and Lawyers website, and distributed to 

judges at the annual “Handling Capital Cases” course and refresher course.

CONCLUSION

We wish to thank the Subcommittee for its diligent and thorough work to 

improve the quality and efficiency of the capital postconviction process in this 

state. We also thank those who submitted comments in this matter for their 

valuable input. Additionally, we would like to acknowledge the excellent work of 

the trial courts, which have taken steps to ensure that capital postconviction cases 

are timely processed, consistent with the goals stated in In re Circuit Court Death 

Penalty Postconviction Proceedings—Reporting and Processing Requirements, 

Fla. Admin. Order No. AOSC11-32.

Accordingly, we amend the Florida Rules of Judicial Administration, the 

Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure 

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

underscoring; deletions are indicated by struck-through type. The amendments 

shall become effective on January 1, 2015, at 12:01 a.m., except that the new 

minimum qualifications in Rule of Criminal Procedure 3.112(k) will apply to 

attorneys appointed or retained on or after April 1, 2015.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

LEWIS, J., concurs with an opinion.
- 16 -

CANADY, J., concurs in part and dissents in part with an opinion in which 

POLSTON, J., concurs.

FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THESE AMENDMENTS.

LEWIS, J., concurring.

I agree with the adoption of these rules, but I continue to have multiple 

concerns. First, we must be vigilant to make certain that qualified postconviction 

counsel is both available and engaged in this process as the system moves forward. 

The process must be effectively monitored for the proper functioning of the 

process guided by counsel.

Second, the entire judicial system seems somewhat uncertain with regard to 

court reporting because within the last few years, we have attempted to manipulate 

the type of court reporting among different approaches. From time to time, it 

seems, types and models of court reporting move to and from favor to disfavor. 

Employee models, independent contractor models, digital, computerized, real-time 

and otherwise seem to flow into and out of favor. We must have a solid court 

reporting system to support a level of comfort with the entire criminal justice 

process.

Finally, I continue to believe that we can only overcome unconscionable and 

unacceptable systemic delays that undermine justice if we begin the discussion and 

analysis as to the proper roles of the respective State Attorney offices for the direct 
- 17 -

trial proceedings, and the Attorney General offices for postconviction collateral 

review proceedings. As in civil litigation, we have clearly understood and placed 

the burden of moving cases forward to justice on the shoulders of the party 

prosecuting the action so there must be some proper responsibility on the shoulders 

of the State in this area as the party ultimately responsible for prosecution of the 

underlying action. 

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

I would not adopt the amendment to Florida Rule of Criminal Procedure 

3.851(b)(6) prohibiting defendants in capital postconviction proceedings from 

representing themselves. I would, however, adopt the proposed amendment to 

Florida Rule of Criminal Procedure 3.851(d)(2) imposing a time limitation of 180 

days with respect to the filing of successive capital postconviction motions alleging 

newly discovered evidence or seeking retroactive application of the newly 

announced rule of constitutional law. Otherwise, I concur with the majority’s 

decision.

POLSTON, J., concurs.

Original Proceedings – Florida Rules of Judicial Administration, Florida Rules of 

Criminal Procedure and Florida Rules of Appellate Procedure

Kevin Emas, Judge, Third District Court of Appeal, Chair, Criminal Court Steering 

Committee, Miami, Florida, and Bart Schneider, Office of the State Courts 

Administrator, General Counsel’s Office, Tallahassee, Florida,

for Petitioner
- 18 -

APPENDIX

THE FLORIDA RULES OF JUDICIAL ADMINISTRATION

RULE 2.215. TRIAL COURT ADMINISTRATION

(a) [No change]

(b) Chief Judge.

(1) – (6) [No change]

(7) The chief judge shall regulate the use of all court facilities, 

regularly examine the dockets of the courts under the chief judge’s administrative 

supervision, and require a report on the status of the matters on the dockets. The 

chief judge may take such action as may be necessary to cause the dockets to be 

made current. The chief judge shall monitor the status of all pending 

postconviction or collateral relief proceedings brought byfor defendants who have 

been sentenced to death from the time that the mandate affirming the death 

sentence has been issued by the supreme court and shall take the necessary actions 

to assure that such cases proceed without undue delay. On the first day of every 

January, April, July, and October, the chief judge shall inform the chief justice of 

the supreme court of the status of all such pending cases.

(8) – (13) [No change]

(c) – (f) [No change]

(g) Duty to Expedite Priority Cases. Every judge has a duty to expedite 

priority cases to the extent reasonably possible. Priority cases are those cases that 

have been assigned a priority status or assigned an expedited disposition schedule 

by statute, rule of procedure, case law, or otherwise. Particular attention shall be 

given to all juvenile dependency and termination of parental rights cases, cases 

involving families and children in need of services, and challenges involving 

elections and proposed constitutional amendments, and capital postconviction 

cases. As part of an effort to make capital postconviction cases a priority, the chief 

judge shall have the discretion to create a postconviction division to handle capital 
- 19 -

postconviction, as well as non-capital postconviction cases, and may assign one or 

more judges to that division.

(h) – (i) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

Criminal Court Steering Committee Note

2014 Amendment. Capital postconviction cases were added to the list of 

priority cases. 

RULE 2.535. COURT REPORTING

(a) – (h) [No change]

(i) Court Reporting Services in Capital Cases. The chief judge, after 

consultation with the circuit court judges in the circuit, shall enter an 

administrative order developing and implementing a circuit-wide plan for court 

reporting in all trials in which the state seeks the death penalty and in capital 

postconviction proceedings. The plan shall prohibit the use of digital court 

reporting as the primary court reporting system and shall require the use of all 

measures necessary to expedite the preparation of the transcript, including but not 

limited to: 

(1) where available, the use of an approved court reporter who has 

the capacity to provide real-time transcription of the proceedings;

(2) if real-time transcription services are not available, the use of a 

computer-aided transcription qualified court reporter;
- 20 -

(3) the use of scopists, text editors, alternating court reporters, or 

other means to expedite the finalization of the certified transcript; and

(4) the imposition of reasonable restrictions on work assignments 

by employee or contract approved court reporters to ensure that transcript 

production in capital cases is given a priority. 

(j) [No change]

Committee Note

[No change]

THE FLORIDA RULES OF CRIMINAL PROCEDURE

RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN 

CAPITAL CASES

(a) – (b) [No change]

(c) Applicability. This rule applies to all defense counsel handling 

capital trials and capital appeals, who are appointed or retained on or after July 1, 

2002. Subdivision (k) of this rule applies to all lead counsel handling capital 

postconviction cases, who are appointed or retained on or after April 1, 2015.

(d) – (e) [No change]

(f) Lead Trial Counsel. Lead trial counsel assignments should be given 

to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or 

admitted to practice pro hac vice; and

(2) are experienced and active trial practitioners with at least five 

years of litigation experience in the field of criminal law; and

(3) have prior experience as lead counsel in no fewer than nine state 

or federal jury trials of serious and complex cases which were tried to completion, 
- 21 -

as well as prior experience as lead counsel or cocounsel in at least two state or 

federal cases tried to completion in which the death penalty was sought. In 

addition, of the nine jury trials which were tried to completion, the attorney should 

have been lead counsel in at least three cases in which the charge was murder; or 

alternatively, of the nine jury trials, at least one was a murder trial and an 

additional five were felony jury trials; and

(4) are familiar with the practice and procedure of the criminal courts 

of the jurisdiction; and

(5) are familiar with and experienced in the utilization of expert 

witnesses and evidence, including but not limited to psychiatric and forensic 

evidence; and

(6) have demonstrated the necessary proficiency and commitment 

which exemplify the quality of representation appropriate to capital cases, 

including but not limited to the investigation and presentation of evidence in 

mitigation of the death penalty; and

(7) have attended within the last two years a continuing legal 

education program of at least twelve hours’ duration devoted specifically to the 

defense of capital cases. 

(g) – (j) [No change]

(k) Qualifications of Lead Counsel in Capital Postconviction 

Proceedings. In order to serve as lead counsel, as set forth in rule 3.851, for the 

defendant in a capital postconviction proceeding, an attorney shall have:

(1) been a member of any bar for at least 5 years; and

(2) at least 3 years of experience in the field of postconviction 

litigation; and

(3) prior participation in a combined total of 5 proceedings in any 

of the following areas, at least 2 of which shall be from subdivision (k)(3)(C), 

(k)(3)(D), or (k)(3)(E) below:

(A) capital trials;
- 22 -

(B) capital sentencings;

(C) capital postconviction evidentiary hearings; 

(D) capital collateral postconviction appeals; 

(E) capital federal habeas proceedings.

(kl) Exceptional Circumstances. In the event that the trial court

determines that exceptional circumstances require appointment of counsel not 

meeting the requirements of this rule, the trial court shall enter an order specifying, 

in writing, the exceptional circumstances requiring deviation from the rule and the 

court’s explicit determination that counsel chosen will provide competent 

representation in accord with the policy concerns of the rule.

Committee Comments

[No change]

Criminal Court Steering Committee Note

2014 Amendment. The Steering Committee added minimum requirements 

for lead counsel in capital postconviction proceedings to ensure a requisite level of 

expertise in capital postconviction cases and to permit the State the opportunity to 

seek opt-in treatment pursuant to 28 U.S.C. §§ 2261-2266. 

RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE 

HAS BEEN IMPOSED AND AFFIRMED ON DIRECT 

APPEAL

(a) Scope. This rule shall apply to all postconviction proceedings that 

commence upon issuance of the appellate mandate affirming the death sentence to 

include all motions and petitions for any type of postconviction or collateral relief 

brought by a prisonerdefendant 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, 2001January 

1, 2015, by prisonersdefendants who are under sentence of death. Motions pending 
- 23 -

on that date are governed by the version of this rule in effect immediately prior to 

that date.

(b) Appointment of Postconviction Counsel.

(1) [No Change]

(2) Within 30 days of the issuance of the mandate, the Capital 

Collateral Regional Counsel or Registry Counsel shall file either a notice of 

appearance in the trial court or a motion to withdraw based on a conflict of interest 

or some other legal groundin the trial court. 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) [No Change]

(4) In every capital postconviction case, one lawyer shall be 

designated as lead counsel for the defendant. The lead counsel shall be the 

defendant’s primary lawyer in all state court litigation. No lead counsel shall be 

permitted to appear for a limited purpose on behalf of a defendant in a capital 

postconviction proceeding. 

(5) After the filing of a notice of appearance, Capital Collateral 

Regional Counsel, Registry Counsel, or a private attorney shall represent the 

defendant in the state courts until a judge allows withdrawal or until the sentence is 

reversed, reduced, or carried out, regardless of whether another attorney represents 

the defendant in a federal court.

(6) A defendant who has been sentenced to death may not represent 

himself or herself in a capital postconviction proceeding in state court. The only 

bases for a defendant to seek to dismiss postconviction counsel in state court shall 

be pursuant to statute due to actual conflict or subdivision (i) of this rule. 

(c) Preliminary Procedures.

(1) Judicial Assignment and Responsibilities. Within 30 days of 

the issuance of mandate affirming a judgment and sentence of death on direct 

appeal, the chief judge shall assign the case to a judge qualified under the Rules of 

Judicial Administration to conduct capital proceedings. The assigned judge is 

responsible for case management to ensure compliance with statutes, rules, and 
- 24 -

administrative orders that impose processing steps, time deadlines, and reporting 

requirements for capital postconviction litigation. From the time of assignment, the 

judge must issue case management orders for every step of the capital 

postconviction process, including at the conclusion of all hearings and conferences. 

(2) [No Change]

(3) Prisoner’sDefendant’s Presence Not Required. The 

prisoner’sdefendant’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 

and at any hearing involving conflict with or removal of collateral counsel.

(4) Duties of Defense Counsel. Within 45 days of appointment of 

postconviction counsel, the defendant’s trial counsel shall provide to 

postconviction counsel a copy of the original file including all work product not 

otherwise subject to a protective order and all information pertaining to the 

defendant’s capital case which was created and obtained during the representation 

of the defendant. Postconviction counsel shall maintain the confidentiality of all 

confidential information received. Postconviction counsel shall bear the costs of 

any copying. The defendant’s trial counsel must retain the defendant’s original file. 

(5) Record on Direct Appeal. The Clerk of the Circuit Court shall 

retain a copy of the record for the direct appeal when the record is transmitted to 

the Supreme Court of Florida. The Clerk of the Supreme Court of Florida shall 

promptly deliver the record on appeal to the records repository within 30 days after 

the appointment of postconviction counsel.

(d) Time Limitation.

(1) Any motion to vacate judgment of conviction and sentence of 

death shall be filed by the prisonerdefendant within 1 year after the judgment and 

sentence become final. For the purposes of this rule, a judgment is final:

(A) on the expiration of the time permitted to file in the 

United States Supreme Court a petition for writ of certiorari seeking review of the 

Supreme Court of Florida decision affirming a judgment and sentence of death (90 

days after the opinion becomes final); or

(B) on the disposition of the petition for writ of certiorari by 

the United States Supreme Court, if filed.
- 25 -

(2) [No Change]

(3) All petitions for extraordinary relief in which the Supreme 

Court of Florida has original jurisdiction, including petitions for writs of habeas 

corpus, shall be filed simultaneously with the initial brief filed on behalf of the 

death-sentenced prisonerdefendant in the appeal of the circuit court’s order on the 

initial motion for postconviction relief filed under this rule.

(4) The time limitation in subdivision (d)(1) is established with the 

understanding that each death-sentenced prisoner will have counsel assigned and 

available to begin addressing the prisoner’s postconviction issues within the time 

specified in this rule. ShouldIf the governor signs a death warrant before the 

expiration of the time limitation in subdivision (d)(1), the Supreme Court of 

Florida, on a defendant’s request, will grant a stay of execution to allow any 

postconviction relief motions to proceed in a timely and orderly manner. 

Furthermore, this time limitation shall not preclude the right to amend or to 

supplement pending pleadings under these rules.

(5) An extension of time may be granted by the Supreme Court of 

Florida for the filing of postconviction pleadings if the prisoner’sdefendant’s 

counsel makes a showing of good cause for counsel’s inabilitythat due to 

exceptional circumstances, counsel was unable to file the postconviction pleadings 

within the 1-year period established by this rule.

(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. Each claim or subclaim shall be separately pled and shall be 

sequentially numbered beginning with claim number 1. If upon motion or upon the 

court’s own motion, a judge determines that this portion of the rule has not been 

followed, the judge shall give the movant 30 days to amend. If no amended motion 

is filed, the judge shall deem the non-compliant claim, subclaim, and/or argument 

waived. 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 
- 26 -

trial and, if properly preserved, on direct appeal of the judgment and sentence. 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 explaining why these claims are being raised on postconviction relief. 

The motion shall be under oath and need not be under oath or signed by the 

defendant but shall include:

(A) a description of the judgment and sentence under attack 

and the name of the court that rendered the same;

(B) a statement of each issue raised on appeal and the 

disposition thereof;

(C) the nature of the relief sought;

(D) a detailed allegation of the factual basis for any claim for 

which an evidentiary hearing is sought; and

(E) a detailed allegation as to the basis for any purely legal or 

constitutional claim for which an evidentiary hearing is not required and the reason 

that this claim could not have been or was not raised on direct appeal; and.

(F) a certification from the attorney that he or she has 

discussed the contents of the motion fully with the defendant, that he or she has 

complied with Rule 4-1.4 of the Rules of Professional Conduct, and that the 

motion is filed in good faith.

(2) Successive Motion. A motion filed under this rule is successive 

if a state court has previously ruled on a postconviction motion challenging the 

same judgment and sentence. A claim raised in a successive motion shall be 

dismissed if the trial court finds that it fails to allege new or different grounds for 

relief and the prior determination was on the merits; or, if new and different 

grounds are alleged, the trial court finds that the failure to assert those grounds in a 

prior motion constituted an abuse of the procedure; or, if the trial court finds there 

was no good cause for failing to assert those grounds in a prior motion; or, if the 

trial court finds the claim fails to meet the time limitation exceptions set forth in 

subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).

A successive motion shall not exceed 25 pages, exclusive of 

attachments, and shall include:
- 27 -

(A) – (B) [No Change]

(C) if based upon newly discovered evidence, Brady v. 

Maryland Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v. United States

Giglio v. United States, 405 U.S. 150 (1972), the following:

(i) the names, addresses, and telephone numbers of all 

witnesses supporting the claim;

(ii) a statement that the witness will be available, 

should an evidentiary hearing be scheduled, to testify under oath to the facts 

alleged in the motion or affidavit;

(iii) if evidentiary support is in the form of documents, 

copies of all documents shall be attached, including any affidavits obtained; and

(iv) as to any witness or document listed in the motion 

or attachment to the motion, a statement of the reason why the witness or 

document was not previously available.

(f) Procedure; Evidentiary Hearing; Disposition.

(1) – (2) [No Change]

(3) Answer.

(A) Answer 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. The answer shall use the same claim numbering system contained 

in the defendant’s initial motion. 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 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 use the 

same claim numbering system contained in the defendant’s motion. The answer 
- 28 -

shall specifically respond to each claim in the motion and state the reason(s) that 

an evidentiary hearing is or is not required.

(4) Amendments. A motion filed under this rule may not be 

amended up to 30 days prior to the evidentiary hearing upon motion and unless 

good cause is shown. The trial court may in its discretion grant a motion to amend 

provided that the motion sets forth the reason the claim was not raised earlier and 

attaches a A copy of the claim sought to be added must be attached to the motion 

to amend. The trial court may in its discretion grant a motion to amend provided 

that the motion to amend was filed at least 45 days before the scheduled 

evidentiary hearing. Granting a motion under this subdivision shall not be a basis 

for granting a continuance of the evidentiary hearing unless a manifest injustice 

would occur if a continuance was not granted. If amendment is allowed, the state 

shall file an amended answer within 20 days after the amended motion is filed

judge allows the motion to be amended.

(5) Case Management Conference; Evidentiary Hearing.

(A) [No Change]

(B) Successive Postconviction Motion. Within 30 days after 

the state files its answer to a successive motion for postconviction relief, the trial 

court shall hold a case management conference. At the case management 

conference, the trial court also shall determine whether an evidentiary hearing 

should be held and hear argument on any purely legal claims not based on disputed 

facts. If the motion, files, and records in the case conclusively show that the 

movant is entitled to no relief, the motion may be denied without an evidentiary 

hearing. If the trial court determines that an evidentiary hearing should be held, the 

court shall schedule the hearing to be held within 6090 days. If a death warrant has 

been signed, the trial court shall expedite these time periods in accordance with 

subdivision (h) of this rule.

(C) [No Change]

(D) Taking Testimony. Upon motion, or upon its own 

motion and without the consent of any party, the court may permit a witness to 

testify at the evidentiary hearing by contemporaneous video communication 

equipment that makes the witness visible to all parties during the testimony. There 

must be appropriate safeguards for the court to maintain sufficient control over the 

equipment and the transmission of the testimony so the court may stop the 
- 29 -

communication to accommodate objections or prevent prejudice. If testimony is 

taken through video communication equipment, there must be a notary public or 

other person authorized to administer oaths in the witness’s jurisdiction who is 

present with the witness and who administers the oath consistent with the laws of 

the jurisdiction where the witness is located. The cost for the use of video 

communication equipment is the responsibility of either the requesting party or, if 

upon its own motion, the court. 

(DE) Procedures After Evidentiary Hearing. Immediately 

following an evidentiary hearing, the trial court shall order a transcript of the 

hearing, which shall be filed within 30 days. Within 30 days of receipt of the 

transcript, the court shall render its order, ruling on each claim considered at the 

evidentiary hearing and all other claims raised in the motion, making detailed 

findings of fact and conclusions of law with respect to each claim, and attaching or 

referencing such portions of the record as are necessary to allow for meaningful 

appellate review. The order issued after the evidentiary hearing shall resolve all the 

claims raised in the motion and shall be considered the final order for purposes of 

appeal. The clerk of the trial court shall promptly serve upon the parties and the 

attorney general a copy of the final order, with a certificate of service.10 days if 

real-time transcription was utilized, or within 45 days if real-time transcription was 

not utilized. The trial judge may permit written closing arguments instead of oral 

closing arguments. If the trial court permits the parties to submit written closing 

arguments, the arguments shall be filed by both parties within 30 days of the filing 

of the transcript of the hearing. No answer or reply arguments shall be allowed. 

Written arguments shall be in compliance with the requirements for briefs in rule 

9.210(a)(1) and (a)(2), shall not exceed 60 pages without leave of court, and shall 

include proposed findings of facts and conclusions of law, with citations to 

authority and to appropriate portions of the transcript of the hearing.

(F) Rendition of the Order. If the court does not permit 

written closing arguments, the court shall render its order within 30 days of the 

filing of the transcript of the hearing. If the court permits written closing 

arguments, the court shall render its order within 30 days of the filing of the last 

written closing argument and no later than 60 days from the filing of the transcript 

of the hearing. The court shall rule on each claim considered at the evidentiary 

hearing and all other claims raised in the motion, making detailed findings of fact 

and conclusions of law with respect to each claim, and attaching or referencing 

such portions of the record as are necessary to allow for meaningful appellate 

review. The order issued after the evidentiary hearing shall resolve all the claims 

raised in the motion and shall be considered the final order for purposes of appeal. 
- 30 -

The clerk of the trial court shall promptly serve upon the parties and the attorney 

general a copy of the final order, with a certificate of service.

(6) Mental Health Experts and Other Witnesses. All expert 

witnesses who will testify at the evidentiary hearing must submit written reports, 

which shall be disclosed to opposing counsel as provided in subdivision (f)(5)(A).

If the defendant intends to offer expert testimony of his or her mental status, the 

state shall be entitled to have the defendant examined by its own mental health 

expert. If the defendant fails to cooperate with the state’s expert, the trial court 

may, in its discretion, proceed as provided in rule 3.202(e). Reports provided to 

either party by an expert witness shall be disclosed to opposing counsel upon 

receipt.

(7) Rehearing. Motions for rehearing shall be filed within 15 days 

of the rendition of the trial court’s order and a response thereto filed within 10 days 

thereafter. A motion for rehearing shall 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. The trial 

court’s order disposing of the motion for rehearing shall be rendered not later than 

1530 days thereafterfrom the filing of the motion for rehearing. If no order is filed 

within 30 days from the filing of the motion for rehearing, the motion is deemed 

denied. A motion for rehearing is not required to preserve any issue for review. 

(8) Appeals. Any party may appeal a final order entered on a 

defendant’s motion for rule 3.851 relief by filing a notice of appeal with the clerk 

of the lower tribunal within 30 days of the rendition of the order to be reviewed. 

Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142, 

a prisonerdefendant under sentence of death may petition for a belated appeal.

(g) Incompetence to Proceed in Capital Collateral Proceedings.

(1) A death-sentenced prisonerdefendant pursuing collateral relief 

under this rule who is found by the court to be mentally incompetent shall not be 

proceeded against if there are factual matters at issue, the development or 

resolution of which require the prisoner’sdefendant’s input. However, all collateral 

relief issues that involve only matters of record and claims that do not require the 

prisoner’sdefendant’s input shall proceed in collateral proceedings notwithstanding 

the prisoner’sdefendant’s incompetency.
- 31 -

(2) Collateral counsel may file a motion for competency 

determination and an accompanying certificate of counsel that the motion is made 

in good faith and on reasonable grounds to believe that the death-sentenced 

prisonerdefendant is incompetent to proceed. The motion and certificate shall 

replace the signed oath by the prisonerdefendant that otherwise must accompany a 

motion filed under this rule.

(3) If, at any stage of a postconviction proceeding, the court 

determines that there are reasonable grounds to believe that a death-sentenced

prisonerdefendant is incompetent to proceed and that factual matters are at issue, 

the development or resolution of which require the prisoner’sdefendant’s input, a 

judicial determination of incompetency is required.

(4) The motion for competency examination shall be in writing and 

shall allege with specificity the factual matters at issue and the reason that 

competent consultation with the prisonerdefendant is necessary with respect to 

each factual matter specified. To the extent that it does not invade the lawyer-client 

privilege with collateral counsel, the motion shall contain a recital of the specific 

observations of, and conversations with, the death-sentenced prisonerdefendant 

that have formed the basis of the motion.

(5) If the court finds that there are reasonable grounds to believe 

that a death-sentenced prisonerdefendant is incompetent to proceed in a 

postconviction proceeding in which factual matters are at issue, the development or 

resolution of which require the prisoner’sdefendant’s input, the court shall order 

the prisonerdefendant examined by no more than 3, nor fewer than 2, experts 

before setting the matter for a hearing. The court may seek input from the deathsentenced prisoner’sdefendant’s counsel and the state attorney before appointment 

of the experts.

(6) [No Change]

(7) Counsel for both the death-sentenced prisonerdefendant and the 

state may be present at the examination, which shall be conducted at a date and 

time convenient for all parties and the Department of Corrections.

(8) On appointment by the court, the experts shall examine the 

death-sentenced prisonerdefendant with respect to the issue of competence to 

proceed, as specified by the court in its order appointing the experts to evaluate the 

prisonerdefendant, and shall evaluate the prisonerdefendant as ordered.
- 32 -

(A) The experts first shall consider factors related to the issue 

of whether the death-sentenced prisonerdefendant meets the criteria for 

competence to proceed, that is, whether the prisonerdefendant has sufficient 

present ability to consult with counsel with a reasonable degree of rational 

understanding and whether the prisonerdefendant has a rational as well as factual 

understanding of the pending collateral proceedings.

(B) In considering the issue of competence to proceed, the 

experts shall consider and include in their report:

(i) the prisoner’sdefendant’s capacity to understand 

the adversary nature of the legal process and the collateral proceedings;

(ii) the prisoner’sdefendant’s ability to disclose to 

collateral counsel facts pertinent to the postconviction proceeding at issue; and

(iii) any other factors considered relevant by the 

experts and the court as specified in the order appointing the experts.

(C) [No Change]

(9) If the experts find that the death-sentenced prisonerdefendant is 

incompetent to proceed, the experts shall report on any recommended treatment for 

the prisonerdefendant to attain competence to proceed. In considering the issues 

relating to treatment, the experts shall report on:

(A) the mental illness or intellectual disability causing the 

incompetence;

(B) the treatment or treatments appropriate for the mental 

illness or intellectual disability of the prisonerdefendant and an explanation of each 

of the possible treatment alternatives in order of choices; and

(C) the likelihood of the prisonerdefendant attaining 

competence under the treatment recommended, an assessment of the probable 

duration of the treatment required to restore competence, and the probability that 

the prisonerdefendant will attain competence to proceed in the foreseeable future.
- 33 -

(10) Within 30 days after the experts have completed their 

examinations of the death-sentenced prisonerdefendant, the court shall schedule a 

hearing on the issue of the prisoner’sdefendant’s competence to proceed.

(11) If, after a hearing, the court finds the prisonerdefendant 

competent to proceed, or, after having found the prisonerdefendant incompetent, 

finds that competency has been restored, the court shall enter its order so finding 

and shall proceed with a postconviction motion. The prisonerdefendant shall have 

60 days to amend his or her rule 3.851 motion only as to those issues that the court 

found required factual consultation with counsel.

(12) If the court does not find the prisonerdefendant incompetent, 

the order shall contain:

(A) findings of fact relating to the issues of competency;

(B) copies of the reports of the examining experts; and

(C) copies of any other psychiatric, psychological, or social 

work reports submitted to the court relative to the mental state of the deathsentenced prisonerdefendant.

(13) If the court finds the prisonerdefendant incompetent or finds the 

prisonerdefendant competent subject to the continuation of appropriate treatment, 

the court shall follow the procedures set forth in rule 3.212(c), except that, to the 

extent practicable, any treatment shall take place at a custodial facility under the 

direct supervision of the Department of Corrections.

(h) After Death Warrant Signed.

(1) – (7) [No change]

(8) Procedures After Hearing. The court shall obtain a transcript 

of all proceedings and shall render its order in accordance with subdivision 

(f)(5)(D) of this rule as soon as possible after the hearing is concluded. A copy of 

the final order shall be electronically transmitted to the Supreme Court of Florida 

and to the attorneys of record.

(9) [No change]
- 34 -

(i) Dismissal of Postconviction Proceedings.

(1) This subdivision applies only when a prisonerdefendant seeks 

both to dismiss pending postconviction proceedings and to discharge collateral 

counsel.

(2) If the prisonerdefendant files the motion pro se, the Clerk of the 

Court shall serve copies of the motion on counsel of record for both the 

prisonerdefendant and the state. Counsel of record may file responses within 10 

days.

(3) The trial judge shall review the motion and the responses and 

schedule a hearing. The prisonerdefendant, collateral counsel, and the state shall be 

present at the hearing.

(4) The judge shall examine the prisonerdefendant at the hearing 

and shall hear argument of the prisonerdefendant, collateral counsel, and the state. 

No fewer than 2 or more than 3 qualified experts shall be appointed to examine the 

prisonerdefendant if the judge concludes that there are reasonable grounds to 

believe the prisonerdefendant is not mentally competent 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) If the prisonerdefendant is found to be incompetent for 

purposes of this rule, the court shall deny the motion without prejudice.

(6) If the prisonerdefendant is found to be competent for purposes 

of this rule, the court shall conduct a complete (Durocher/Faretta)

(Durocher/Faretta) inquiry to determine whether the prisonerdefendant 

knowingly, freely and voluntarily wants to dismiss pending postconviction 

proceedings and discharge collateral counsel.

(7) If the court determines that the prisonerdefendant has made the 

decision to dismiss pending postconviction proceedings and discharge collateral 

counsel knowingly, freely, and voluntarily, the court shall enter an order 

dismissing all pending postconviction proceedings and discharging collateral 

counsel. But if the court determines that the prisonerdefendant has not made the 

decision to dismiss pending postconviction proceedings and discharge collateral 
- 35 -

counsel knowingly, freely, and voluntarily, the court shall enter an order denying 

the motion without prejudice.

(8) If the court grants the motion:

(A) 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 30 days; and

(B) discharged counsel shall, within 10 days after issuance of 

the order, file with the clerk of the circuit court 2 copies of a notice seeking review 

in the Supreme Court of Florida, and shall, within 20 days after the filing of the 

transcript, serve an initial brief. Both the prisonerdefendant and the state may serve 

responsive briefs. Briefs shall be served as prescribed by rule 9.210.

(9) If the court denies the motion, the prisonerdefendant may seek 

review as prescribed by Florida Rule of Appellate Procedure 9.142(b).

(j) Attorney General Notification to Clerk. The Office of the Attorney 

General shall notify the clerk of the supreme court when it believes the defendant 

has completed his or her direct appeal, initial postconviction proceeding in state 

court, and habeas corpus proceeding and appeal therefrom in federal court. The 

Office of the Attorney General shall serve a copy of the notification on defendant’s 

counsel of record.

Repeal

[No Change]

Readoption

[No Change]

Court Commentary

[No change]
- 36 -

Criminal Court Steering Committee Note

2014 Amendment. The rule was amended to comply with the “Timely 

Justice Act of 2013,” chapter 2013-216, Laws of Florida, and to preclude extended 

postconviction litigation. Because the Sixth Amendment does not apply to 

postconviction proceedings, the Steering Committee concluded that a defendant 

has no constitutional right to self-representation in postconviction matters. The 

Steering Committee also concluded that the capital postconviction process would 

function more effectively if a defendant were represented by an attorney, unless the 

defendant seeks to dismiss postconviction proceedings and discharge counsel 

pursuant to subdivision (i). The Steering Committee concluded that the lead 

attorney should not be allowed to participate in capital postconviction litigation on 

a limited basis and that the lead attorney should remain in the case until the 

litigation is concluded or until the court allows withdrawal. The Steering 

Committee also determined that the postconviction process would not work 

efficiently unless the trial judge was responsible for case management. Case 

management orders are required throughout the postconviction process in order to 

maintain a capital postconviction computer database. 

Under the amended rule, the clerk of the trial court is required to retain a 

copy of the record so that it will be available for postconviction litigation, 

especially following issuance of the death warrant. Additionally, the Steering 

Committee added provisions to the pleading requirements for motions and created 

a provision that allows for written closing argument memoranda, formalizing by 

rule a practice that is already utilized throughout the state in capital postconviction 

proceedings. In an effort to prevent delay, the amended rule requires written 

reports from experts who will testify at the evidentiary hearing, and allows for 

witnesses to testify via videoconferencing, even over the objections of the parties. 

Finally, the amended rule requires the Attorney General to inform the Clerk of the 

Florida Supreme Court and the defendant’s counsel of record when a defendant has 

completed his or her litigation in order for the Clerk to report to the Governor 

pursuant to Florida Statute 922.052. 

RULE 3.852. CAPITAL POSTCONVICTION PUBLIC RECORDS 

PRODUCTION

(a) – (c) [No change]

(d) Action Upon Issuance of Mandate.
- 37 -

(1) Within 15 days after receiving written notification of the 

Supreme Court of Florida’s mandate affirming the sentence of death, the attorney 

general shall file with the trial court a written notice of the mandate and serve a 

copy of it upon the state attorney who prosecuted the case, the Department of

Corrections, and the defendant’s trial counsel. The notice to the state attorney shall 

direct the state attorney to submit public records to the records repository within 90 

days after receipt of written notification and to notify each law enforcement agency 

involved in the investigation of the capital offense, with a copy to the trial court, to 

submit public records to the records repository within 90 days after receipt of 

written notification. The notice to the Department of Corrections shall direct the 

department to submit public records to the records repository within 90 days after 

receipt of written notification. The attorney general shall make a good faith effort 

to assist in the timely production of public records and written notices of 

compliance by the state attorney and the Department of Corrections with copies to 

the trial court.

(2) Within 90 days after receiving written notification of issuance 

of the Supreme Court of Florida’s mandate affirming a death sentence, the state 

attorney shall provide written notification to the attorney general and to the trial 

court of the name and address of any additional person or agency that has public 

records pertinent to the case.

(3) Within 90 days after receiving written notification of issuance 

of the Supreme Court of Florida’s mandate affirming a death sentence, the 

defendant’s trial counsel shall provide written notification to the attorney general 

and to the trial court of the name and address of any person or agency with 

information pertinent to the case which has not previously been provided to 

collateral counsel.

(4) Within 15 days after receiving written notification of any 

additional person or agency pursuant to subdivision (d)(2) or (d)(3) of this rule, the 

attorney general shall notify all persons or agencies identified pursuant to 

subdivisions (d)(2) or (d)(3), with a copy to the trial court, that these persons or 

agencies are required by law to copy, index, and deliver to the records repository 

all public records pertaining to the case that are in their possession. The person or 

agency shall bear the costs related to copying, indexing, and delivering the records. 

The attorney general shall make a good faith effort to assist in the timely 

production of public records and a written notice of compliance by each additional 

person or agency with a copy to the trial court.
- 38 -

(e) Action Upon Receipt of Notice of Mandate.

(1) Within 15 days after receipt of a written notice of the mandate 

from the attorney general, the state attorney shall provide written notification to 

each law enforcement agency involved in the specific case to submit public records 

to the records repository within 90 days after receipt of written notification. A copy 

of the notice shall be served upon the defendant’s trial counsel and the trial court. 

The state attorney shall make a good faith effort to assist in the timely production 

of public records and a written notice of compliance by each law enforcement 

agency with a copy to the trial court.

(2) Within 90 days after receipt of a written notice of the mandate 

from the attorney general, the state attorney shall copy, index, and deliver to the 

records repository all public records, in a current, nonproprietary technology 

format, that were produced in the state attorney’s investigation or prosecution of 

the case. The state attorney shall bear the costs. The state attorney shall also 

provide written notification to the attorney general and the trial court of 

compliance with this section, including certifying that, to the best of the state 

attorney’s knowledge or belief, all public records in the state attorney’s possession 

have been copied, indexed, and delivered to the records repository as required by 

this rule.

(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. In addition, the department shall 

provide a copy of the defendant’s medical, psychological, 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) Within 90 days after receipt of written notification of the 

mandate from the state attorney, a law enforcement agency shall copy, index, and 

deliver to the records repository all public records, in a current, nonproprietary 
- 39 -

technology format, which were produced in the investigation or prosecution of the 

case. Each agency shall bear the costs. The chief law enforcement officer of each 

law enforcement agency shall provide written notification to the attorney general

and the trial court of compliance with this section including certifying that, to the 

best of the chief law enforcement officer’s knowledge or belief, all such public 

records in possession of the agency or in possession of any employee of the 

agency, have been copied, indexed, and delivered to the records repository.

(5) Within 90 days after receipt of written notification of the 

mandate from the attorney general, each additional person or agency identified 

pursuant to subdivision (d)(2) or (d)(3) of this rule shall copy, index, and deliver to 

the records repository all public records, in a current, nonproprietary technology 

format, which were produced during the prosecution of the case. The person or 

agency shall bear the costs. The person or agency shall provide written notification 

to the attorney general and the trial court of compliance with this subdivision and 

shall certify, to the best of the person or agency’s knowledge and belief, all such 

public records in the possession of the person or agency have been copied, 

indexed, and delivered to the records repository.

(f) Exempt or Confidential Public Records.

(1) – (2) [No Change]

(3) Collateral counsel must file a motion for in camera inspection 

within 30 days of receipt of the notice of delivery of the sealed records to the 

central records repository, or the in camera inspection will be deemed waived.

(g) Demand for Additional Public Records.

(1) Within 240 days after collateral counsel is appointed, retained, 

or appears pro bono, such counsel shall send a written demand for additional 

public records to each person or agency submitting public records or identified as 

having information pertinent to the case under subdivision (d) of this rule, with a 

copy to the trial court. However, if collateral counsel was appointed prior to 

October 1, 2001, then within 90 days after collateral counsel is appointed, retained, 

or appears pro bono, such counsel shall send a written demand for additional 

public records to each person or agency submitting public records or identified as 

having information pertinent to the case under subdivision (d) of this rule.
- 40 -

(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, or psychiatric records, the department shall also provide a copy 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) Within 60 days of receipt of the written demand, any person or 

agency may file with the trial court an objection to the written demand described in 

subdivision (g)(1). The trial court shall hold a hearing and issue a ruling within 30 

dayshear and rule on any objection no later than the next 90-day status conference

after the filing of anythe objection, ordering a person or agency to produce 

additional public records if the court determines each of the following exists:

(A) Collateral counsel has made a timely and diligent search 

as provided in this rule.

(B) Collateral counsel’s written demand identifies, with 

specificity, those additional public records that are not at the records repository.

(C) The additional public records sought are relevant to the 

subject matter of a proceeding under rule 3.851, or appear reasonably calculated to 

lead to the discovery of admissible evidence.

(D) The additional public records request is not overly broad or 

unduly burdensome.

(h) – (i) [No change]

(j) Copying of Public Records. Collateral counsel shall provide the 

personnel, supplies, and any necessary equipment to copy records held at the 

records repository.
- 41 -

(kj) Authority of the Court. In proceedings under this rule the trial court 

may:

(1) compel or deny disclosure of records;

(2) conduct an in-camera inspection;

(3) extend the times in this rule upon a showing of good cause;

(4) require representatives from government agencies to appear at 

status conferences to address public records issues;

(45) impose sanctions upon any party, person, or agency affected by 

this rule including initiating contempt proceedings, taxing expenses, extending 

time, ordering facts to be established, and granting other relief; and

(56) resolve any dispute arising under this rule unless jurisdiction is 

in an appellate court. 

(lk) Scope of Production and Resolution of Production Issues.

(1) – (2) [No Change]

(3) The trial court may order mediation for any controversy as to 

public records production pursuant to this rule in accord with Florida Rules of 

Civil Procedure 1.700, 1.710, 1.720, 1.730, or the trial court may refer any such 

controversy to a magistrate in accord with Florida Rule of Civil Procedure 1.490. 

(ml) Destruction of Records Repository Records. Sixty days after a 

capital sentence is carried out, after a defendant is released from incarceration 

following the granting of a pardon or reversal of the sentence, or after a defendant 

has been resentenced to a term of years, the attorney general shall provide written 

notification of this occurrence to the secretary of state with service in accord with 

subdivision (c)(1). After the expiration of the 60 days, the secretary of state may 

then destroy the copies of the records held by the records repository that pertain to 

that case, unless an objection to the destruction is filed in the trial court and served 

upon the secretary of state and in accord with subdivision (c)(1). If no objection 

has been served within the 60-day period, the records may then be destroyed. If an 

objection is served, the records shall not be destroyed until a final disposition of 

the objection. 
- 42 -

Repeal

[No Change]

Readoption

[No Change]

Criminal Court Steering Committee Note

2014 Amendment. The rule is amended to require the state attorney and 

attorney general to manage compliance with the public records process.

THE FLORIDA RULES OF APPELLATE PROCEDURE

RULE 9.142. PROCEDURES FOR REVIEW IN DEATH PENALTY 

CASES

(a) Procedure in Death Penalty Appeals.

(1) Record.

(A) [No Change]

(B) The complete record in a death penalty appeal shall 

include all items required by rule 9.200 and by any order issued by the supreme 

court. In any appeal following the initial direct appeal, the record that is 

electronically transmitted shall begin with the most recent mandate issued by the 

supreme court, or the most recent filing not already electronically transmitted in a 

prior record in the event the preceding appeal was disposed of without a mandate,

and shall exclude any materials already transmitted to the supreme court as the 

record in any prior appeal. The clerk of the lower tribunal shall retain a copy of the 

complete record when it transmits the record to the Supreme Court.

(C) [No Change]

(2) – (5) [No Change]
- 43 -

(b) – (d) [No change]

Committee Notes

[No change]

Criminal Court Steering Committee Note

2014 Amendment. Rule 9.142(a)(1)(B) was amended for the clerk of the 

lower court to retain a copy of the complete record for use in a subsequent 

postconviction proceeding.
- 44 -

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT

IN AND FOR (enter county name) COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

(enter defendant’s name),

Defendant.

/

FELONY DIVISION

CASE NO. (enter case number)

FIRST CASE MANAGEMENT ORDER AFTER ASSIGNMENT OF 

THE POSTCONVICTION JUDGE, 

APPOINTING COURT REPORTER, AND 

NOTICE OF FIRST STATUS CONFERENCE

This capital postconviction case came before the court on its own motion for 

case management on (enter date judge assigned to case) when the undersigned 

judge was assigned to this case. The appellate mandate was issued on (enter date 

of mandate). It is the court’s intent to implement case management procedures 

that comport with the timeframes specified in Florida Rules of Criminal Procedure 

3.851 and 3.852, and Florida Statute, section 27.7081; to enable the timely entry of 
- 45 -

a final order within two years after the initial motion is filed. To accomplish this 

goal, the court finds and orders as follows. 

The court will

 conduct the first status conference within 90 days after the judicial assignment, 

and subsequent status conferences every 90 days thereafter.

 appoint a court reporter by this order. 

 require that pleadings be e-mailed to the parties and staff attorney in addition to 

filing and normal service, or use e-filing procedures when implemented. 

 e-mail orders to the parties and staff attorney in addition to filing and normal 

service, or use e-filing procedures when implemented. 

 dispose of motions or objections requiring a hearing no later than the next 

regularly scheduled status conference. 

 report the quarterly planning and status of case activities to the chief judge or 

person designated for reporting to the supreme court every January 1, April 1, 

July 1, and October 1, from the date of the mandate.

 conduct all non-evidentiary hearings in (enter name of county where judge is 

assigned) where the judge is assigned absent objection by the parties, and will 

conduct the evidentiary hearing in (enter name of county where trial 
- 46 -

conducted) where the trial was conducted unless stipulated otherwise by the 

parties. [include this section for decentralized circuits only]

 avoid setting hearings during the first full week of the month when the supreme 

court may schedule oral argument on other capital cases involving the same 

attorney general and collateral counsel.

 determine the availability and accessibility of the trial transcripts and the trial

appellate record as soon as practical.

The attorney general will 

 notice the mandate and public records requirements to the state attorney, the 

department of corrections, and trial counsel by (calculate and enter date = 

mandate + 15 days).

 make a good faith effort to assist in the timely production of public records and 

written notices compliance by the state attorney and the department of 

corrections by (calculate and enter date = mandate + 105 days).

 notify additional persons or agencies identified by the state attorney and trial 

counsel of public records requirements by (calculate and enter date = mandate 

+ 120 days).
- 47 -

 make a good faith effort to assist in the timely production of public records and 

written notices of compliance by additional persons or agencies identified by 

the state attorney and trial counsel by (calculate and enter date = mandate + 

210 days).

The state attorney will

 notice law enforcement agencies of public records requirements by (calculate 

and enter date = mandate + 30 days).

 notify the attorney general of additional persons or agencies with information 

pertinent to the case which has not previously been provided to collateral 

counsel by (calculate and enter date = mandate + 105 days).

 make a good faith effort to assist in the timely production of public records and 

written notices of compliance by the law enforcement agencies by (calculate 

and enter date = mandate + 120 days).

Trial counsel will 

 provide a copy of the original file including all work product not otherwise 

subject to a protective order to collateral counsel and file a notice of compliance 

by (calculate and enter date = mandate + 45 days).
- 48 -

 notify the attorney general of additional persons or agencies with information 

pertinent to the case which has not previously been provided to collateral 

counsel by (calculate and enter date = mandate + 105 days).

Collateral counsel will 

 enter a notice of appearance or a motion to withdraw by (calculate and enter 

date = mandate + 30 days).

 notify the court and the parties within 20 days of the date and disposition of the 

USSC petition for writ of certiorari, or the decision not to file a petition.

 file a motion to compel production of public records within 20 days of any 

missed agency deadline and notice the agency to comply or appear at the next 

regularly scheduled status conference.

 file a motion for in camera inspection within 30 days of receipt of a notice from 

the central records repository of the delivery of sealed records to the clerk, or 

the in camera inspection will be deemed waived. 

 file additional demands for public records by (calculate and enter date = 

mandate + 240 days).

 file postproduction demands for public records as soon as practical.
- 49 -

A second case management order will be entered after disposition of the USSC 

petition for writ of certiorari, or 90 days after issuance of the mandate if no petition 

is filed.

Appointment of Court Reporter

It is ORDERED THAT (enter name of court reporting agency, assign trial 

court reporter if possible), a court reporter from the list maintained by the Trial 

Court Administrator, is hereby appointed to take all proceedings in this 

postconviction matter.

Notice of First Status Conference

The first status conference is set on (enter date and time), in (enter courtroom 

number and address). [(enter amount of time set aside for hearing) has been 

reserved for the hearing.] Parties may appear in person or by telephone. If appearing 

by telephone, (enter telephone conferencing arrangements.) 

DONE AND ORDERED in chambers in (enter chambers city), Florida, on 

(enter date and year).

(enter judge’s name)

CIRCUIT JUDGE
- 50 -

NOTICE

If you are a person with a disability who needs any accommodation in order to 

participate in this proceeding, you are entitled, at no cost to you, to the provision 

of certain assistance. Please contact (enter contact information) at least 7 days 

before your scheduled court appearance, or immediately upon receiving this 

notification if the time before the scheduled appearance is less than 7 days; if 

you are hearing or voice impaired, call 711.
- 51 -

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above order, including any 

attachments, have been sent to the following addressees by U.S. Mail, postage 

prepaid or by courthouse box delivery where indicated, to the following persons, on 

(enter date and year). 

Copies to: (enter names and 

addresses for the following)

Trial Counsel

Collateral Counsel

Attorney General

State Attorney

Central Records Repository

Court Reporter

Clerk of the Court

Court Security

Chief Judge

Staff Attorney

(enter name and title of person 

serving copies)

By:___________________________

 
- 52 -

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT

IN AND FOR (enter county name) COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

(enter defendant’s name),

Defendant.

/

FELONY DIVISION

CASE NO. (enter case number)

SECOND CASE MANAGEMENT ORDER 

FOLLOWING DISPOSITION OF PETITION FOR WRIT OF 

CERTIORARI BY UNITED STATES SUPREME COURT 

[OR EXPIRATION OF TIME FOR FILING PETITION] 

This capital postconviction case comes before this Court for case 

management following the United States Supreme Court’s disposition of the 

Defendant’s Petition for Writ of Certiorari [or expiration of time for filing 

petition]. [The petition was disposed of on (enter date cert. disposed).] [or The 

time for filing a petition expired on (calculate mandate + 90 days).] Various 

timeframes contained in Florida Rule of Criminal Procedure 3.851 are triggered 
- 53 -

from the date of the disposition of the petition for writ of certiorari [or expiration 

of the time for filing petition].

It is this Court’s intention to establish a schedule of conferences and 

hearings in conformity with the timeframes contained in rule 3.851, so that a final 

order on defendant’s capital postconviction motion can be rendered no later than 

(date = three years from date certiorari was disposed of or expiration date for 

filing petition), which is within two years after the initial capital postconviction 

motion is filed. To accomplish this, it is hereby ORDERED: 

Defendant’s capital collateral counsel shall:

 File the initial rule 3.851 motion by (date = one year from date USSC 

certiorari disposition or expiration date for filing petition).

The Office of State Attorney shall:

 File its answer to the initial rule 3.851 motion by (date = initial motion filing 

date above + 60 days).

The Court will:

 Schedule hearings, conferences and other proceedings within the following 

tentative timeframes absent the filing of an amended initial motion:

o Conduct the case management conference no later than (date = answer 

filing date above + 90 days).

o Order capital collateral counsel to produce, at the case management 

conference, all documentary exhibits, and to file at the conference an 
- 54 -

exhibit list and a witness list. All expert witnesses shall be specifically 

designated on the witness list, and all expert reports shall be attached to 

the witness list. 

o Order the State to produce no later than (date = case management 

conference date above + 60 days) all documentary exhibits, and to file an 

exhibit list and a witness list. All expert witnesses shall be specifically 

designated on the witness list, and all expert reports shall be attached to 

the witness list. 

o Conduct the evidentiary hearing no later than (date = case management 

conference date above + 150 days).

o Order the court reporter to produce the evidentiary hearing transcript no 

later than (date = evidentiary hearing date above + 10 days if real-time 

transcription or + 45 days for other transcription).

o Order capital collateral counsel to file a simultaneous written closing 

arguments no later than (date = transcript production date above + 30 

days).

o Order the state to file a simultaneous written closing argument no later 

than (date = transcript production date above + 30 days).

o Enter the final order by (date = transcript production date above + 60 

days).

• Commence quarterly chief judge reporting to the chief justice pursuant to 

AOSC11-32 after (date = initial motion filing date + 18 months), when the 

initial motion has been pending for 18 months.

 Note that, pursuant to Florida Statutes, section the clerk of the supreme court 

will report, to the legislature, the status of this case and the name of the 

assigned judge to the legislature after (date = initial motion + 3 years), when 

the initial motion has been pending for more than 3 years. 
- 55 -

A third case management order will be entered after the initial capital 

postconviction motion is filed.

DONE AND ORDERED in chambers in (enter chambers city), Florida, on 

(enter date and year).

(enter judge’s name)

CIRCUIT JUDGE

NOTICE

If you are a person with a disability who needs any accommodation in order to 

participate in this proceeding, you are entitled, at no cost to you, to the provision of 

certain assistance. Please contact (enter contact information) at least 7 days before 

your scheduled court appearance, or immediately upon receiving this notification if 

the time before the scheduled appearance is less than 7 days; if you are hearing or 

voice impaired, call 711.
- 56 -

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above order, including any 

attachments, have been sent to the following addressees by U.S. Mail, postage 

prepaid or by courthouse box delivery where indicated, to the following persons, on 

(enter date and year). 

Copies to: (enter names and 

addresses for the following)

Capital Collateral Counsel

Attorney General

State Attorney

Court Reporter

Clerk of the Court

Court Security

Chief Judge

Staff Attorney

(enter name and title of person 

serving copies)

 

By:___________________________
- 57 -

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT

IN AND FOR (enter county name) COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

(enter defendant’s name),

Defendant.

/

FELONY DIVISION

CASE NO. (enter case number)

THIRD CASE MANAGEMENT ORDER 

ON FILING OF INITIAL POSTCONVICTION MOTION AND

NOTICE OF CASE MANAGEMENT CONFERENCE

This capital postconviction case came before the court on its own motion for 

case management on the defendant’s initial postconviction motion filed on (enter 

date initial motion filed). Timeframes in Florida Rule of Criminal Procedure 

3.851 are derived from this date. It is the court’s intent to set activities in 

timeframes that comport with the rule; to enable the timely entry of a final order by 

(calculate and enter date = two years from date initial motion filed above), two 

years after the initial motion is filed. To accomplish this goal, the court finds and 

orders as follows. 
- 58 -

The court will

 determine from collateral counsel whether leave to file an amended motion is 

requested, and if so whether the case management conference will be continued 

until after an amended answer is filed. 

 set the case management conference below, within 90 days after the answer is 

filed; or after the amended answer is filed, if required. 

Collateral counsel will

 file an amended motion by (enter date negotiated with the court, typically 60 

days after all public records are received), if requested.

 produce exhibit and witness lists, and experts reports at the case management 

conference, set below.

The state will

 file an answer by (calculate and enter date = initial motion filing date above + 

60 days).

 file an amended answer by (calculate and enter date = amended motion filing 

date above + 20 days), if required.

 produce exhibit and witness lists, and expert reports by (calculate and enter 

date = case management conference date below + 60 days).
- 59 -

Notice of Case Management Conference

The case management conference is set on (enter date and time), in (enter 

courtroom number and address). [(enter amount of time set aside for hearing) has 

been reserved for the hearing.] Parties may appear in person or by telephone. If 

appearing by telephone, (enter telephone conferencing arrangements.) 

A fourth case management order will be entered after the case management 

conference is conducted.

DONE AND ORDERED in chambers in (enter chambers city), Florida, on 

(enter date and year).

(enter judge’s name)

CIRCUIT JUDGE

NOTICE

If you are a person with a disability who needs any accommodation in order to 

participate in this proceeding, you are entitled, at no cost to you, to the provision 

of certain assistance. Please contact (enter contact information) at least 7 days 

before your scheduled court appearance, or immediately upon receiving this 

notification if the time before the scheduled appearance is less than 7 days; if 

you are hearing or voice impaired, call 711.
- 60 -

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above order, including any 

attachments, have been sent to the following addressees by U.S. Mail, postage 

prepaid or by courthouse box delivery where indicated, to the following persons, on 

(enter date and year). 

Copies to: (enter names and 

addresses for the following)

Collateral Counsel

Attorney General

State Attorney

Court Reporter

Clerk of the Court

Court Security

Chief Judge

Staff Attorney

(enter name and title of person 

serving copies)

By:___________________________

 
- 61 -

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT

IN AND FOR (enter county name) COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

(enter defendant’s name),

Defendant.

/

FELONY DIVISION

CASE NO. (enter case number)

FOURTH CASE MANAGEMENT ORDER 

FOLLOWING CASE MANAGEMENT CONFERENCE

AND

NOTICE OF EVIDENTIARY HEARING

This capital postconviction case came before this Court at the case 

management conference conducted on (enter date of case management 

conference). Various timeframes contained in Florida Rule of Criminal Procedure 

3.851 are triggered from the date of the filing of the initial motion for 

postconviction relief. 

It is this Court’s intention to establish a schedule of conferences and 

hearings in conformity with the timeframes contained in rule 3.851, so that a final 
- 62 -

order on defendant’s capital postconviction motion can be rendered no later than 

(date = three years from date cert denied by USSC), which is within two years 

after the initial capital postconviction motion is filed. To accomplish this, it is 

hereby ORDERED: 

At the case management conference, the court heard argument on 

whether claims raised in the motion/amended motion require a factual 

determination at an evidentiary hearing. The court granted an evidentiary hearing 

on the following claims: 

(enter claim numbers and/or description of claims requiring a factual 

determination). 

The court denied an evidentiary hearing on the following claims: 

(enter claim numbers and/or description of claims not requiring a factual 

determination). 

The parties estimated that (enter total estimate of hearing days) days will be 

required for those claims for which evidentiary hearing was granted; [defense 

(enter estimate of days for defense case) days and state (enter estimate of day for 

state case) days]. 
- 63 -

Notice of Evidentiary Hearing

An evidentiary hearing is set from (enter evidentiary hearing start date and 

time, which should be a date within 150 days of case management conference date 

above) through (enter evidentiary hearing end date), in (enter courtroom number 

and address). The Defendant shall be present for the evidentiary hearing.

The following shall be done prior to the evidentiary hearing: 

Defendant’s capital collateral counsel shall:

 No later than (enter date negotiated with the court) submit transport orders to 

chambers for the Defendant and any Florida inmate witnesses.

 No later than (enter date negotiated with the court) submit a writ of habeas 

corpus ad testificandum to compel the appearance of any federal or out-of-state 

inmate witness.

 No later than (enter date negotiated with the court) submit certificates of 

materiality and other documentation necessary to secure attendance of out-ofstate witnesses to chambers or to compel the appearance of any out-of-state 

witness.

The parties shall:

 No later than (enter date negotiated with court), make arrangements with Court 

Technology for the appearance of any witnesses appearing by video conference.

 No later than ten days before the start of the evidentiary hearing, meet in a good 

faith effort to narrow the issues in dispute by stipulating in writing to as many 

facts as possible and to stipulate to the admissibility of as many exhibits as 

possible.
- 64 -

 No later than two business days before the start of the evidentiary hearing, meet 

with the clerk to pre-mark exhibits.

During the evidentiary hearing:

The Court will:

 Set the daily hearing schedule from (enter start time) a.m. to (enter stop time)

p.m. with lunch from (enter start lunch time) to (enter stop lunch time, 90 

minutes enables parties to handle issues that arise during the hearing). 

Following the evidentiary hearing:

The court reporter shall:

 Produce the evidentiary hearing transcript by (date = evidentiary hearing date 

above + 10 days if real-time transcription or + 45 days for other transcription).

Defendant’s capital collateral counsel shall:

 Submit and serve a simultaneous written closing argument no later than (date = 

transcript production date above + 30 days).

The State shall:

 Submit and serve a simultaneous written closing argument no later than (date = 

transcript production date above + 30 days).

The Court will:

 Enter the final order no later than (date = transcription production date above + 

60 days).
- 65 -

DONE AND ORDERED in chambers in (enter chambers city), Florida, on 

(enter date and year).

(enter judge’s name)

CIRCUIT JUDGE

NOTICE

If you are a person with a disability who needs any accommodation in order to 

participate in this proceeding, you are entitled, at no cost to you, to the provision 

of certain assistance. Please contact (enter contact information) at least 7 days 

before your scheduled court appearance, or immediately upon receiving this 

notification if the time before the scheduled appearance is less than 7 days; if 

you are hearing or voice impaired, call 711.
- 66 -

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above order, including any 

attachments, have been sent to the following addressees by U.S. Mail, postage 

prepaid or by courthouse box delivery where indicated, to the following persons, on 

(enter date and year). 

Copies to: (enter names and 

addresses for the following)

Collateral Counsel

Attorney General

State Attorney

Court Reporter

Clerk of the Court

Court Security

Chief Judge

Staff Attorney

(enter name and title of person 

serving copies)

By:___________________________