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Court amends Rule 3.850.

The Florida Supreme Court has approved an amendment to Rule of Criminal Procedure 3.850 clarifying that those on probation, who have pleaded no contest, or have had adjudication withheld have appellate rights under the rule.

The court had asked the Criminal Procedure Rules Committee to look at the regulation after the court struck the rule's "in custody" requirement last year, in Wood v. State, 750 So.2d 592.

The court received comments from the committee and an assistant state attorney requesting clarification of the terms "conviction," "sentenced" and "judgment." Specific concerns were raised about whether conviction meant actually found guilty or whether those sentenced after adjudication had been withheld were covered by the rule.

The court set part (a) of the rule to read: "Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida." The court said the language was intended to cover those who are placed on probation after pleading no contest, and, in a footnote, it said those on probation are considered to be in custody of the state.

The court also said sections (b) through (h) of the rule are unaffected by the change, which became effective with the issuance of the October 19 opinion.

The court acted in Amendment to Florida Rule of Criminal Procedure 3.850, case no. SC00-1447. The complete ruling can be found on the court's website at
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Steven Sciotto (Member): What if record is sealed after sentence served? 12/28/2010 12:58 PM
Can a movant file for post-conviction relief after sentence has been served and the record has been Sealed by the Judge's order, if timely application is made within the 2 years specified under pre-existing rules for filing a motion under 3.850?

What if the Judge refuses to open or 'Un-Seal' the record?

In cases where the movant is seeking to restore firearms rights, this would appear to give that judge post-sentencing authority over the movant's firearms rights.

Since an original copy of that Judge's order to Seal - with the Clerk of the Court's stamp appropriately affixed - is required by the State of Florida's Agriculture and Consumer Services Department to restore said firearms rights to the movant, and because the Clerk of the Court asserts they are not allowed to provide a copy of said order after the Judge grants the motion to Seal, the movant is essentially prevented from proving the State with an official copy of said Order to Seal and therefore cannot restore his firearms rights.

This is clearly a violation of the Constitution of Florida

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Publication:Florida Bar News
Date:Nov 1, 2000
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