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Amendments to the capital postconviction rules.

The Supreme Court's Capital Postconviction Proceedings Subcommittee has submitted to the Florida Supreme Court a petition to amend the capital postconviction rules. The Subcommittee was created by administrative order, In re Subcommittee on Capital Postconviction Proceedings, Fla. Admin. Order No. AOSC13-11 (March 22, 2013), and charged with undertaking a comprehensive review of capital postconviction proceedings and recommending to the Supreme Court whether any rules of court should be amended to improve the overall efficiency of the capital postconviction process. In response to that charge and in consideration of the "Timely Justice Act of 2013," chapter 2013-216, Laws of Florida, the Subcommittee proposes amendments to 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 Public Records Production), and Florida Rule of Appellate Procedure 9.142 (Procedures for Review in Death Penalty Cases). The Subcommittee also seeks approval of four case management orders and recommends they be posted on the Court's Education Resource Library website, and included in the curriculum of the "Handling Capital Cases" course and "Capital Case Refresher" course. The court invites all interested persons to comment on the proposals, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the court on or before February 17, with a certificate of service verifying that a copy has been served on Judge Kevin Emas, Chair, Criminal Court Steering Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami 33175, emask@flcourts.org, and on staff to the Subcommittee, Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee 32399, schneidb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until March 10 to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-FilingPortal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e- mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399- 1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

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, CASE NO. SC13-2381

Proposed Rule Amendments:

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 [begin strikethrough]pending[end strikethrough] postconviction or collateral relief proceedings [begin strikethrough]brought by[end strikethrough] for 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 [begin strikethrough]pending[end strikethrough] 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, [begin strikethrough]and[end strikethrough] 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 postconviction (as well as non-capital postconviction) cases, and may assign one or more judges to that division.

(h)--(i) [No change]

Committee Notes

2008 Amendment. [No change]

Court Commentary

1996 Court Commentary. [No change]

1997 Court Commentary. [No change]

2002 Court Commentary. [No change]

Criminal Court Steering Committee Notes

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 realtime transcription of the proceedings;

(2) if real-time transcription services are not available, the use of a computer-aided transcription qualified court reporter;

(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]

RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES

(a)--(j) [No change]

(k) Qualifications of Lead Counsel in Capital Postconviction Proceedings. In order to serve as lead counsel 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;

(B) capital sentencings;

(C) capital postconviction evidentiary hearings;

(D) capital collateral postconviction appeals;

(E) capital federal habeas proceedings.

([begin strikethrough]k[end strikethrough]/) 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 Comment

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 [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]October 1, 2001[end strikethrough] (insert effective date), by [begin strikethrough]prisoners[end strikethrough]defendants who are under sentence of death. Motions pending on that date are governed by the version of this rule in effect immediately prior to that date.

(b) Appointment of Postconviction Counsel.

(1) Upon the issuance of the mandate affirming a judgment and sentence of death on direct appeal, the Supreme Court of Florida shall at the same time issue an order appointing the appropriate office of the Capital Collateral Regional Counsel or directing the trial court to immediately appoint counsel from the Registry of Attorneys maintained by the Justice Administrative Commission. The name of Registry Counsel shall be filed with the Supreme Court of Florida.

(2) Within 30 days of the issuance of the mandate, the Capital Collateral Regional Counsel or Registry Counsel shall file either a notice of appearance [begin strikethrough]in the trial court[end strikethrough] or a motion to withdraw [begin strikethrough]based on a conflict of interest or some other legal ground[end strikethrough]in 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 [begin strikethrough]specific[end strikethrough] conflict of interest as set forth in section 27.703, Florida Statutes.

(3) Within 15 days after Capital Collateral Regional Counsel or Registry Counsel files a motion to withdraw, the chief judge or assigned judge shall rule on the motion and appoint new postconviction counsel if necessary. The appointment of new collateral counsel shall be from the Registry of attorneys maintained by the Justice Administrative Commission unless the case is administratively transferred to another Capital Collateral Regional Counsel.

(4) No attorney shall be allowed 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 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) Status Conferences. The assigned judge shall conduct a status conference not later than 90 days after the judicial assignment, and shall hold status conferences at least every 90 days thereafter until the evidentiary hearing has been completed or the motion has been ruled on without a hearing. The attorneys, with leave of the trial court, may appear electronically at the status conferences. Requests to appear electronically shall be liberally granted. Pending motions, disputes involving public records, or any other matters ordered by the court shall be heard at the status conferences.

(3) [begin strikethrough]Prisoner's[end strikethrough]Defendant's Presence Not Required. The [begin strikethrough]prisoner's[end strikethrough]defendant's presence shall not be required at any hearing or conference held under this rule, except at the evidentiary hearing on the merits of any claim 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 [begin strikethrough]all[end strikethrough]the original file including all work product not otherwise subject to a protective order and 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.

(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 [begin strikethrough]promptly[end strikethrough] 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 [begin strikethrough]prisoner[end strikethrough]defendant 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.

(2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges:

(A) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 60 days of the time the new facts were or could have been discovered with the exercise of due diligence, or

(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, and the claim is made within 180 days of the date of issuance of the mandate of the decision announcing the retroactivity, or

(C) postconviction counsel, through neglect, failed to file the motion.

(3) All petitions for extraordinary relief in which the Supreme Court of Florida has original jurisdiction, including petitions for writs of habeas corpus, shall be filed simultaneously with the initial brief filed on behalf of the death sentenced [begin strikethrough]prisoner[end strikethrough]defendant in the appeal of the circuit court's order on the initial motion for postconviction relief filed under this rule.

(4) [begin strikethrough]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. Should[end strikethrough]If the governor signs a death warrant before the expiration of the time limitation in sub-division (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. [begin strikethrough]Furthermore, this time limitation shall not preclude the right to amend or to supplement pending pleadings under these rules.[end strikethrough]

(5) An extension of time may be granted by the Supreme Court of Florida for the filing of postconviction pleadings if the [begin strikethrough]prisoner's[end strikethrough]defendant's counsel makes a showing [begin strikethrough]of good cause for counsel's inability[end strikethrough] that 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 shall be separately pled, shall contain only one legal argument, and shall be sequentially numbered beginning with claim number 1. Sub-claims involving a different legal argument are prohibited. No claims shall be pled in a footnote. 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, sub- claim, 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 trial and, if properly preserved, on direct appeal of the judgment and sentence. If claims that were raised on appeal or should 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 [begin strikethrough]shall be under oath and[end strikethrough]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 [begin strikethrough]name of the[end strikethrough] 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.

(F) a certification from the attorney 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),(B), or (C).

A successive motion shall not exceed 25 pages, exclusive of attachments, and shall include:

(A) all of the pleading requirements of an initial motion under subdivision (e)(1);

(B) the disposition of all previous claims raised in postconviction proceedings and the reason or reasons the claim or claims raised in the present motion were not raised in the former motion or motions;

(C) if based upon newly discovered evidence, [begin strikethrough]Brady v. Maryland[end strikethrough] Brady v. Maryland, 373 U.S. 83 (1963), or [begin strikethrough]Giglio v. United States[end strikethrough] 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) Filing and Service. All pleadings in the postconviction proceeding shall be filed with the clerk of the trial court and served on the assigned judge, opposing party, and the attorney general. Upon the filing of any original court document in the postconviction proceeding, the clerk of the trial court shall determine that the assigned judge has received a copy. All motions other than the postconviction motion itself shall be accompanied by a notice of hearing.

(2) Duty of Clerk. A motion filed under this rule shall be immediately delivered to the chiefjudge or the assigned judge along with the court file.

(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 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 [begin strikethrough]up to 30 days prior to the evidentiary hearing upon motion and[end strikethrough] unless good cause is shown. [begin strikethrough]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[end strikethrough] 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 [begin strikethrough]amended motion is filed[end strikethrough] judge allows the motion to be amended.

(5) Case Management Conference; Evidentiary Hearing.

(A) Initial Postconviction Motion. No later than 90 days after the state files its answer to an initial motion, the trial court shall hold a case management conference. At the case management conference, the defendant shall disclose all documentary exhibits that he or she intends to offer at the evidentiary hearing and shall file and serve an exhibit list of all such exhibits and a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be specifically designated on the witness list, and copies of all expert reports shall be attached. Within 60 days after the case management conference, the state shall disclose all documentary exhibits that it intends to offer at the evidentiary hearing and shall file and serve an exhibit list of all such exhibits and a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be specifically designated on the witness list, and copies of all expert reports shall be attached. At the case management conference, the trial court shall:

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

(ii) hear argument on any purely legal claims not based on disputed facts; and

(iii) resolve disputes arising from the exchange of information under this subdivision.

(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 [begin strikethrough]60[end strikethrough]90 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) Extension of Time to Hold Evidentiary Hearing. The trial court also may for good cause extend the time for holding an evidentiary hearing for up to 90 days.

(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 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.

([begin strikethrough]D[end strikethrough]E) Procedures After Evidentiary Hearing. Immediately following an evidentiary hearing, the trial court shall order a transcript of the hearing, which shall be filed within [begin strikethrough]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.[end strikethrough] 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 20 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 40 pages, 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 50 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. 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) [begin strikethrough]Mental Health[end strikethrough] Experts and Other Witnesses. All expert witnesses 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). [begin strikethrough]Reports provided to either party by an expert witness shall be disclosed to opposing counsel upon receipt.[end strikethrough]

(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 [begin strikethrough]15[end strikethrough]30 days [begin strikethrough]thereafter[end strikethrough] from 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 [begin strikethrough]prisoner[end strikethrough] defendant under sentence of death may petition for a belated appeal.

(g) Incompetence to Proceed in Capital Collateral Proceedings.

(1) A death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner's[end strikethrough]defendant's input. However, all collateral relief issues that involve only matters of record and claims that do not require the [begin strikethrough]prisoner's[end strikethrough]defendant's input shall proceed in collateral proceedings notwithstanding the [begin strikethrough]prisoner's[end strikethrough]defendant's incompetency.

(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 [begin strikethrough]prisoner[end strikethrough] defendant is incompetent to proceed. The motion and certificate shall replace the signed oath by the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant is incompetent to proceed and that factual matters are at issue, the development or resolution of which require the [begin strikethrough]prisoner's[end strikethrough]defendant'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 [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant that have formed the basis of the motion.

(5) If the court finds that there are reasonable grounds to believe that a death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant is incompetent to proceed in a postconviction proceeding in which factual matters are at issue, the development or resolution of which require the [begin strikethrough]prisoner's[end strikethrough]defendant's input, the court shall order the [begin strikethrough]prisoner[end strikethrough]defendant 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 death-sentenced [begin

strikethrough]prisoner's[end strikethrough]defendant's counsel and the state attorney before appointment of the experts.

(6) The order appointing experts shall:

(A) identify the purpose of the evaluation and specify the area of inquiry that should be addressed;

(B) specify the legal criteria to be applied; and

(C) specify the date by which the report shall be submitted and to whom it shall be submitted.

(7) Counsel for both the death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant with respect to the issue of competence to proceed, as specified by the court in its order appointing the experts to evaluate the [begin strikethrough]prisoner[end strikethrough]defendant, and shall evaluate the [begin strikethrough]prisoner[end strikethrough]defendant as ordered.

(A) The experts first shall consider factors related to the issue of whether the death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant meets the criteria for competence to proceed, that is, whether the [begin strikethrough]prisoner[end strikethrough]defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner's[end strikethrough]defendant's capacity to understand the adversary nature of the legal process and the collateral proceedings;

(ii) the [begin strikethrough]prisoner's[end strikethrough]defendant'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) Any written report submitted by an expert shall:

(i) identify the specific matters referred for evaluation;

(ii) describe the evaluative procedures, techniques, and tests used in the examination and the purpose or purposes for each;

(iii) state the expert's clinical observations, findings, and opinions on each issue referred by the court for evaluation, and indicate specifically those issues, if any, on which the expert could not give an opinion; and

(iv) identify the sources of information used by the expert and present the factual basis for the expert's clinical findings and opinions.

(9) If the experts find that the death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant is incompetent to proceed, the experts shall report on any recommended treatment for the [begin strikethrough]prisoner[end strikethrough]defendant to attain competence to proceed. In considering the issues relating to treatment, the experts shall report on:

(A) the mental illness or [begin strikethrough]mental retardation[end strikethrough]intellectual disability causing the incompetence;

(B) the treatment or treatments appropriate for the mental illness or [begin strikethrough]mental retardation[end strikethrough]intellectual disability of the [begin strikethrough]prisoner[end strikethrough]defendant and an explanation of each of the possible treatment alternatives in order of choices; and

(C) the likelihood of the [begin strikethrough]prisoner[end strikethrough]defendant attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the [begin strikethrough]prisoner[end strikethrough]defendant will attain competence to proceed in the foreseeable future.

(10) Within 30 days after the experts have completed their examinations of the death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant, the court shall schedule a hearing on the issue of the [begin strikethrough]prisoner's[end strikethrough]defendant's competence to proceed.

(11) If, after a hearing, the court finds the [begin strikethrough]prisoner[end strikethrough]defendant competent to proceed, or, after having found the [begin strikethrough]prisoner[end strikethrough] defendant incompetent, finds that competency has been restored, the court shall enter its order so finding and shall proceed with a postconviction motion. The [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant 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 death-sentenced [begin strikethrough]prisoner[end strikethrough]defendant.

(13) If the court finds the [begin strikethrough]prisoner[end strikethrough]defendant incompetent or finds the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]in accordance with subdivision (f)(5)(D) of this rule[end strikethrough] 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]

(i) Dismissal of Postconviction Proceedings.

(1) This subdivision applies only when a [begin strikethrough]prisoner[end strikethrough]defendant seeks both to dismiss pending postconviction proceedings and to discharge collateral counsel.

(2) If the [begin strikethrough]prisoner[end strikethrough]defendant files the motion pro se, the Clerk of the Court shall serve copies of the motion on counsel of record for both the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant, collateral counsel, and the state shall be present at the hearing.

(4) The judge shall examine the [begin strikethrough]prisoner[end strikethrough]defendant at the hearing and shall hear argument of the [begin strikethrough]prisoner[end strikethrough]defendant, collateral counsel, and the state. No fewer than 2 or more than 3 qualified experts shall be appointed to examine the [begin strikethrough]prisoner[end strikethrough]defendant if the judge concludes that there are reasonable grounds to believe the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant is found to be incompetent for purposes of this rule, the court shall deny the motion without prejudice.

(6) If the [begin strikethrough]prisoner[end strikethrough]defendant is found to be competent for purposes of this rule, the court shall conduct a complete [begin strikethrough](Durocher/Faretta)[end strikethrough] (Durocher/Faretta) inquiry to determine whether the [begin strikethrough]prisoner[end strikethrough]defendant knowingly, freely and voluntarily wants to dismiss pending postconviction proceedings and discharge collateral counsel.

(7) If the court determines that the [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant has not made the decision to dismiss pending postconviction proceedings and discharge collateral 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 [begin strikethrough]prisoner[end strikethrough]defendant 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 [begin strikethrough]prisoner[end strikethrough]defendant 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.

Court Commentary

[No change]

Criminal Court Steering Committee Commentary

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. Murray v. Giarratano, 492 U.S.1 (1989). 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 attorneys should not be allowed to participate in capital postconviction litigation on a limited basis and that the attorney should remain in the case until the litigation is concluded or until the judge 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, and allows for witnesses to testify via videoconferencing. Finally, the amended rule requires the Attorney General to inform the Clerk of the Florida Supreme Court 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) [No change]

(b) Definitions.

(1) "Public records" has the meaning set forth in section 119.011(1). Florida Statutes [begin strikethrough](1997)[end strikethrough].

(2) "Trial court" means:

(A) the judge who entered the judgment and imposed the sentence of death; or

(B) the judge assigned by the chief judge.

(3) "Records repository" means the location designated by the secretary of state pursuant to section 27.708[begin strikethrough](2)[end strikethrough], Florida Statutes [begin strikethrough](2009)[end strikethrough], for archiving capital postconviction public records.

(4) "Collateral counsel" means a capital collateral regional counsel from one of the three regions in Florida; a private attorney who has been appointed to represent a capital defendant for postconviction litigation; or a private attorney who has been hired by the capital defendant or who has agreed to work pro bono for a capital defendant for postconviction litigation.

(5) "Agency" [begin strikethrough]and "person"[end strikethrough] means an entity or individual as defined in section 119.011[begin strikethrough](2)[end strikethrough], Florida Statutes [begin strikethrough](1997)[end strikethrough], that is subject to the requirements of producing public records for inspection under section 119.07[begin strikethrough](1)(a)[end strikethrough], Florida Statutes [begin strikethrough](1997)[end strikethrough].

(6) "Index" means a list of the public records included in each container of public records sent to the records repository.

(c) [No change]

(d) Action Upon Issuance of Mandate.

(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 ensure 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 ensure timely production of public records and a written notice of compliance by each additional person or agency with a copy to the trial court.

(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 ensure 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. 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 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) Any public records delivered to the records repository pursuant to these rules that are confidential or exempt from the requirements of section 119.07[begin strikethrough](1)[end strikethrough], Florida Statutes. or article I. section 24(a). Florida Constitution. must be separately contained. without being redacted. and sealed. The outside of the container must clearly identify that the public record is confidential or exempt and that the seal may not be broken without an order of the trial court. The outside of the container must identify the nature of the public records and the legal basis for the exemption.

(2) Upon the entry of an appropriate court order. sealed containers subject to an inspection by the trial court shall be shipped to the clerk of court. The containers may be opened only for inspection by the trial court in camera. The moving party shall bear all costs associated with the transportation and inspection of such records by the trial court. The trial court shall perform the unsealing and inspection without ex parte communications and in accord with procedures for reviewing sealed documents.

(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.

(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. 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 [begin strikethrough]hold a hearing[end strikethrough]hear and rule on any objection no later than the next 90-day status conference after the filing of [begin strikethrough]any[end strikethrough]the 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) [No change]

(i) Limitation on Postproduction Request for Additional Records.

(1) In order to obtain public records in addition to those provided under subdivisions (e), (f), (g), and (h) of this rule, collateral counsel shall file an affidavit in the trial court which:

(A) attests that collateral counsel has made a timely and diligent search of the records repository; and

(B) identifies with specificity those public records not at the records repository; and

(C) establishes that the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence; and

(D) shall be served in accord with subdivision (c)(1) of this rule.

(2) Within 30 days after the affidavit of collateral counsel is filed, the trial court [begin strikethrough]shall[end strikethrough]may order a person or agency to produce additional public records only upon finding each of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;

(B) collateral counsel's affidavit identifies with specificity those additional public records that are not at the records repository;

(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and

(D) the additional records request is not overly broad or unduly burdensome.

[begin strikethrough](j) Copying of Public Records. Collateral counsel shall

provide the personnel. supplies. and any necessary equipment to copy records held at the records repository.[end strikethrough]

[begin strikethrough](k)[end strikethrough](j) 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;

([begin strikethrough]4[end strikethrough]5) 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

([begin strikethrough]5[end strikethrough]6) resolve any dispute arising under this rule unless jurisdiction is in an appellate court.

[begin strikethrough](l)[end strikethrough](k) Scope of Production and Resolution of Production Issues.

(1) Unless otherwise limited. the scope of production under any part of this rule shall be that the public records sought are not privileged or immune from production and are either relevant to the subject matter of the proceeding under rule 3.851 or are reasonably calculated to lead to the discovery of admissible evidence.

(2) Any objections or motions to compel production of public records pursuant to this rule shall be filed within 30 days after the end of the production time period provided by this rule. Counsel for the party objecting or moving to compel shall file a copy of the objection or motion directly with the trial court. The trial court shall hold a hearing on the objection or motion on an expedited basis.

[begin strikethrough](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.[end strikethrough]

[begin strikethrough](m)[end strikethrough](l) 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.

Criminal Court Steering Committee

2014 Amendment. The rule is amended to require the State Attorney and Attorney General to manage and to ensure compliance with the public records process.

RULE 9.142. PROCEDURES FOR REVIEW IN DEATH PENALTY CASES

(a) Procedure in Death Penalty Appeals.

(1) Record.

(A) When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court. Transcripts of all proceedings conducted in the lower tribunal shall be included in the record under these rules.

(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) The supreme court shall take judicial notice of the appellate records in all prior appeals and writ proceedings involving a challenge to the same judgment of conviction and sentence of death. Appellate records subject to judicial notice under this subdivision shall not be duplicated in the record transmitted for the appeal under review.

(2)--(5) [No change]

(b)-(d) [No change]

Committee Notes

2009 Amendment. [No change]

Criminal Court Steering Committee Notes

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.

Proposed Case Management Orders:

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT IN AND FOR (enter county name) COUNTY. FLORIDA

FELONY DIVISION CASE NO. (enter case number)

STATE OF FLORIDA, vs. (enter defendant's name),

Defendant. --/

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 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 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).

* insure timely production of public records and written notice 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).

* insure timely production of public records and written notice 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).

* insure timely production of public records and written notice of compliance by the law enforcement agencies by (calculate and enter date = mandate + 120 days).

Trial counsel will

* provide original trial files including all work product and case information to collateral counsel and file a notice of compliance by (calculate and enter date = mandate + 45 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).

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.

* 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.

The central records repository will

* deliver any sealed records to (enter name and address of the clerk of the court), and notice the clerk, the court, and the parties pursuant to this standing order within 10 days of receipt of the sealed records from the agency.

A second case management order will be entered after disposition of the USSC petition for writ of certiorari.

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

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.

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:--

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),

FELONY DIVISION CASE NO. (enter case number)

Defendant. --/

SECOND CASE MANAGEMENT ORDER (FOLLOWING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI BY UNITED STATES SUPREME COURT)

This capital postconviction case comes before this Court for case management following the United States Supreme Court's denial of Defendant's Petition for Writ of Certiorari. The petition was denied on (enter date cert. denied). Various timeframes contained in Florida Rule of Criminal Procedure 3.851 are triggered from the date of the denial of the petition for writ of certiorari.

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 denied), 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).

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:

* Conduct the case management conference no later than (date = answer filing date above + 90 days).

* Order capital collateral counsel to produce, at the case management conference, all documentary exhibits, and to file at the conference 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.

* Order the State to produce no later than (date = case management conference date above + 60 days) all documentary exhibits, and to file at the conference 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.

* Conduct the evidentiary hearing no later than (date = case management conference date above + 150 days).

* 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).

* Order capital collateral counsel to file a simultaneous written closing argument no later than (date = transcript production date above + 20 days).

* Order the state to file a simultaneous written closing argument no later than (date = transcript production date above + 20 days).

* Enter the final order by (date = simultaneous written closing argument date above + 30 days, or 30 days after transcript production if no written closing arguments submitted).

* Commence quarterly chiefjudge reporting to the chiefjustice 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.

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.

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:--

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT IN AND FOR (enter county name) COUNTY, FLORIDA

FELONY DIVISION CASE NO. (enter case number)

STATE OF FLORIDA, vs. (enter defendant's name),

Defendant. --/

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.

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 + 30 days), if required.

* produce exhibit and witness lists, and expert reports by (calculate and enter date = case management conference date below + 60 days).

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.

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:--

IN THE CIRCUIT COURT OF THE (enter circuit number) JUDICIAL CIRCUIT IN AND FOR (enter county name) COUNTY, FLORIDA

FELONY DIVISION CASE NO. (enter case number)

STATE OF FLORIDA vs. (enter defendant's name),

Defendant. _/

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 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].

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-of-state 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.

* 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 realtime 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 + 20 days).

The State shall:

* Submit and serve a simultaneous written closing argument no later than (date =

transcript production date above + 20 days).

The Court will:

* Enter the final order no later than (date=simultaneous written closing argument date above + 30 days, or 30 days after transcript production if no written closing arguments submitted).

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.

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:--
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Title Annotation:Notice
Publication:Florida Bar News
Date:Jan 15, 2014
Words:13677
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