In Re: Amendments to the Florida Rules of Criminal Procedure - 2018 Regular-Cycle Report – Revised Opinion on Rehearing , 265 So. 3d 494 ( 2018 )

Supreme Court of Florida
____________
No. SC18-118
____________
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL
PROCEDURE — 2018 REGULAR-CYCLE REPORT.
October 4, 2018
REVISED OPINION
PER CURIAM.
Consistent with the order entered in this case on October 4, 2018, the
opinion dated July 19, 2018, is withdrawn and the following revised opinion is
substituted in its place.1
The Florida Bar’s Criminal Procedure Rules Committee (Committee) has
filed its regular-cycle report of proposed amendments to the Florida Rules of
1. We issue this revised opinion in response to the Motion for Rehearing
and Clarification and Notice of Scrivener’s Error filed by the Criminal Procedure
Rules Committee, requesting that the Court revise the amendment to rule 3.691
based on the Committee’s mistaken proposal, and need to clarify that rules 3.172,
3.986, and 3.989 presented technical amendments which were not reflected in the
Court’s earlier opinion.
Criminal Procedure, in accord with Florida Rule of Judicial Administration
2.140(b). We have jurisdiction2 and adopt the amendments as discussed below.
BACKGROUND
The Committee proposes amending the following rules and forms: 3.010
(Scope); 3.025 (State and Prosecuting Attorney Defined); 3.030 (Service and
Filing of Pleadings, Papers, and Documents); 3.130 (First Appearance); 3.131
(Pretrial Release); 3.172 (Acceptance of Guilty or Nolo Contendere Plea); 3.180
(Presence of Defendant); 3.190 (Pretrial Motions); 3.191 (Speedy Trial); 3.203
(Defendant’s Intellectual Disability as a Bar to Imposition of the Death Penalty);
3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed
with Sentencing: Disposition); 3.217 (Judgment of Not Guilty by Reason of
Insanity: Disposition of Defendant); 3.218 (Commitment of a Defendant Found
Not Guilty by Reason of Insanity); 3.219 (Conditional Release); 3.220
(Discovery); 3.240 (Change of Venue); 3.330 (Determination of Challenge for
Cause); 3.470 (Proceedings on Sealed Verdict); 3.590 (Time for and Method of
Making Motions; Procedure; Custody Pending Hearing); 3.600 (Grounds for New
Trial); 3.610 (Motion for Arrest of Judgment; Grounds); 3.691 (Post-Trial
Release); 3.692 (Petition to Seal or Expunge); 3.704 (The Criminal Punishment
2. See art. V, § 2(a), Fla. Const.
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Code); 3.710 (Presentence Report); 3.770 (Procedure When Pregnancy is Alleged
as Cause For Not Pronouncing Death Sentence); 3.810 (Commitment of
Defendant; Duty of Sheriff); 3.850 (Motion to Vacate, Set Aside, or Correct
Sentence); 3.986(c) (Forms Related to Judgment and Sentence; Form for Charges,
Costs, and Fees); 3.986(d) (Forms Related to Judgment and Sentence; Form for
Sentencing); 3.986(e) (Forms Related to Judgment and Sentence; Form for Order
of Probation); 3.986(f) (Forms Related to Judgment and Sentence; Form for
Community Control); 3.986(g) (Forms Related to Judgment and Sentence; Form
for Restitution Order); 3.989(a) (Affidavit, Petition, and Order to Expunge or Seal
Forms; Affidavit in Support of Petition); 3.989(b) (Affidavit, Petition, and Order to
Expunge or Seal Forms; Order to Expunge); 3.989(c) (Affidavit, Petition, and
Order to Expunge or Seal Forms; Order to Seal); 3.989(d) (Affidavit, Petition, and
Order to Expunge or Seal Forms; Petition to Expunge or Seal); 3.989(e) (Affidavit,
Petition, and Order to Expunge or Seal Forms; Petition to Expunge; Human
Trafficking Victim); 3.989(f) (Affidavit in Support of Petition; Human Trafficking
Victim); and 3.989(g) (Affidavit, Petition, and Order to Expunge or Seal Forms;
Order to Expunge; Human Trafficking Victim).3 In addition, new rule 3.9876
3. The Committee originally proposed amending rule 3.111 (Providing
Counsel to Indigents). However, upon concerns raised by the Committee’s clerk
representatives pertaining to that proposal, the Committee requested that the Court
withdraw the proposal to amend rule 3.111. By this opinion we grant that request.
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(Motion for Correction of Sentence) is proposed. Following the filing of the report
and the Court’s publication of the proposals in The Florida Bar News, comments
were filed by the Florida Public Defender Association (FPDA) and Public
Defender Blaise Trettis.
After reviewing the Committee’s proposals and considering the comments
filed and the Committee’s response thereto, we adopt the proposed amendments to
rules 3.010, 3.025, 3.030, 3.131, 3.180, 3.190, 3.191, 3.203, 3.213, 3.217, 3.218,
3.219, 3.220, 3.240, 3.330, 3.470, 3.590, 3.600, 3.610, 3.691, 3.692, 3.704, 3.710,
3.770, 3.810, 3.850, 3.986, 3.9876, and 3.989. With modification, we also adopt
the proposed amendments to rules 3.130 and 3.172. The notable changes to the
rules are summarized below.
AMENDMENTS
The Committee proposes amending rule 3.130 (First Appearance) in
pertinent part, to add new subdivision (b)(2) (Advice to Defendant; Use of Video
Recording to Provide Notice of Rights), to require that the judge confirm that
defendants, if advised of their rights by a pre-recorded video, had an opportunity to
view and understand the rights explained in the video recording. Based upon the
comment by the FPDA, however, we modify the Committee’s proposal to provide
as follows: “If the defendant was advised of the rights listed in subdivisions
(b)(1)(A)-(b)(1)(C) by pre-recorded video, the judge shall confirm separately with
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each individual defendant that such defendant had an opportunity to view and
understands the rights explained in the video recording.” As modified, greater
personal interaction between the judge and each individual defendant will be
encouraged.
Subdivision (k) (Summons on Misdemeanor Charge) of rule 3.131 (Pretrial
Release) is amended to require that the summons state “the title of the hearing to
be conducted” after “the nature of the offense.” This change will assist defendants
who may have multiple cases that are proceeding know the type of hearing for
which he or she is summoned.
The Committee proposes amending subdivision (c)(7) (Determination of
Voluntariness; Terms of Plea Agreement) of rule 3.172 (Acceptance of Guilty or
Nolo Contendere Plea), to require that the terms of the plea agreement include the
amount of time credited for time previously served and an explanation to the
defendant that any credit for time served not included in the time specified would
be a waiver of the defendant’s right to such credit. While the Committee’s
proposal was based upon a referral from the Court that the Committee “propose
language adding a provision to subdivision (c) concerning the trial court advising
the defendant on the issue of credit for time served when determining the
voluntariness of a plea of guilty or nolo contendere,” we decline to amend rule
3.172 as proposed. Instead, we agree with the comment from the FPDA that
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unintended consequences of the amendment may include impairment of plea
bargaining, uninformed waivers, conflict with precedent, and an increase of
judicial labor. However, technical changes to rule 3.172 are made.
Rule 3.180 (Presence of Defendant) is amended to resolve a conflict
between rule 3.130 (First Appearance) and rule 3.180, by permitting a defendant to
appear at the first appearance either physically or by electronic audiovisual device,
as contemplated under rule 3.130.
Rule 3.191(l)(5) (Speedy Trial) is amended to correct the conjunction from
“and” to “or” in the list of “exceptional circumstances” for which the trial court
may order an extension of the time period for bringing a defendant to trial, as the
trial court does not have to find more than one circumstance to grant an extension.
In regard to rule 3.213 (Continuing Incompetency to Proceed, Except
Incompetency to Proceed with Sentencing: Disposition), the Committee originally
proposed numerous changes. Following the comment by the FPDA, however, the
Committee revised its proposal to amend rule 3.213 in its entirety. As amended,
rule 3.213 is reorganized for clarity, to make it easier to determine the dismissal
schedule within the rule. In addition, new subdivision (a)(3) (Dismissal without
Prejudice during Continuing Incompetency) adds the provision for dismissal after
three years if the charge is not listed in section 916.145(1), Florida Statutes
(Dismissal of charges), as enacted in chapter 2016-135, section 3, Laws of Florida.
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In addition to technical changes to rule 3.704 (The Criminal Punishment
Code), new subdivisions (d)(24)(A)-(d)(24)(B) are added in response to chapter
2014-4, Laws of Florida, which amended section 921.0024, Florida Statutes, to
provide that sentence points be multiplied by 2.0 for specified sex offenses
committed by an adult upon a minor under certain circumstances, unless
application of the multiplier results in the lowest permissible sentence exceeding
the statutory maximum.
Rule 3.710(a) (Presentence Report; Cases in Which Court Has Discretion) is
amended to clarify the rule by adding that, in addition to probation, a statutorily
required mandatory minimum sentence may be imposed without a presentence
investigation upon a defendant found guilty of a first felony offense or found guilty
of a felony while under the age of eighteen. In addition, the term “shall” is
replaced by “may,” because the sentence of probation or mandatory minimum is
discretionary. Lastly, the language added to the end of subdivision (a), “The
requirements of this subdivision are not applicable to a subsequent violation of
probation proceeding,” is based upon Barber v. State, 293 So. 2d 710 (Fla. 1974).
Rule 3.986 (Forms Related to Judgment and Sentence) is amended to
simplify the rule by deleting the lists of costs, special provisions, and general
provisions, and to require the court to insert these items. Following are changes to
specific provisions of the rule. Under subdivision (c) (Form for Charges, Costs,
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and Fees), the checklist of charges/costs/fees is deleted and is replaced with the
following directive: “[Insert list of mandatory fines, discretionary fines, and
restitution, if any.]” In subdivision (d) (Form for Sentencing), the list of special
provisions is deleted and instead is replaced with the following: “[Include all
findings, sentencing enhancements, and mandatory minimum provisions, as
authorized by law and pronounced at sentencing.]” A number of changes are made
to subdivision (e) (Form for Order of Probation). First, the checklist of conditions
of probation and special conditions is deleted, and is replaced with “GENERAL
CONDITIONS: [List the general conditions of probation pursuant to section
948.03, Florida Statutes.]” and “SPECIAL CONDITIONS: [List the special
conditions of probation as orally pronounced and authorized by law.]” In addition,
below the space for “Other,” the paragraph pertaining to rescinding or modifying
any of the conditions of probation is modified. Also, we delete the sentence “(This
paragraph applies only if section 1 or section 2 is checked.)” under subdivision (e).
Last, in subdivision (g) (Form for Restitution Order), the checklist of restitution
options is deleted and replaced by the text “[Include all restitution and findings, as
authorized by law and pronounced at sentencing.].”
Finally, we adopt a new form, rule 3.9876 (Motion for Correction of
Sentence), which was suggested to the Committee by the Florida Supreme Court
Criminal Court Steering Committee. The new form pertains to rule 3.800(a)
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motions, including those for correction of an illegal sentence, an incorrect
sentencing scoresheet, or an erroneous sexual predator designation. The form is
written in a “question-and-answer format,” similar to the format previously
approved by the Court for rule 3.9875 (Motion for Jail Credit). See In re
Amendments to Fla. Rules of Crim. Pro., 185 So. 3d 1169 (Fla. 2015).
CONCLUSION
Accordingly, we amend the Florida Rules of Criminal Procedure as reflected
in the appendix to this opinion. New language is indicated by underscoring, and
deletions are indicated by struck-through type. The committee notes are offered
for explanation only and are not adopted as an official part of the rules. The
amendments shall become effective January 1, 2019, at 12:01 a.m.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Criminal Procedure
Sheila Ann Loizos, Chair, Jacksonville, Florida, Judge Jon Berkley Morgan, Past
Chair, Criminal Procedure Rules Committee, Kissimmee, Florida, Joshua E.
Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida
Bar, Tallahassee, Florida,
for Petitioner
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Blaise Trettis, Public Defender, Eighteenth Judicial Circuit, Viera, Florida; Carlos
J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender,
Eleventh Judicial Circuit, Miami Florida,
Responding with Comments
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APPENDIX
RULE 3.010. SCOPE
These rules shall govern the procedure in all criminal proceedings in state
courts including proceedings involving direct and indirect criminal contempt,
proceedings under rule 3.850, and vehicular and pedestriancriminal traffic offenses
insofar as providedthese rules are made applicable by section III, the Florida Rules
of Practice and Procedure for Traffic Courts. These rules shall not apply to direct
or indirect criminal contempt of a court acting in any appellate capacity. These
rules shall not apply to rules 3.811 and 3.812. These rules shall be known as the
Florida Rules of Criminal Procedure and may be cited as Fla. R. Crim. P.
Committee Notes
[No Changes]
RULE 3.025. STATE AND PROSECUTING ATTORNEY DEFINED
Whenever the terms “state,” “state attorney,” “prosecutor,” “prosecution,”
“prosecuting officer,” or “prosecuting attorney” are used in these rules, they shall
be construed to mean the prosecuting authority representing the sState of Florida.
Committee Notes
[No Changes]
RULE 3.030. SERVICE AND FILING OF PLEADINGS, PAPERS, AND
DOCUMENTS
(a) Service. Every pleading subsequent to the initial indictment or
information on which a defendant is to be tried unless the court otherwise orders,
and every order not entered in open court, every written motion unless it is one
about which a hearing ex parte is authorized, and every written notice, demand,
and similar document shall be served on each party in conformity with Florida
Rule of Judicial Administration 2.516.; however, n Nothing herein shall be
construed to require that a plea of not guilty shall be in writing.
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(b) Filing. All documents that are “court records” as defined in the
Florida Rules of Judicial Administration must be filed with the clerk in
accordanceFilings of all pleadings and documents shall comply with Florida Rules
of Judicial Administration 2.5202.505, 2.515, and 2.525.
(c) [No Changes]
Committee Notes
[No Changes]
RULE 3.130. FIRST APPEARANCE
(a) Prompt First Appearance. Except when previously released in a
lawful manner, every arrested person shall be taken before a judicial officerjudge,
either in person or by electronic audiovisual device in the discretion of the court,
within 24 hours of arrest. In the case of a child in the custody of juvenile
authorities, against whom an information or indictment has been filed, the child
shall be taken for a first appearance hearing within 24 hours of the filing of the
information or indictment. The chief judge of the circuit for each county within the
circuit shall designate 1 or more judicial officersjudges from the circuit court, or
county court, to be available for the first appearance and proceedings. The state
attorney or an assistant state attorney and public defender or an assistant public
defender shall attend the first appearance proceeding either in person or by other
electronic means. First appearance hearings shall be held with adequate notice to
the public defender and state attorney. An official record of the proceedings shall
be maintained. If the defendant has retained counsel or expresses a desire to and is
financially able, the attendance of the public defender or assistant public defender
is not required at the first appearance, and the judge shall follow the procedure
outlined in subdivision (c)(2).
(b) Advice to Defendant.
(1) Notice of Charges and Rights. At the defendant’s first
appearance the judge shall immediately inform the defendant of the charge,
including an alleged violation of probation or community control, and provide the
defendant with a copy of the complaint. The judge shall also adequately advise the
defendant that:
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(1A) the defendant is not required to say anything, and that
anything the defendant says may be used against him or her;
(2B) if unrepresented, that the defendant has a right to counsel,
and, if financially unable to afford counsel, that counsel will be appointed; and
(3C) the defendant has a right to communicate with counsel,
family, or friends, and if necessary, will be provided reasonable means to do so.
(2) Use of Video Recording to Provide Notice of Rights. If the
defendant was advised of the rights listed in subdivisions (b)(1)(A)–(b)(1)(C) by
pre-recorded video, the judge shall confirm separately with each individual
defendant that such defendant had an opportunity to view and understands the
rights explained in the video recording.
(c) [No Change]
(d) Pretrial Release. The judicial officerjudge shall proceed to determine
conditions of release pursuant to rule 3.131. For a defendant who has been arrested
for violation of his or her probation or community control by committing a new
violation of law, the judicial officerjudge:
(1) Mmay order the offender to be taken before the court that
granted the probation or community control if the offender admits the violation; or
(2) Iif the offender does not admit the violation at first appearance
hearing, the judicial officerjudge may commit and order the offender to be brought
before the court that granted probation or community control, or may release the
offender with or without bail to await further hearing, notwithstanding section
907.041, Florida Statutes, relating to pretrial detention and release. In determining
whether to require or set the amount of bail, the judicial officerjudge may consider
whether the offender is more likely than not to receive a prison sanction for the
violation.
Committee Notes
[No Changes]
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RULE 3.131. PRETRIAL RELEASE
(a) Right to Pretrial Release. Unless charged with a capital offense or an
offense punishable by life imprisonment and the proof of guilt is evident or the
presumption is great, every person charged with a crime or violation of municipal
or county ordinance shall be entitled to pretrial release on reasonable conditions.
As a condition of pretrial release, whether such release is by surety bail bond or
recognizance bond or in some other form, the defendant shall refrain from any
contact of any type with the victim, except through pretrial discovery pursuant to
the Florida Rules of Criminal Procedure and shall comply with all conditions of
pretrial release as ordered by the court. Upon motion by the defendant when bail is
set, or upon later motion properly noticed pursuant to law, the court may modify
the condition precluding victim contact if good cause is shown and the interests of
justice so require. The victim shall be permitted to be heard at any proceeding in
which such modification is considered, and the state attorney shall notify the
victim of the provisions of this subsectionsubdivision and of the pendency of any
such proceeding. If no conditions of release can reasonably protect the community
from risk of physical harm to persons, assure the presence of the accused at trial, or
assure the integrity of the judicial process, the accused may be detained.
(b)-(g) [No Changes]
(h) Bail after Recommitment. If the defendant applies to be admitted to
bail after recommitment, the court that recommitted the defendant shall determine
conditions of release, if any, subject to the limitations of subdivision (b) above.
(i)-(j) [No Changes]
(k) Summons on Misdemeanor Charge. When a complaint is filed
charging the commission of a misdemeanor only and the judge deems that process
should issue as a result, or when an indictment or information on which the
defendant is to be tried charging the commission of a misdemeanor only, and the
person named in it is not in custody or at large on bail for the offense charged, the
judge shall direct the clerk to issue a summons instead of a capias unless the judge
has reasonable ground to believe that the person will not appear in response to a
summons, in which event an arrest warrant or a capias shall be issued with the
amount of bail endorsed on it. The summons shall state substantially the nature of
the offense, the title of the hearing to be conducted, and shall command the person
against whom the complaint was made to appear before the judge issuing the
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summons or the judge having jurisdiction of the offense at a time and place stated
in it.
(l) [No Changes]
Committee Notes
[No Changes]
Court Comment
[No Changes]
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE
PLEA
(a)-(b) [No Changes]
(c) Determination of Voluntariness. Except when a defendant is not
present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge must,
when determining voluntariness, place the defendant under oath, address the
defendant personally, and determine on the record that he or she understands:
(1)-(9) [No Changes]
(10) Driver’s License Suspension or Revocation. If the defendant
pleads guilty or nolo contendere and the offense to which the defendant is pleading
is one for which automatic, mandatory driver’s license suspension or revocation is
required by law to be imposed, (either by the court or by a separate agency), the
plea will provide the basis for the suspension or revocation of the defendant’s
driver’s license.
(d) [No Changes]
(e) Acknowledgment by Defendant. Before the trial judge accepts a
guilty or nolo contendere plea, the judge must determine that the defendant either:
(1) acknowledges his or her guilt; or
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(2) acknowledges that he or she feels the plea to be in his or her
best interest, while maintaining his or her innocence.
(f)-(j) [No Changes]
Committee Notes
1977 Adoption-2005 Amendment [No Changes]
2015 Amendment. In view of the holdings in Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473 (2010), and Hernandez v. State, 124 So. 3d 757 (Fla. 2012),
the Committee felt it appropriate to expand the requirements in subdivision (c)(8).
RULE 3.180. PRESENCE OF DEFENDANT
(a) Presence of Defendant. In all prosecutions for crime the defendant
shall be present:
(1)-(3) [No Changes]
(4) at the beginning of the trial during the examination,
challenging, impanelling, and swearing of the jury;
(5)-(9) [No Changes]
(b) Presence; dDefinition. Except as permitted by rule 3.130 relating to
first appearance hearings, Aa defendant is present for purposes of this rule if the
defendant is physically in attendance for the courtroom proceeding, and has a
meaningful opportunity to be heard through counsel on the issues being discussed.
(c)-(e) [No Changes]
Committee Notes
[No Changes]
RULE 3.190. PRETRIAL MOTIONS
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(a)-(b) [No Changes]
(c) Time for Moving to Dismiss. Unless the court grants further time,
the defendant shall move to dismiss the indictment or information either before or
at arraignment. The court in its discretion may permit the defendant to plead and
thereafter to file a motion to dismiss at a time to be set by the court. Except for
objections based on fundamental grounds, every ground for a motion to dismiss
that is not presented by a motion to dismiss within the time hereinabove provided
herein, shall be considered waived. However, the court may at any time entertain a
motion to dismiss on any of the following grounds:
(1)-(4) [No Changes]
(d) [No Changes]
(e) Effect of Sustaining a Motion to Dismiss. If the motion to dismiss is
sustained, the court may order that the defendant be held in custody or admitted to
bail for a reasonable specified time pending the filing of a new indictment or
information. If a new indictment or information is not filed within the time
specified in the order, or within such additional time as the court may allow for
good cause shown, the defendant, if in custody, shall be discharged therefrom,
unless some other charge justifies a continuation in custody. If the defendant has
been released on bail, the defendant and the sureties shall be exonerated; if money
or bonds have been deposited as bail, the money or bonds shall be refunded.
(f)-(j) [No Changes]
Committee Notes
[No Changes]
RULE 3.191. SPEEDY TRIAL
(a)-(c) [No Changes]
(d) Custody. For purposes of this rule, a person is taken into custody:
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(1) when the person is arrested as a result of the conduct or
criminal episode that gave rise to the crime charged,; or
(2) when the person is served with a notice to appear in lieu of
physical arrest.
(e)-(i) [No Changes]
(j) Delay and Continuances; Effect on Motion. If trial of the accused
does not commence within the periods of time established by this rule, a pending
motion for discharge shall be granted by the court unless it is shown that:
(1)-(4) [No Changes]
If the court finds that discharge is not appropriate for reasons under subdivisions
(j)(2), (j)(3), or (j)(4), the pending motion for discharge shall be denied, provided,
however, that trial shall be scheduled and commence within 90 days of a written or
recorded order of denial.
(k) [No Changes]
(l ) Exceptional Circumstances. As permitted by subdivision (i) of this
rule, the court may order an extension of the time periods provided under this rule
when exceptional circumstances are shown to exist. Exceptional circumstances
shall not include general congestion of the court’s docket, lack of diligent
preparation, failure to obtain available witnesses, or other avoidable or foreseeable
delays. Exceptional circumstances are those that, as a matter of substantial justice
to the accused or the state or both, require an order by the court. These
circumstances include:
(1)-(4) [No Changes]
(5) a showing that a delay is necessary to accommodate a
codefendant, when there is reason not to sever the cases to proceed promptly with
trial of the defendant; andor
(6) [No Changes]
(m)-(p) [No Changes]
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Committee Notes
1972 Amendment-1992 Amendment [No Changes]
2018 Amendment. In light of the ruling in Smart v. State, 179 So. 3d 477 (Fla. 4th
DCA 2015), as well as the precedent cited therein, the committee notes that the
reference to the swearing in of trial jury panel for voir dire examination contained
in the Florida Rule of Criminal Procedure 3.191(c) relates to the giving of the oath
contained in Florida Rule of Criminal Procedure 3.300(a). The oath is not required
to be given in any particular location or by any particular official.
RULE 3.203. DEFENDANT’S INTELLECTUAL DISABILITY AS A
BAR TO IMPOSITION OF THE DEATH PENALTY
(a) [No Changes]
(b) Definition of Intellectual Disability. As used in this rule, the term
“intellectual disability” means significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior and manifested
during the period from conception to age 18. The term “significantly subaverage
general intellectual functioning,” for the purpose of this rule, means performance
that is two2 or more standard deviations from the mean score on a standardized
intelligence test authorized by the Department of Children and Family
ServicesFamilies in rule 65G-4.011 of the Florida Administrative Code. The term
“adaptive behavior,” for the purpose of this rule, means the effectiveness or degree
with which an individual meets the standards of personal independence and social
responsibility expected of his or her age, cultural group, and community.
(c) Motion for Determination of Intellectual Disability as a Bar to
Execution:; Contents; Procedures.
(1) [No Changes]
(2) The motion shall state that the defendant is intellectually
disabled and, if the defendant has been tested, evaluated, or examined by one1 or
more experts, the names and addresses of the experts. Copies of reports containing
the opinions of any experts named in the motion shall be attached to the motion.
The court shall appoint an expert chosen by the state attorney if the state attorney
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so requests. The expert shall promptly test, evaluate, or examine the defendant and
shall submit a written report of any findings to the parties and the court.
(3) If the defendant has not been tested, evaluated, or examined by
one1 or more experts, the motion shall state that fact and the court shall appoint
two2 experts who shall promptly test, evaluate, or examine the defendant and shall
submit a written report of any findings to the parties and the court.
(4)-(5) [No Changes]
(d)-(i) [No Changes]
RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED,
EXCEPT INCOMPETENCY TO PROCEED WITH
SENTENCING:; DISPOSITION
(a) Dismissal without Prejudice during Continuing Incompetency.
After a determination that a person is incompetent to stand trial or
proceed with a probation or community control violation hearing, the charge(s):
(1) If at any time after 5 years following a determination that a
person is incompetent to stand trial or proceed with a probation or community
control violation hearing when charged with a felony, or 1 year when charged with
a misdemeanor, the court, after hearing, determines that the defendant remains
incompetent to stand trial or proceed with a probation or community control
violation hearing, that there is no substantial probability that the defendant will
become mentally competent to stand trial or proceed with a probation or
community control violation hearing in the foreseeable future, and that the
defendant does not meet the criteria for commitment, it shall dismiss the charges
against the defendant without prejudice to the state to refile the charges should the
defendant be declared competent to proceed in the future. shall be dismissed 1 year
after a finding if the charge is a misdemeanor;
(2) If the incompetency to stand trial or to proceed is due to
intellectual disability or autism, the court shall dismiss the charges within a
reasonable time after such determination, not to exceed 2 years for felony charges
and 1 year for misdemeanor charges, unless the court specifies in its order the
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reasons for believing that the defendant will become competent within the
foreseeable future and specifies the time within which the defendant is expected to
become competent. The dismissal shall be without prejudice to the state to refile
should the defendant be declared competent to proceed in the future. shall be
dismissed no later than 2 years after a finding if incompetency is due to intellectual
disability or autism;
(3) may be dismissed 3 years after a finding, unless a charge is
listed in section 916.145, Florida Statutes; or
(4) shall be dismissed after a finding that the defendant has remained
incompetent for 5 continuous and uninterrupted years;
provided that the court finds that the defendant remains incompetent to stand trial
or proceed with a probation or community control violation hearing unless the
court in its order specifies its reasons for believing that the defendant is expected to
become competent to proceed. A dismissal under this rule shall be without
prejudice to the state to refile the charge(s) should the defendant be declared
competent to proceed in the future.
(b) Commitment or Treatment during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a
person is incompetent to stand trial or proceed with a probation or community
control violation hearing when charged with a felony, or 1 year when charged with
a misdemeanor, the court, after hearing, determines that the defendant remains
incompetent to stand trial or proceed with a probation or community control
violation hearing, that there is no substantial probability that the defendant will
become mentally competent to stand trial or proceed with a probation or
community control violation hearing in the foreseeable future, and that the
defendant does meet the criteria for commitment, the court shall dismiss the
charges against the defendant and commit the defendant to the Department of
Children and Family Services for involuntary hospitalization or residential services
solely under the provisions of law or may order that the defendant receive
outpatient treatment at any other facility or service on an outpatient basis subject to
the provisions of those statutes. In the order of commitment, the judge shall order
that the administrator of the facility notify the state attorney of the committing
circuit no less than 30 days prior to the anticipated date of release of the defendant.
If charges are dismissed pursuant to this subdivision, the dismissal shall be without
prejudice to the state to refile the charges should the defendant be declared
- 21 -
competent to proceed in the future. If the defendant meets the criteria for
commitment under section 394.467, Florida Statutes, the court shall commit the
defendant to the Department of Children and Families for involuntary
hospitalization solely under the provisions of law. If the defendant meets the
criteria of section 394.4655, Florida Statutes, the court may order that the
defendant receive outpatient treatment at any other facility or service on an
outpatient basis subject to the provisions of those statutes. In the order of
commitment, the judge shall order that the administrator of an inpatient facility
notify the state attorney of the committing circuit no less than 30 days prior to the
anticipated date of release of the defendant.
(2) [No Changes]
(c) [No Changes]
Committee Notes
[No Changes]
RULE 3.217. JUDGMENT OF NOT GUILTY BY REASON OF
INSANITY:; DISPOSITION OF DEFENDANT
(a) [No Changes]
(b) Treatment, Commitment, or Discharge after Acquittal. When a
person is found not guilty of the offense or is found not to be in violation of
probation or community control by reason of insanity, if the court then determines
that the defendant presently meets the criteria set forth by law, the court shall
commit the defendant to the Department of Children and Family ServicesFamilies
or shall order outpatient treatment at any other appropriate facility or service, or
shall discharge the defendant. Any order committing the defendant or requiring
outpatient treatment or other outpatient service shall contain:
(1)-(3) [No Changes]
Committee Notes
- 22 -
[No Changes]
RULE 3.218. COMMITMENT OF A DEFENDANT FOUND NOT
GUILTY BY REASON OF INSANITY
(a) Commitment; 6-Month Report. The Department of Children and
Family ServicesFamilies shall admit to an appropriate facility a defendant found
not guilty by reason of insanity under rule 3.217 and found to meet the criteria for
commitment for hospitalization and treatment and may retain and treat the
defendant. No later than 6 months from the date of admission, the administrator of
the facility shall file with the court a report, and provide copies to all parties, which
shall address the issues of further commitment of the defendant. If at any time
during the 6-month period, or during any period of extended hospitalization that
may be ordered under this rule, the administrator of the facility shall determine that
the defendant no longer meets the criteria for commitment, the administrator shall
notify the court by such a report and provide copies to all parties. The procedure
for determinations of the confidential status of reports is governed by Rule of
Judicial Administration 2.420.
(b)-(c) [No Changes]
Committee Notes
[No Changes]
RULE 3.219. CONDITIONAL RELEASE
(a) [No Changes]
(b) Defendant’s Failure to Comply. If it appears at any time that the
defendant has failed to comply with the conditions of release, or that the
defendant’s condition has deteriorated to the point that inpatient care is required, or
that the release conditions should be modified, the court, after hearing, may modify
the release conditions or, if the court finds the defendant meets the statutory
- 23 -
criteria for commitment, may order that the defendant be recommitted to the
Department of Children and Family ServicesFamilies for further treatment.
(c) [No Changes]
Committee Notes
[No Changes]
RULE 3.220. DISCOVERY
(a)-(g) [No Changes]
(h) Discovery Depositions.
(1)-(4) [No Changes]
(5) Depositions of Law Enforcement Officers. Subject to the
general provisions of subdivision (h)(1), law enforcement officers shall appear for
deposition, without subpoena, upon written notice of taking deposition delivered at
the physical address of the law enforcement agency or department, or an e-mail or
other address designated by the law enforcement agency or department, five5 days
prior to the date of the deposition. Law enforcement officers who fail to appear for
deposition after being served notice as required by the rule may be adjudged in
contempt of court.
(6) [No Changes]
(7) Defendant’s Physical Presence. A defendant shall not be
physically present at a deposition except on stipulation of the parties or as provided
by this rule. The court may order the physical presence of the defendant on a
showing of good cause. The court may consider:
(A) the need for the physical presence of the defendant to
obtain effective discovery,;
(B) the intimidating effect of the defendant’s presence on the
witness, if any,;
- 24 -
(C) any cost or inconvenience which may result,; and
(D) any alternative electronic or audio/visual means
available.
(8) [No Changes]
(i) Investigations Not to Be Impeded. Except as is otherwise provided
as to matters not subject to disclosure or restricted by protective orders, neither the
counsel for the parties nor other prosecution or defense personnel shall advise
persons having relevant material or information, (except the defendant), to refrain
from discussing the case with opposing counsel or showing opposing counsel any
relevant material, nor shall they otherwise impede opposing counsel’s investigation
of the case.
(j) Continuing Duty to Disclose. If, subsequent to compliance with the
rules, a party discovers additional witnesses or material that the party would have
been under a duty to disclose or produce at the time of the previous compliance,
the party shall promptly disclose or produce the witnesses or material in the same
manner as required under these rules for initial discovery. This duty includes any
additional recorded or unrecorded statements of any person disclosed under
subdivisions (b)(1)(A) or (d)(1)(A) of this rule that materially alter a written or
recorded statement previously provided under these rules.
(k) [No Changes]
(l ) Protective Orders.
(1) [No Changes]
(2) Motion to Terminate or Limit Examination. At any time
during the taking of a deposition, on motion of a party or of the deponent, and
upon a showing that the examination is being conducted in bad faith or in such
manner as to unreasonably annoy, embarrass, or oppress the deponent or party, the
court in which the action is pending or the circuit court where the deposition is
being taken may:
(1A) terminate the deposition,;
- 25 -
(2B) limit the scope and manner of the taking of the
deposition,;
(3C) limit the time of the deposition,;
(4D) continue the deposition to a later time,;
(5E) order the deposition to be taken in open court,; and, in
addition, may
(6F) impose any sanction authorized by this rule.
If the order terminates the deposition, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon demand of any
party or deponent, the taking of the deposition shall be suspended for the time
necessary to make a motion for an order.
(m) [No Changes]
(n) Sanctions.
(1)-(2) [No Changes]
(3) Every request for discovery or response or objection, including
a notice of deposition made by a party represented by an attorney, shall be signed
by at least 1 attorney of record, as defined by Florida Rule of Judicial
Administration 2.505, in the attorney’s individual name, whose address shall be
stated. A party who is not represented by an attorney shall sign the request,
response, or objection and list his or her address. The signature of the attorney
constitutes a certification that the document complies with Florida Rule of Judicial
Administration 2.515. The signature of the attorney or party constitutes a
certification that the signer has read the request, response, or objection and that to
the best of the signer’s knowledge, information, or belief formed after a reasonable
inquiry it is:
(A)-(C) [No Changes]
If a request, response, or objection is not signed, it shall be stricken unless it
is signed promptly after the omission is called to the attention of the party making
- 26 -
the request, response, or objection, and a party shall not be obligated to take any
action with respect to it until it is signed.
If a certification is made in violation of this rule, the court, on motion or on
its own initiative, shall impose on the person who made the certification, the firm
or agency with which the person is affiliated, the party on whose behalf the
request, response, or objection is made, or any or all of the above an appropriate
sanction, which may include an order to pay the amount of the reasonable expenses
incurred because of the violation, including a reasonable attorney’s fee.
(o) [No Changes]
Committee Notes
1968 Adoption-1998 Amendment [No Changes]
2018 Amendment. The amendments to subdivision (j) are a clarification of
the rule based on Scipio v. State, 928 So. 2d 1138 (Fla. 2006), and Washington v.
State, 151 So. 3d 544 (Fla. 1st DCA 2014).
Court Commentary
[No Changes]
RULE 3.240. CHANGE OF VENUE
(a)-(e) [No Changes]
(f) Transmittal of Documents. The clerk shall enter on the
minutesdocket the order of removal and transmit to the court to which the cause is
removed a certified copy of the order of removal and of the record and proceedings
and of the undertakings of the witnesses and the accused.
(g) [No Changes]
(h) Multiple Defendants. If there are several defendants and an order is
made removing the cause on the application of one1 or more but not all of them,
the other defendants shall be tried and all proceedings had against them in the
- 27 -
county in which the cause is pending in all respects as if no order of removal had
been made as to any defendant.
(i) [No Changes]
(j) Prosecuting Attorney’s Obligation. The prosecuting attorney of the
court to which the cause is removed may amend the information, or file a new
information,. andAny such new information shall be entitled in the county into
which the trial is hadthe cause is removed, but the allegations as to the place of
commission of the crime shall refer to the county in which the crime was actually
committed.
Committee Notes
[No Changes]
RULE 3.330. DETERMINATION OF CHALLENGE FOR CAUSE
The court shall determine the validity of a challenge of an individual juror
for cause. In making such determination the juror challenged and any other
material witnesses, produced by the parties, may be examined onunder oath by
either party. The court may consider also any other evidence material to such
challenge.
Committee Notes
[No Changes]
RULE 3.470. PROCEEDINGS ON SEALED VERDICT
The court may, with the consent of the prosecuting attorney and the
defendant, direct the jurors that if they should agree upon a verdict during a
temporary adjournment of the court, the foreperson and each juror shall sign the
same, and the verdict shall be sealed in an envelope and delivered to the officer
having charge of the jury, after which the jury may separate until the next
convening of the court reconvenes. When the court authorizes the rendition of a
- 28 -
sealed verdict, it shall admonish the jurors not to make any disclosure, of any kind,
concerning it or to speak with other persons concerning the causecase, until their
verdict shall have been rendered in open court. The officer shall, forthwith, deliver
the sealed verdict to the clerk. When the jurors have reassembled in open court, the
envelope shall be opened by the court or clerk, and the same proceedings shall be
had as in the receiving of othermust be received in the same manner as unsealed
verdicts.
Committee Notes
[No Changes]
RULE 3.590. TIME FOR AND METHOD OF MAKING MOTIONS;
PROCEDURE; CUSTODY PENDING HEARING
(a) Time for Filing in Noncapital Cases. In cases in which the state does
not seek the death penalty, a motion for new trial or a motion in arrest of judgment,
or both, may be made, either orally in open court or in writing and filed with the
clerk’s office, within 10 days after the rendition of the verdict or the finding of the
court. A timely motion may be amended to state new grounds without leave of
court prior to expiration of the 10-day period and in the discretion of the court at
any other time before the motion is determined.
(b) Time for Filing in Capital Cases Where the Death Penalty Is an
Issue. A motion for new trial or a motion in arrest of judgment, or both, or for a
new penalty phase hearing may be made within 10 days after written final
judgment of conviction and sentence of life imprisonment or death is filed. The
motion may address grounds which arose in the guilt phase and the penalty phase
of the trial. Separate motions for the guilt phase and the penalty phase may be
filed. The motion or motions may be amended without leave of court prior to the
expiration of the 10-day period, and in the discretion of the court, at any other time
before the motion is determined.
(c) [No Changes]
(d) Written Motions. The motion may be in writing, filed with the clerk;
it shall state the grounds on which it is based. A copy of a written motion shall be
served on the prosecuting attorney. When the court sets a time for the hearing
- 29 -
thereon, the clerk may notify counsel for the respective parties or the attorney for
the defendant may serve notice of hearing on the prosecuting officerattorney.
(e) Custody Pending Motion. Until the motion is disposed of, aA
defendant who is not already at liberty on bail shall remain in custody and not be
allowed liberty on bail unless the court, on good cause shown (if the offense for
which the defendant is convicted is bailable), permits the defendant to be released
on bail until the motion is disposed ofthe court disposes of the motion. If the
defendant is already at liberty on bail that is deemed by the court to be good and
sufficient, itthe court may permit the defendant to continue at large on such bail
until the motion for new trial is heard and disposed ofthe court disposes of the
motion.
Committee Notes
[No Changes]
RULE 3.600. GROUNDS FOR NEW TRIAL
(a) Grounds for Granting. The court shall grant a new trial only if any
of the following grounds is established.:
(1) Tthe jurors decided the verdict by lot.;
(2) Tthe verdict is contrary to law or the weight of the evidence.; or
(3) Nnew and material evidence, which, if introduced at the trial
would probably have changed the verdict or finding of the court, and which the
defendant could not with reasonable diligence have discovered and produced at the
trial, has been discovered.
(b) Grounds for Granting if Prejudice is Established. The court shall
grant a new trial if any of the following grounds is established, providing
substantial rights of the defendant were prejudiced thereby.because:
(1) Tthe defendant was not present at any proceeding at which the
defendant’s presence is required by these rules.;
- 30 -
(2) Tthe jury received any evidence out of court, other than that
resulting from an authorized view of the premises.;
(3) Tthe jurors, after retiring to deliberate upon the verdict,
separated without leave of court.;
(4) Aany juror was guilty of misconduct.;
(5) Tthe prosecuting attorney was guilty of misconduct.;
(6) Tthe court erred in the decision of any matter of law arising
during the course of the trial.;
(7) Tthe court erroneously instructed the jury on a matter of law or
refused to give a proper instruction requested by the defendant.; or
(8) Ffor any other cause not due to the defendant’s own fault, the
defendant did not receive a fair and impartial trial.
(c) [No Changes]
Committee Notes
[No Changes]
RULE 3.610. MOTION FOR ARREST OF JUDGMENT; GROUNDS
The court shall grant a motion in arrest of judgment only on 1 or more of the
following groundsif:
(a) Tthe indictment or information on which the defendant was tried is so
defective that it will not support a judgment of conviction.;
(b) Tthe court is without jurisdiction of the cause.;
(c) Tthe verdict is so uncertain that it does not appear therefrom that the
jurors intended to convict the defendant of an offense offor which the defendant
- 31 -
could be convicted under the indictment or information under which the defendant
was tried.; or
(d) Tthe defendant was convicted of an offense for which the defendant
could not be convicted under the indictment or information under which the
defendant was tried.
Committee Notes
[No Changes]
RULE 3.691. POST-TRIAL RELEASE
(a) When Authorized. All personsA defendant who havehas been
adjudicated guilty of the commission of any non-capital offense for which bail is
not prohibited under section 903.133, Florida Statutes, not capital, may be
released, pending review of the conviction, at the discretion of either the trial or
appellate court, applying the principles enunciated in Younghans v.
StateYounghans v. State, 90 So. 2d 308 (Fla. 1956), provided that no person. No
defendant may be admitted to bail on appeal from a conviction of a felony unless
the defendant establishes that the appeal is taken in good faith, on grounds fairly
debatable, and not frivolous. However, in no case shall bail be granted if such
personthe defendant has previously been convicted of a felony, the commission of
which occurred prior to the commission of the subsequent felony, and the
person’sdefendant’s civil rights have not been restored or if other felony charges
are pending against the persondefendant and probable cause has been found that
the persondefendant has committed the felony or felonies at the time the request
for bail is made.
(b) [No Change]
(c) Review of Denial. An order by a trial court denying bail to a
persondefendant pursuant to the provisions of subdivision (a) may be reviewed by
motion to the appellate court and the motion shall be advanced on the calendar of
the appellate court for expeditious review.
(d) Conditions of Release. If the defendant is released after conviction
and onpending appeal, the conditions shall be:
- 32 -
(1) the defendant will duly prosecute the appeal; and
(2) the defendant will surrender himself or herself in execution of
the judgment or sentence on its being affirmed or modified or on the appeal being
dismissed; or in case the judgment is reversed and the cause remanded for a new
trial, the defendant will appear in the court to which the cause may be remanded
for a new trial, that the defendant will appear in the court to which the cause may
be remanded and submit to the orders and process thereof and will not depart the
jurisdiction of the court without leave.
(e) Approval of Bond. The court shall approve the sufficiency and
adequacy of the bond, its security, and sureties, prior to the release of the
defendant. However, in no case may an original appearance bond be continued for
an appeal.
Committee Notes
[No Changes]
RULE 3.692. PETITION TO SEAL OR EXPUNGE
(a) Requirements of Petition.
(1) All relief sought by reason of sections 943.0585–943.059,
Florida Statutes, shall be by written petition, filed with the clerk. The petition shall
state the grounds on which it is based and the official records to which it is
directed, and shall be supported by an affidavit of the party seeking relief, which
affidavit shall state with particularity the statutory grounds and the facts in support
of the motion. A petition seeking to seal or expunge nonjudicial criminal history
records must be accompanied by a certificate of eligibility issued to the petitioner
by the Florida Department of Law Enforcement. A copy of the completed petition
and affidavit shall be served on the prosecuting attorney and the arresting
authority. Notice and hearing shall be as provided in rule 3.590(c).
(2) All relief sought by reason of section 943.0583, Florida
Statutes, shall be by written petition, filed with the clerk. The petition shall state
the grounds on which it is based and the official records to which it is directed;
- 33 -
shall be supported by the petitioner’s sworn statement attesting that the petitioner
is eligible for such an expunction; and to the best of his or her knowledge or belief
that the petitioner does not have any other petition to expunge or any petition to
seal pending before any court; and shall be accompanied by official documentation
of the petitioner’s status as a victim of human trafficking, if any exists. A petition
to expunge, filed under section 943.0583, Florida Statutes, is not required to be
accompanied by a certificate of eligibility from the Florida Department of Law
Enforcement. A copy of the completed petition, sworn statement, and any other
official documentation of the petitioner’s status as a victim of human trafficking,
shall be served on the prosecuting attorney and the arresting authority. Notice and
hearing shall be as provided in rule 3.590(c).
(b) State’s Response; Evidence. The state may traverse or
demurprosecuting attorney and arresting agency may respond to the petition and
affidavit. The court may receive evidence on any issue of fact necessary to the
decision ofrule on the petition.
(c)-(d) [No Changes]
(e) Clerk’s Duties. In regard to the official records of the court, including
the court file of the cause, the clerk shall:
(1) [No Changes]
(2) seal the entries and records, or certified copies thereof, together
with the court file and retain the same in a nonpublic index, subject to further order
of the court (see Johnson v. State, 336 So. 2d 93 (Fla. 1976)); and
(3) [No Changes]
(f) Costs. All costs of certified copies involved herein shall be borne by
the movant, unless the movant is indigentPetitioner shall bear all costs of certified
copies unless petitioner is indigent.
Committee Notes
[No Changes]
- 34 -
RULE 3.704. THE CRIMINAL PUNISHMENT CODE
(a) [No Changes]
(b) Purpose and Construction. The purpose of the 1998 Criminal
Punishment Code, and the principles it embodies, are set out in subsection
921.002(1), Florida Statutes. Existing case law construing the application of
sentencing guidelines will continue as precedent unless in conflict with the
provisions of this rule or the 1998 Criminal Punishment Code.
(c) Offense Severity Ranking.
(1) [No Changes]
(2) Felony offenses not listed in section 921.0022 are assigned a
severity level in accordance with section 921.0023, Florida Statutes, as follows:
(A) Aa felony of the third degree within offense level 1.;
(B) Aa felony of the second degree within offense level 4.;
(C) Aa felony of the first degree within offense level 7.;
(D) Aa felony of the first degree punishable by life within
offense level 9.; or
(E) Aa life felony within offense level 10.
An offense does not become unlisted and subject to the provisions of section
921.0023 because of a reclassification of the degree of felony under section
775.0845, section 775.087, section 775.0875, or section 794.023, Florida Statutes,
or any other law that provides an enhanced penalty for a felony offense.
(d) General Rules and Definitions.
(1) One or more Criminal Punishment Code scoresheets must be
prepared for each offender covering all offenses pending before the court for
sentencing, including offenses for which the offender may qualify as an habitual
felony offender, an habitual violent felony offender, a violent career criminal, or a
prison releasee reoffender. The office of the stateprosecuting attorney must prepare
- 35 -
the scoresheets and present them to defense counsel for review as to accuracy. If
sentences are imposed under section 775.084, or section 775.082(9), Florida
Statutes, and the Criminal Punishment Code, a scoresheet listing only those
offenses sentenced under the Criminal Punishment Code must be filed in addition
to any sentencing documents filed under section 775.084 or section 775.082(9).
(2) [No Changes]
(3) If an offender is before the court for sentencing for more than
one felony and the felonies were committed under more than one1 version or
revision of the guidelines or Criminal Punishment Code, separate scoresheets must
be prepared and used at sentencing. The sentencing court may impose such
sentence concurrently or consecutively.
(4)-(6) [No Changes]
(7) “Primary offense” means the offense at conviction pending
before the court for sentencing for which the total sentence points recommend a
sanction that is as severe as, or more severe than, the sanction recommended for
any other offense committed by the offender and pending before the court at
sentencing. Only one1 count of one offense before the court for sentencing shall be
classified as the primary offense.
(8) [No Changes]
(9) “Victim injury” is scored for physical injury or death suffered
by a person as a direct result of any offense pending before the court for
sentencing. Except as otherwise provided by law, the sexual penetration and sexual
contact points will be scored as follows. Sexual penetration points are scored if an
offense pending before the court for sentencing involves sexual penetration. Sexual
contact points are scored if an offense pending before the court for sentencing
involves sexual contact, but no penetration. If the victim of an offense involving
sexual penetration or sexual contact without penetration suffers any physical injury
as a direct result of an offense pending before the court for sentencing, that
physical injury must be scored in addition to any points scored for the sexual
contact or sexual penetration.
Victim injury must be scored for each victim physically injured and for each
offense resulting in physical injury whether there are one1 or more victims.
- 36 -
However, victim injury must not be scored for an offense for which the offender
has not been convicted.
Victim injury resulting from one1 or more capital offenses before the court
for sentencing must not be included upon any scoresheet prepared for non-capital
offenses also pending before the court for sentencing. This does not prohibit the
scoring of victim injury as a result of the non-capital offense or offenses before the
court for sentencing.
(10) Unless specifically provided otherwise by statute, attempts,
conspiracies, and solicitations must be indicated in the space provided on the
Criminal Punishment Code scoresheet and must be scored at one1 severity level
below the completed offense.
Attempts, solicitations, and conspiracies of third-degree felonies located in
offense severity levels 1 and 2 must be scored as misdemeanors. Attempts,
solicitations, and conspiracies of third-degree felonies located in offense severity
levels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies one1 offense level
beneath the incomplete or inchoate offense.
(11) An increase in offense severity level may result from a
reclassification of felony degrees under sections 775.0845, 775.087, 775.0875, or
794.023, Florida Statutes. Any such increase must be indicated in the space
provided on the Criminal Punishment Code scoresheet.
(12) A single assessment of thirty30 prior serious felony points is
added if the offender has a primary offense or any additional offense ranked in
level 8, 9, or 10 and one1 or more prior serious felonies. A ‘prior serious felony’ is
an offense in the offender’s prior record ranked in level 8, 9, or 10 and for which
the offender is serving a sentence of confinement, supervision, or other sanction or
for which the offender’s date of release from confinement, supervision, or other
sanction, whichever is later, is within 3 years before the date the primary offense or
any additional offenses were committed. Out of state convictions wherein the
analogous or parallel Florida offenses are located in offense severity level 8, 9, or
10 must be considered prior serious felonies.
(13) If the offender has one1 or more prior capital felonies, points
must be added to the subtotal sentence points of the offender equal to twice the
number of points the offender receives for the primary offense and any additional
offense. Out-of-state convictions wherein the analogous or parallel Florida
- 37 -
offenses are capital offenses must be considered capital offenses for purposes of
operation of this section.
(14) [No Changes]
(15) “Legal status points” are assessed when an offender:
(A) Eescapes from incarceration;
(B) Fflees to avoid prosecution;
(C) Ffails to appear for a criminal proceeding;
(D) Vviolates any condition of a supersedeas bond;
(E) Iis incarcerated;
(F) Iis under any form of a pretrial intervention or diversion
program; or
(G) Iis under any form of court-imposed or post-prison
release community supervision and commits an offense that results in conviction.
Legal status violations receive a score of 4 sentence points and are scored when the
offense committed while under legal status is before the court for sentencing.
Points for a legal status violation must only be assessed once regardless of the
existence of more than one1 form of legal status at the time an offense is
committed or the number of offenses committed while under any form of legal
status.
(16) Community sanction violation points occur when the offender
is found to have violated a condition of:
(A) Pprobation;
(B) Ccommunity Ccontrol; or
(C) Ppretrial intervention or diversion.
Community sanction violation points are assessed when a community
sanction violation is before the court for sentencing. Six community sanction
- 38 -
violation points must be assessed for each violation or if the violation results from
a new felony conviction, 12 community sanction violation points must be assessed.
For violations occurring on or after March 12, 2007, if the community sanction
violation that is not based upon a failure to pay fines, costs, or restitution is
committed by a violent felony offender of special concern as defined in s.ection
948.06, Florida Statutes, twelve12 community sanction violation points must be
assessed or if the violation results from a new felony conviction, 24 community
sanction points must be assessed. Where there are multiple violations, points may
be assessed only for each successive violation that follows a continuation of
supervision, or modification or revocation of the community sanction before the
court for sentencing and are not to be assessed for violation of several conditions
of a single community sanction. Multiple counts of community sanction violations
before the sentencing court may not be the basis for multiplying the assessment of
community sanction violation points.
(17) Possession of a firearm, semiautomatic firearm, or a machine
gun during the commission or attempt to commit a crime will result in additional
sentence points. Eighteen sentence points are assessed if the offender is convicted
of committing, or attempting to commit, any felony other than those enumerated in
subsection 775.087(2), Florida Statutes, while having in his or her possession a
firearm as defined in subsection 790.001(6), Florida Statutes. Twenty-five sentence
points are assessed if the offender is convicted of committing or attempting to
commit any felony other than those enumerated in subsection 775.087(3), Florida
Statutes, while having in his or her possession a semiautomatic firearm as defined
in subsection 775.087(3), Florida Statutes, or a machine gun as defined in
subsection 790.001(9), Florida Statutes. Only one1 assessment of either 18 or 25
points can be made.
(18) “Subtotal sentence points” are the sum of the primary offense
points, the total additional offense points, the total victim injury points, the total
prior record points, any legal status points, community sanction points, prior
serious felony points, prior capital felony points, and points for possession of a
firearm or semiautomatic weapon.
(19) [No Changes]
(20) If the primary offense is a violation of the Law Enforcement
Protection Act under subsection 775.0823(2), (3), or (4), Florida Statutes, the
subtotal sentence points are multiplied by 2.5. If the primary offense is a violation
of subsection 775.0823(5), (6), (7), (8), or (9), Florida Statutes, the subtotal
- 39 -
sentence points are multiplied by 2.0. If the primary offense is a violation of
section 784.07(3) or 775.0875(1), Florida Statutes, or the Law Enforcement
Protection Act under subsection 775.0823(10) or (11), Florida Statutes, the subtotal
sentence points are multiplied by 1.5.
(21) If the primary offense is grand theft of the third degree of a
motor vehicle and the offender’s prior record includes three3 or more grand thefts
of the third degree of a motor vehicle, the subtotal sentence points are multiplied
by 1.5.
(22) [No Changes]
(23) If the primary offense is a crime of domestic violence as
defined in section 741.28, Florida Statutes, which was committed in the presence
of a child under 16 years of age who is a family household member as defined in
section 741.28(2), Florida Statutes, with the victim or perpetrator, the subtotal
sentence points are multiplied by 1.5.
(24) (A) Adult on minor sex offense. The subtotal sentence points
are multiplied by 2.0 if:
(i) the offender was 18 years of age or older and the
victim was younger than 18 years of age at the time the offender committed the
primary offense; and
(ii) the primary offense was committed on or after
October 1, 2014, and is a violation of:
a. section 787.01(2) (kidnapping) or 787.02(2)
(false imprisonment), Florida Statutes, if in the course of committing the
kidnapping or false imprisonment the defendant committed a sexual battery under
chapter 794, Florida Statutes, or a lewd act under section 800.04 or 847.0135(5),
Florida Statutes, against the victim;
b. section 787.01(3)(a)2. or (3)(a)3., Florida
Statutes, (kidnapping of a child under 13 with a sexual battery or lewd act);
c. section 787.02(3)(a)2. or (3)(a)3., Florida
Statutes, (false imprisonment of a child under 13 with a sexual battery or lewd act);
- 40 -
d. section 794.011, Florida Statutes, (sexual
battery), excluding section 794.011(10);
e. section 800.04, Florida Statutes, (lewd or
lascivious offenses); or
f. section 847.0135(5), Florida Statutes, (lewd
or lascivious exhibition using a computer).
(B) Notwithstanding subdivision (d)(24)(A), the court may
not apply the multiplier and must sentence the defendant to the statutory maximum
sentence if applying the multiplier results in the lowest permissible sentence
exceeding the statutory maximum sentence for the primary offense under chapter
775, Florida Statutes.
(25) “Total sentence points” are the subtotal sentence points or the
enhanced subtotal sentence points.
(256) The lowest permissible sentence is the minimum sentence that
may be imposed by the trial court, absent a valid reason for departure. The lowest
permissible sentence is any nonstate prison sanction in which the total sentence
points equals or is less than 44 points, unless the court determines within its
discretion that a prison sentence, which may be up to the statutory maximums for
the offenses committed, is appropriate. When the total sentence points exceeds 44
points, the lowest permissible sentence in prison months must be calculated by
subtracting 28 points from the total sentence points and decreasing the remaining
total by 25 percent. The total sentence points must be calculated only as a means of
determining the lowest permissible sentence. The permissible range for sentencing
must be the lowest permissible sentence up to and including the statutory
maximum, as defined in section 775.082, Florida Statutes, for the primary offense
and any additional offenses before the court for sentencing. The sentencing court
may impose such sentences concurrently or consecutively. However, any sentence
to state prison must exceed 1 year. If the lowest permissible sentence under the
Code exceeds the statutory maximum sentence as provided in section 775.082,
Florida Statutes, the sentence required by the Code must be imposed. If the total
sentence points are greater than or equal to 363, the court may sentence the
offender to life imprisonment. The sentence imposed must be entered on the
scoresheet.
- 41 -
(267) For those offenses having a mandatory minimum sentence, a
scoresheet must be completed and the lowest permissible sentence under the Code
calculated. If the lowest permissible sentence is less than the mandatory minimum
sentence, the mandatory minimum sentence takes precedence. If the lowest
permissible sentence exceeds the mandatory sentence, the requirements of the
Criminal Punishment Code and any mandatory minimum penalties apply.
Mandatory minimum sentences must be recorded on the scoresheet.
(278) Any downward departure from the lowest permissible sentence,
as calculated according to the total sentence points under section 921.0024, Florida
Statutes, is prohibited unless there are circumstances or factors that reasonably
justify the downward departure. Circumstances or factors that can be considered
include, but are not limited to, those listed in subsection 921.0026(2), Florida
Statutes.
(A) If a sentencing judge imposes a sentence that is below the
lowest permissible sentence, it is a departure sentence and must be accompanied by
a written statement by the sentencing court delineating the reasons for the
departure, filed within 7 days after the date of sentencing. A written transcription
of orally stated reasons for departure articulated at the time sentence was imposed
is sufficient if it is filed by the court within 7 days after the date of sentencing. The
sentencing judge may also list the written reasons for departure in the space
provided on the Criminal Punishment Code scoresheet.
(B) The written statement delineating the reasons for
departure must be made a part of the record. The written statement, if it is a
separate document, must accompany the scoresheet required to be provided to the
Department of Corrections under subsection 921.0024(6), Florida Statutes.
If a split sentence is imposed, the total sanction (incarceration and
community control or probation) must not exceed the term provided by general law
or the maximum sentence under the Criminal Punishment Code.
(289) If the lowest permissible sentence under the criminal
punishment code is a state prison sanction but the total sentencing points do not
exceed 48 points (or 54 points if six6 of those points are for a violation of
probation, community control, or other community supervision that does not
involve a new crime), the court may sentence the defendant to probation,
community control, or community supervision with mandatory participation in a
prison diversion program, as provided for in s.ection 921.00241, Florida Statutes,
- 42 -
if the defendant meets the requirements for that program as set forth in section
921.00241, Florida Statutes.
(2930) If the total sentence points equal 22 or less, the court
must sentence the offender to a nonstate prison sanction unless it makes written
findings that a nonstate prison sanction could present a danger to the public.
(301) Sentences imposed after revocation of probation or community
control must be imposed according to the sentencing law applicable at the time of
the commission of the original offense.
Committee Note
[No Changes]
RULE 3.710. PRESENTENCE REPORT
(a) Cases In Which Court Has Discretion. In all cases in which the
court has discretion as to what sentence may be imposed, the court may refer the
case to the Department of Corrections for investigation and recommendation. No
sentence or sentences other than probation or the statutorily required mandatory
minimum shallmay be imposed on any defendant found guilty of a first felony
offense or found guilty of a felony while under the age of 18 years, until after such
investigation has first been made and the recommendations of the Department of
Corrections received and considered by the sentencing judge. The requirements of
this subdivision are not applicable to a subsequent violation of probation
proceeding.
(b) [No Changes]
Committee Notes
1972 Adoption-2004 Amendment [No Changes]
2018 Amendment. The amendment modifies subdivision (a). The rule makes clear
that a report is not required prior to sentencing in violation of probation
proceedings following the ruling in Barber v. State, 293 So. 2d 710 (Fla. 1974).
- 43 -
RULE 3.770. PROCEDURE WHEN PREGNANCY IS ALLEGED AS
CAUSE FOR NOT PRONOUNCING DEATH SENTENCE
When pregnancy of a female defendant is alleged as the cause for not
pronouncing the death sentence, the court shall postpone the pronouncement of
sentence until after it has decided the truth of that allegation. If necessary in order
to arrive at such a decision, it shall immediately fix a time for a hearing to
determine whether the defendant is pregnant and shall appoint not exceeding 3
competent disinterested physicians to examine the defendant as to herthe
defendant’s alleged pregnancy and to testify at the hearing as to whether shethe
defendant is pregnant. Other evidence regarding whether the defendant is pregnant
may be introduced at the hearing by either party. If the court decides that the
defendant is not pregnant, it shall proceed to pronounce sentence. If it decides that
shethe defendant is pregnant, it shall commit herthe defendant to prison until it
appears that shethe defendant is not pregnant and shall then pronounce sentence
upon her.
Committee Notes
[No Changes]
RULE 3.810. COMMITMENT OF DEFENDANT; DUTY OF SHERIFF
On pronouncement of a sentence imposing a penalty other than a fine only
or death, the court shall, unless the execution of the sentence is suspended or
stayed, and, in such case, on termination of the suspension or stay,
forthwithimmediately commit the defendant to the custody of the sheriff. under a
commitment to which shall be attached a certified copy of the sentence and, unless
both are contained in the same instrument if the sentence is imprisonment in the
state prison, a certified copy of the judgment of conviction and a certified copy of
the indictment or information, and the sheriff shall thereupon, within a reasonable
time, if the sheriff is not the proper official to execute the sentence, transfer the
defendant, together with the commitment and attached certified copies, The
commitment documents must include certified copies of the sentence, the judgment
of conviction, and the indictment or information. If the sheriff is not the proper
official to execute the sentence, the sheriff will transfer the prisoner, with certified
- 44 -
copies of the commitment documents to the custody of the official whose duty it is
to execute the sentence and shall take from that person a receipt for the defendant
and make a return thereofthat will be returned to the court.
Committee Notes
[No Changes]
RULE 3.850. MOTION TO VACATE,; SET ASIDE,; OR CORRECT
SENTENCE
(a) 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:
(1) Tthe judgment was entered or sentence was imposed in
violation of the Constitution or laws of the United States or the State of Florida.;
(2) Tthe court did not have jurisdiction to enter the judgment.;
(3) Tthe court did not have jurisdiction to impose the sentence.;
(4) Tthe sentence exceeded the maximum authorized by law.;
(5) Tthe plea was involuntary.; or
(6) Tthe judgment or sentence is otherwise subject to collateral
attack.
(b) Time Limitations. A motion to vacate a sentence that exceeds the
limits provided by law may be filed at any time. No other motion shall be filed or
considered pursuant to this rule if filed more than 2 years after the judgment and
sentence become final unless it alleges that:
(1) 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 2 years of the time the new
facts were or could have been discovered with the exercise of due diligence, or;
- 45 -
(2) the fundamental constitutional right asserted was not
established within the period provided for herein and has been held to apply
retroactively, and the claim is made within 2 years of the date of the mandate of the
decision announcing the retroactivity,; or
(3) [No Changes]
(c) Contents of Motion. The motion must be under oath stating that the
defendant has read the motion or that it has been read to him or her, that the
defendant understands its content, and that all of the facts stated therein are true
and correct. The motion must include the certifications required by subdivision (n)
of this rule and must also include an explanation of:
(1)-(7) [No Changes]
This rule does not authorize relief based on grounds that could have or
should have been raised at trial and, if properly preserved, on direct appeal of the
judgment and sentence. If the defendant is filing a newly discovered evidence
claim based on recanted trial testimony or on a newly discovered witness, the
defendant shall include an affidavit from that person as an attachment to his or her
motion. For all other newly discovered evidence claims, the defendant shall attach
an affidavit from any person whose testimony is necessary to factually support the
defendant’s claim for relief. If the affidavit is not attached to the motion, the
defendant shall provide an explanation why the required affidavit could not be
obtained.
(d) Form of Motion. Motions shall be typewritten or hand-written in
legible printed lettering, in blue or black ink, double-spaced, with margins no less
than 1 inch on white 8 1/2- by- 11 inch paper. No motion, including any
memorandum of law, shall exceed 50 pages without leave of the court upon a
showing of good cause.
(e) [No Changes]
(f) Procedure; Evidentiary Hearing; Disposition. On filing of a motion
under this rule, the clerk shall forward the motion and file to the court. Disposition
of the motion shall be in accordance with the following procedures, which are
intended to result in a single, final, appealable order that disposes of all claims
raised in the motion.
- 46 -
(1)-(2) [No Changes]
(3) Timely Motions Containing Some Insufficient Claims. If the
motion sufficiently states one1 or more claims for relief and it also attempts but
fails to state additional claims, and the motion is timely filed under this rule, the
court shall enter a nonappealable order granting the defendant 60 days to amend
the motion to sufficiently state additional claims for relief. Any claim for which the
insufficiency has not been cured within the time allowed for such amendment shall
be summarily denied in an order that is a nonfinal, nonappealable order, which
may be reviewed when a final, appealable order is entered.
(4) Motions Partially Disposed of by the Court Record. If the
motion sufficiently states one1 or more claims for relief but the files and records in
the case conclusively show that the defendant is not entitled to relief as to one1 or
more claims, the claims that are conclusively refuted shall be summarily denied on
the merits without a hearing. A copy of that portion of the files and records in the
case that conclusively shows that the defendant is not entitled to relief as to one1 or
more claims shall be attached to the order summarily denying these claims. The
files and records in the case are the documents and exhibits previously filed in the
case and those portions of the other proceedings in the case that can be transcribed.
An order that does not resolve all the claims is a nonfinal, nonappealable order,
which may be reviewed when a final, appealable order is entered.
(5)-(8) [No Changes]
(g)-(m) [No Changes]
(n) Certification of Defendant; Sanctions. No motion may be filed
pursuant to this rule unless it is filed in good faith and with a reasonable belief that
it is timely, has potential merit, and does not duplicate previous motions that have
been disposed of by the court.
(1)-(2) [No Changes]
(3) Conduct prohibited under this rule includes, but is not limited
to, the following: the filing of frivolous or malicious claims; the filing of any
motion in bad faith or with reckless disregard for the truth; the filing of an
application for habeas corpus subject to dismissal pursuant to subdivision (m); the
- 47 -
willful violation of any provision of this rule; and the abuse of the legal process or
procedures governed by this rule.
The court, upon its own motion or on the motion of a party, may determine
whether a motion has been filed in violation of this rule. The court shall issue an
order setting forth the facts indicating that the defendant has or may have engaged
in prohibited conduct. The order shall direct the defendant to show cause, within a
reasonable time limit set by the court, why the court should not find that the
defendant has engaged in prohibited conduct under this rule and impose an
appropriate sanction. Following the issuance of the order to show cause and the
filing of any response by the defendant, and after such further hearing as the court
may deem appropriate, the court shall make a final determination of whether the
defendant engaged in prohibited conduct under this subsectionsubdivision.
(4)-(5) [No Changes]
Committee Notes
[No Changes]
Court Commentary
[No Changes]
RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE
(a) [No Changes]
(b) Form for Judgment.
Probation Violator
Community Control Violator
Retrial
Resentence
In the Circuit Court,
Judicial Circuit, in and for
County, Florida
- 48 -
Division
Case Number
State of Florida
v.
Defendant
JUDGMENT
The defendant, , being personally before this court represented
by , the attorney of record, and the state represented by , and having
been tried and found guilty by jury/by court of the following crime(s)
entered a plea of guilty to the following crime(s)
entered a plea of nolo contendere to the following crime(s)
Offense Degree
Statute of Case OBTS
Count Crime Number(s) Crime Number Number
and no cause being shown why the defendant should not be adjudicated guilty, IT
IS ORDERED THAT the defendant is hereby ADJUDICATED GUILTY of the
above crime(s).
and being a qualified offender pursuant to section 943.325, Florida Statutes, the
defendant shall be required to submit DNA samples as required by law.
and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF
GUILT BE WITHHELD.
DONE AND ORDERED in open court in County, Florida, on ...........(date)...........
- 49 -
Judge
State of Florida
v.
Defendant Case Number
FINGERPRINTS OF DEFENDANT
R. Thumb R. Index R. Middle R. Ring R. Little
L. Thumb L. Index L. Middle L. Ring L. Little
Fingerprints taken by:
(Name) (Title)
I HEREBY CERTIFY that the above and foregoing fingerprints on this judgment are the
fingerprints of the defendant, , and that they were placed thereon by the defendant in my
presence in open court this date.
Judge
(c) Form for Charges, Costs, and Fees.
In the Circuit Court,
Judicial Circuit, in and for
County, Florida
Division
Case Number
State of Florida
v.
Defendant
- 50 -
CHARGES/COSTS/FEES
The defendant is hereby ordered to pay the following sums if checked:
$50.00 pursuant to section 938.03, Florida Statutes (Crimes Compensation Trust
Fund).
$3.00 as a court cost pursuant to section 938.01, Florida Statutes (Criminal Justice
Trust Fund).
$2.00 as a court cost pursuant to section 938.15, Florida Statutes (Criminal Justice
Education by Municipalities and Counties).
A fine in the sum of $ pursuant to section 775.0835, Florida Statutes. (This
provision refers to the optional fine for the Crimes Compensation Trust Fund and is not
applicable unless checked and completed. Fines imposed as part of a sentence to section
775.083, Florida Statutes, are to be recorded on the sentence page(s).)
A sum of $ pursuant to section 938.27, Florida Statutes
(Prosecution/Investigative Costs).
A sum of $ pursuant to section 938.29, Florida Statutes (Public
Defender/Appointed Counsel Fees).
Restitution in accordance with attached order.
$201 pursuant to section 938.08, Florida Statutes (Funding Programs in Domestic
Violence).
A sum of $ for the cost of collecting the DNA sample required by section
943.325, Florida Statutes.
Other
[Insert list of mandatory fines, discretionary fines, and restitution, if any.]
DONE AND ORDERED in open court in County, Florida, on .....(date)......
Judge
- 51 -
(d) Form for Sentencing.
Defendant Case Number OBTS Number
SENTENCE
(As to Count )
The defendant, being personally before this court, accompanied by the defendant’s
attorney of record, , and having been adjudicated guilty herein, and the court having given
the defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to
show cause why the defendant should not be sentenced as provided by law, and no cause being
shown,
(Check one if applicable)
and the court having on .....(date)..... deferred imposition of sentence until this date
and the court having previously entered a judgment in this case on ..........(date)..........
now resentences the defendant
and the court having placed the defendant on probation/community control and having
subsequently revoked the defendant’s probation/community control
It Is The Sentence Of The Court That:
The defendant pay a fine of $ , pursuant to section 775.083, Florida Statutes, plus
$ as the 5% surcharge required by section 938.04, Florida Statutes.
The defendant is hereby committed to the custody of the Department of Corrections.
The defendant is hereby committed to the custody of the Sheriff of County,
Florida
The defendant is sentenced as a youthful offender in accordance with section 958.04,
Florida Statutes.
To Be Imprisoned (check one; unmarked sections are inapplicable):
For a term of natural life.
For a term of .
Said SENTENCE SUSPENDED for a period of subject to conditions set forth in
this order.
- 52 -
If “split” sentence complete the appropriate paragraph
Followed by a period of on probation/community control under the supervision of
the Department of Corrections according to the terms and conditions of supervision set forth in a
separate order entered herein.
However, after serving a period of imprisonment in the balance of the
sentence shall be suspended and the defendant shall be placed on probation/community control
for a period of under supervision of the Department of Corrections according to the terms
and conditions of probation/community control set forth in a separate order entered herein.
In the event the defendant is ordered to serve additional split sentences, all incarceration portions
shall be satisfied before the defendant begins service of the supervision terms.
SPECIAL PROVISIONS
(As to Count )
By appropriate notation, the following provisions apply to the sentence imposed:
Mandatory/Minimum Provisions:
Firearm
It is further ordered that the 3–year minimum imprisonment provision of section
775.087(2), Florida Statutes, is hereby imposed for the sentence specified in this count.
Drug Trafficking
It is further ordered that the mandatory minimum imprisonment provision of
section 893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this
count.
Controlled Substance Within 1,000 Feet of School
It is further ordered that the 3-year minimum imprisonment provision of section
893.13(1)(c)1, Florida Statutes, is hereby imposed for the sentence specified in this count.
Habitual Felony Offender
The defendant is adjudicated a habitual felony offender and has been sentenced to an
extended term in accordance with the provisions of section 775.084(4)(a), Florida
Statutes. The requisite findings by the court are set forth in a separate order or stated on
the record in open court.
Habitual Violent Felony Offender
- 53 -
The defendant is adjudicated a habitual violent felony offender and has been sentenced to
an extended term in accordance with the provisions of section 775.084(4)(b), Florida
Statutes. A minimum term of year(s) must be served prior to release. The requisite
findings of the court are set forth in a separate order or stated on the record in open court.
Law Enforcement Protection Act
It is further ordered that the defendant shall serve a minimum of years before release
in accordance with section 775.0823, Florida Statutes. (Offenses committed before
January 1, 1994.)
Capital Offense
It is further ordered that the defendant shall serve no less than 25 years in accordance
with the provisions of section 775.082(1), Florida Statutes. (Offenses committed before
October 1, 1995.)
Short-Barreled Rifle, Shotgun, Machine Gun
It is further ordered that the 5–year minimum provisions of section 790.221(2), Florida
Statutes, are hereby imposed for the sentence specified in this count. (Offenses
committed before January 1, 1994.)
Continuing Criminal Enterprise
It is further ordered that the 25–year minimum sentence provisions of section 893.20,
Florida Statutes, are hereby imposed for the sentence specified in this count. (Offenses
committed before January 1, 1994.)
Taking a Law Enforcement Officer’s Firearm
It is further ordered that the 3–year mandatory minimum imprisonment provision of
section 775.0875(1), Florida Statutes, is hereby imposed for the sentence specified in this
count. (Offenses committed before January 1, 1994.)
Sexual Offender/Sexual Predator Determinations:
Sexual Predator
The defendant is adjudicated a sexual predator as set forth in section 775.21, Florida
Statutes.
Sexual Offender
The defendant meets the criteria for a sexual offender as set forth in section
943.0435(1)(a)1a., b., c., or d, Florida Statutes.
Age of Victim
- 54 -
The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve the use of
force or coercion.
Use of Force or Coercion/unclothed Genitals [Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or genital
area.
The molestation did did not involve the use of force or coercion.
Other Provisions:
Criminal Gang Activity
The felony conviction is for an offense that was found, pursuant to section 874.04,
Florida Statutes, to have been committed for the purpose of benefiting, promoting, or
furthering the interests of a criminal gang.
[Include all findings, sentencing enhancements, and mandatory minimum provisions, as
authorized by law and pronounced at sentencing.]
Retention of Jurisdiction
The court retains jurisdiction over the defendant pursuant to section 947.16(4), Florida
Statutes (1983).
Jail Credit
- 55 -
It is further ordered that the defendant shall be allowed a total of days as credit for
time incarcerated before imposition of this sentence.
CREDIT FOR TIME SERVED
IN RESENTENCING AFTER
VIOLATION OF PROBATION
OR COMMUNITY CONTROL
It is further ordered that the defendant be allowed days time served between date of
arrest as a violator following release from prison to the date of resentencing. The
Department of Corrections shall apply original jail time credit and shall compute and
apply credit for time served and unforfeited gain time previously awarded on case/count
. (Offenses committed before October 1, 1989.)
It is further ordered that the defendant be allowed days time served between date of
arrest as a violator following release from prison to the date of resentencing. The
Department of Corrections shall apply original jail time credit and shall compute and
apply credit for time served on case/count . (Offenses committed between October 1,
1989, and December 31, 1993.)
The Court deems the unforfeited gain time previously awarded on the above case/count
forfeited under section 948.06(7), Florida Statutes.
The Court allows unforfeited gain time previously awarded on the above case/count.
(Gain time may be subject to forfeiture by the Department of Corrections under section
944.28(1), Florida Statutes.)
It is further ordered that the defendant be allowed days time served between date of
arrest as a violator following release from prison to the date of resentencing. The
Department of Corrections shall apply original jail time credit and shall compute and
apply credit for time served only pursuant to section 921.0017, Florida Statutes, on
case/count . (Offenses committed on or after January 1, 1994.)
Consecutive/Concurrent as to Other Counts
It is further ordered that the sentence imposed for this count shall run (check one)
consecutive to concurrent with the sentence set forth in count of this case.
Consecutive/Concurrent as to Other Convictions
It is further ordered that the composite term of all sentences imposed for the counts specified in
this order shall run (check one) consecutive to concurrent with (check one) the following:
any active sentence being served.
- 56 -
specific sentences:
In the event the above sentence is to the Department of Corrections, the Sheriff of
County, Florida, is hereby ordered and directed to deliver the defendant to the Department of
Corrections at the facility designated by the department together with a copy of this judgment
and sentence and any other documents specified by Florida Statute.
The defendant in open court was advised of the right to appeal from this sentence by
filing notice of appeal within 30 days from this date with the clerk of this court and the
defendant’s right to the assistance of counsel in taking the appeal at the expense of the state on
showing of indigency.
In imposing the above sentence, the court further recommends
DONE AND ORDERED in open court at County, Florida, on .....(date)......
Judge
(e) Form for Order of Probation.
In the Court,
of County, Florida
Case Number
State of Florida
v.
Defendant
ORDER OF PROBATION
This cause coming on this day to be heard before me, and you, the defendant,
, being now present before me, and you having
- 57 -
(check one)
entered a plea of guilty to
entered a plea of nolo contendere to
been found guilty by jury verdict of
been found guilty by the court trying the case without a jury of the offense(s) of
SECTION 1: Judgment Of Guilt
The Court hereby adjudges you to be guilty of the above offense(s).
Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby
withheld and that you be placed on probation for a period of under the supervision of
the Department of Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby
withheld and that you be placed on probation for a period of under the supervision of the
Department of Corrections, subject to Florida law.
SECTION 3: Probation During Portion Of Sentence
It is hereby ordered and adjudged that you be
committed to the Department of Corrections
confined in the County Jail
for a term of with credit for jail time. After you have served of the term you
shall be placed on probation for a period of under the supervision of the Department of
Corrections, subject to Florida law.
confined in the County Jail
for a term of with credit for jail time, as a special condition of probation.
- 58 -
It is further ordered that you shall comply with the following conditions of probation
during the probationary period.:
(1) Not later than the fifth day of each month, you will make a full and truthful report
to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $ per month toward
the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your
residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or
own any weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be
necessary for such a violation to constitute a violation of your probation.
(6) You will not associate with any person engaged in any criminal activity.
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless
prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous
substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your
probation status, and support any dependents to the best of your ability, as directed by your
officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court
or the officer, and allow your officer to visit in your home, at your employment site, or
elsewhere, and you will comply with all instructions your officer may give you.
(10) You will pay restitution, costs, and/or fees in accordance with the attached orders.
(11) You will report in person within 72 hours of your release from confinement to the
probation office in County, Florida, unless otherwise instructed by your officer.
(This condition applies only if section 3 on the previous page is checked.) Otherwise, you must
report immediately to the probation office located at .
(12) You shall submit to the drawing of blood or other biological specimens as
required by section 943.325, Florida Statutes.
(13) You shall submit to the taking of a digitized photograph as required by section
948.03, Florida Statutes.
- 59 -
SPECIAL CONDITIONS
You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you
must successfully complete the treatment.
You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your
officer, or the professional staff of any treatment center where you are receiving treatment, to
determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay
for the tests unless payment is waived by your officer.
You must undergo a mental health evaluation, and if treatment is deemed necessary, you
must successfully complete the treatment.
You will not associate with during the period of probation.
You will not associate with other criminal gang members or associates, except as
authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of
aiding in the investigation of criminal activity.
You will not contact during the period of probation.
You will attend and successfully complete an approved batterers’ intervention program.
GENERAL CONDITIONS: [List the general conditions of probation pursuant to section
948.03, Florida Statutes.]
SPECIAL CONDITIONS: [List the special conditions of probation as orally pronounced
and authorized by law.]
Other
(Use the space below for additional conditions as necessary.)
You are hereby placed on notice that the court may at any time rescind or modify any of
the conditions of your probation, or may extend the period of probation as authorized by law, or
may discharge you from further supervision. If you violate any of the conditions of your
probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if
adjudication of guilt was withheld, and impose any sentence that it might have imposed before
placing you on probation or require you to serve the balance of the sentence. The court may
rescind or modify at any time the terms and conditions imposed by it upon the probationer.
- 60 -
It is further ordered that when you have been instructed as to the conditions of probation,
you shall be released from custody if you are in custody, and if you are at liberty on bond, the
sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or
section 2 is checked.)
It is further ordered that the clerk of this court file this order in the clerk’s office and
provide certified copies of same to the officer for use in compliance with the requirements of
law.
DONE AND ORDERED, on .....(date)......
Judge
I acknowledge receipt of a certified copy of this order. The conditions have been
explained to me and I agree to abide by them.
.....(date)..... Probationer
Instructed by
Original: Clerk of the Court
Certified Copies: Probationer
Florida Department of Corrections,
Probation and Parole Service
(f) Form for Community Control.
In the Court,
of County, Florida
Case Number
State of Florida
v.
Defendant
ORDER OF COMMUNITY CONTROL
- 61 -
This cause coming on this day to be heard before me, and you, the defendant,
, being now present before me, and you having
(check one)
entered a plea of guilty to
entered a plea of nolo contendere to
been found guilty by jury verdict of
been found guilty by the court trying the case without a jury of the offense(s) of
SECTION 1: Judgment of Guilt
The court hereby adjudges you to be guilty of the above offense(s).
Now, therefore, it is ordered and adjudged that you be placed on community control for a
period of under the supervision of the Department of Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby
withheld and that you be placed on Community Control for a period of under the
supervision of the Department of Corrections, subject to Florida law.
SECTION 3: Community Control During Portion Of Sentence
It is hereby ordered and adjudged that you be
committed to the Department of Corrections
confined in the County Jail
for a term of with credit for jail time. After you have served of the term, you
shall be placed on community control for a period of under the supervision of the
Department of Corrections, subject to Florida law.
confined in the County Jail
for a term of with credit for jail time, as a special condition of community control.
- 62 -
It is further ordered that you shall comply with the following conditions of community
control during the community control period.:
(1) Not later than the fifth day of each month, you will make a full and truthful report
to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $ per month toward the cost
of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your
residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or
own other weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be
necessary for such a violation to constitute a violation of your community control.
(6) You will not associate with any person engaged in any criminal activity.
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless
prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous
substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your
community control status, and support any dependents to the best of your ability as directed by
your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court
or your officer and allow your officer to visit in your home, at your employment site or
elsewhere, and you will comply with all instructions your officer may give you.
(10) You will report to your officer at least 4 times a week, or, if unemployed full
time, daily.
(11) You will perform hours of public service work as directed by your officer.
(12) You will remain confined to your approved residence except for one half hour
before and after your approved employment, public service work, or any other special activities
approved by your officer.
(13) You will pay restitution, costs, and/or fees in accordance with the attached orders.
- 63 -
(14) You will report in person within 72 hours of your release from confinement to the
probation office in County, Florida, unless otherwise instructed by your officer. (This
condition applies only if section 3 on the previous page is checked.) Otherwise, you must report
immediately to the probation office located at .
(15) You shall submit to the drawing of blood or other biological specimens as
required by section 943.325, Florida Statutes.
(16) You shall submit to the taking of a digitized photograph as required by section
948.101, Florida Statutes.
SPECIAL CONDITIONS
You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you
must successfully complete the treatment.
You must undergo a mental health evaluation, and if treatment is deemed necessary, you
must successfully complete the treatment.
You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your
officer, or the professional staff of any treatment center where you are receiving treatment, to
determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay
for the tests unless payment is waived by your officer.
You will not associate with during the period of community control.
You will not associate with other criminal gang members or associates, except as
authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of
aiding in the investigation of criminal activity.
You will not contact during the period of community control.
You will maintain an hourly accounting of all your activities on a daily log which you
will submit to your officer on request.
You will participate in self-improvement programs as determined by the court or your
officer.
You will submit to electronic monitoring of your whereabouts as required by the Florida
Department of Corrections.
You will attend and successfully complete an approved batterers’ intervention program.
Other
- 64 -
(Use the space below for additional conditions as necessary.)
GENERAL CONDITIONS: [List the general conditions of community control pursuant
to section 948.101, Florida Statutes.]
SPECIAL CONDITIONS: [List the special conditions of community control as orally
pronounced and authorized by law.]
You are hereby placed on notice that the court may at any time rescind or modify any of
the conditions of your community control, or may extend the period of community control as
authorized by law, or may discharge you from further supervision or return you to a program of
regular probation supervision. If you violate any of the conditions and sanctions of your
community control, you may be arrested, and the court may adjudicate you guilty if adjudication
of guilt was withheld, revoke your community control, and impose any sentence that it might
have imposed before placing you on community control.The court may rescind or modify at any
time the terms and conditions imposed by it upon the community controlee.
It is further ordered that when you have reported to your officer and have been instructed
as to the conditions of community control, you shall be released from custody if you are in
custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from
liability. (This paragraph applies only if section 1 or section 2 is checked.)
It is further ordered that the clerk of this court file this order in the clerk’s office, and
forthwith provide certified copies of same to the officer for use in compliance with the
requirements of law.
DONE AND ORDERED, on .....(date)......
Judge
I acknowledge receipt of a certified copy of this order. The conditions have been
explained to me and I agree to abide by them.
.....(date)..... Community controller
Instructed by
Original: Clerk of the Court
Certified Copies: Community Controlee
Florida Department of Corrections,
Probation and Parole Service
- 65 -
(g) Form for Restitution Order.
In the Circuit Court,
Judicial Circuit, in and for
County, Florida
Division
Case Number
State of Florida
v.
Defendant
RESTITUTION ORDER
By appropriate notation, the following provisions apply to the sentence imposed in this
section:
Restitution is not ordered as it is not applicable.
Restitution is not ordered due to the financial resources of the defendant.
Restitution is not ordered due to .
Due to the financial resources of the defendant, restitution of a portion of the
damages is ordered as prescribed below.
Restitution is ordered as prescribed below.
Restitution is ordered for the following victim. (Victim refers to the aggrieved
party, aggrieved party’s estate, or aggrieved party’s next of kin if the aggrieved
party is deceased as a result of the offense. In lieu of the victim’s address, the
address and phone number of the prosecuting attorney, victim’s attorney, or
victim advocate may be used.)
Name of victim Name of attorney or advocate if applicable
Address
City, State, and Zip Code
Phone Number (of prosecuting attorney, victim’s attorney, or victim advocate)
- 66 -
The sum of $ for medical and related services and devices relating to physical,
psychiatric, and psychological care, including non-medical care and treatment rendered in
accordance with a recognized method of healing.
The sum of $ for necessary physical and occupational therapy and rehabilitation.
The sum of $ to reimburse the victim for income lost as a result of the offense.
The sum of $ for necessary funeral and related services if the offense resulted in
bodily injury resulting in the death of the victim.
The sum of $ for damages resulting from the offense.
The sum of $ for
It is further ordered that the defendant fulfill restitution obligations in the following
manner:
Total monetary restitution is determined to be $ to be paid at a rate of $ per (check
one) month week other (specify) and is to be paid (check one)
through the clerk of the circuit court, to the victim’s designee, or through
the Department of Corrections, with an additional 4% fee of $ for handling,
processing, and forwarding the restitution to the victim(s).
For which sum let execution issue.
[Include all restitution and findings, as authorized by law and pronounced at sentencing.]
DONE AND ORDERED at County, Florida, on .....(date)......
Judge
Original: Clerk of the Court
Certified Copy: Victim
Committee Note
[No Changes]
- 67 -
RULE 3.9876. MOTION FOR CORRECTION OF SENTENCE
MOTION FOR CORRECTION OF ILLEGAL SENTENCE, INCORRECT SENTENCING
SCORESHEET, OR ERRONEOUS SEXUAL PREDATOR DESIGNATION
FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a)
INSTRUCTIONS FOR FILING MOTION FOR CORRECTION OF SENTENCE
PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a)
READ CAREFULLY
1. The attached motion is to be used to request a correction of illegal sentence,
incorrect calculation in a sentencing scoresheet, or erroneous sexual predator designation. This
form should not be used for motions for correction of jail credit (see Fla. R. Crim. P. 3.801).
2. No successive motion for correction of incorrect calculation in a sentencing
scoresheet or the correction of erroneous sexual predator designation will be considered. If a
motion fails to allege new or different grounds for relief, and the prior determination was on the
merits, the motion may be dismissed.
3. The court records must demonstrate, on their face, that you are entitled to a
correction of sentence or that a sexual predator designation is erroneous. The records that
demonstrate that a sentence is illegal, that there is an incorrect calculation in a sentencing
scoresheet, or that a sexual predator designation is erroneous, should be attached to this motion.
4. You must complete the attached motion by filling in the blank spaces.
5. You must tell the truth and sign the attached motion. If you make a false
statement of a material fact in your motion, you may be prosecuted for perjury. You must declare
that you have read the motion for relief, or had the motion read to you, that you understand its
contents, and that all of the facts contained in the motion are true and correct. If you do not
answer YES to question 5, your motion will be rejected as incomplete.
6. You must file the attached motion in the court that imposed the sentence.
7. You are not required to pay a filing fee to file the attached motion.
In the Circuit Court of the
Judicial Circuit
in and for
County, Florida
State of Florida )
)
- 68 -
v. )
)
)
(your name) )
)
)
MOTION FOR CORRECTION OF ILLEGAL SENTENCE, INCORRECT SENTENCING
SCORESHEET, OR ERRONEOUS SEXUAL PREDATOR DESIGNATION
(hereinafter “Defendant”), in pro se fashion, respectfully moves this
Honorable Court for correction of:
___ illegal sentence; and/or
___ incorrect calculation in a sentencing scoresheet; and/or
___ erroneous sexual predator designation
pursuant to Florida Rule of Criminal Procedure 3.800(a). In support of the motion, the defendant
states the following in a question-and-answer format:
1. What are the FACT(S) that entitle you to correction of sentence?
2. Where in the court’s record is it demonstrated that you are entitled to correction of
sentence, correction of incorrect calculation in a sentencing scoresheet, or the correction of
erroneous sexual predator designation?
3. Is this the first motion you have filed requesting this correction of sentence or
removal of an erroneous sexual predator designation?
If you answered NO, how many prior motions have you filed? What was the claim in each
motion?
As to EACH motion, what was the result?
- 69 -
4. What is the correct sentence or designation that you are requesting in this motion?
5. Under penalties of perjury and administrative sanctions from the Department of
Corrections, including forfeiture of gain time if this motion is found to be frivolous or made in
bad faith, I certify that I understand the contents of the foregoing motion, that the facts contained
in the motion are true and correct, and that I have a reasonable belief that the motion is timely
filed. I certify that this motion does not duplicate previous motions that have been disposed of by
the court. I further certify that I understand English and have read the foregoing motion or had
the motion read to me, or the foregoing motion was translated completely into a language which
I understand and read to me by .....(name)....., whose address is .....(address)....., and whose
certification of an accurate and complete translation is attached to this motion.
/s/
Name
DC#
Certification of Mailing
(Must use Certification of Mailing OR Certificate of Service)
I certify that I placed this document in the hands of .....(here insert name of institution
official)..... for mailing to .....(here insert name or names and address(es) used for service)..... on
.....(date)......
/s/
Name
Address
DC#
Certificate of Service
(Must use Certification of Mailing OR Certificate of Service)
I certify that the foregoing document has been furnished to (here insert name or names,
address(es) used for service and mailing address(es)) by (e-mail) (delivery) (mail) (fax) on
.....(date)......
- 70 -
/s/
Attorney
Certification of an Accurate and Complete Translation
(To be used if translation of the motion was necessary.)
I certify that a complete and accurate translation of this motion was provided to the
Defendant in this case on .....(date)......
/s/
Name
Address
DC#
RULE 3.989. AFFIDAVIT,; PETITION,; AND ORDER TO EXPUNGE
OR SEAL FORMS
(a) Affidavit in Support of Petition.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner )
)
AFFIDAVIT
State of Florida
- 71 -
County of
I, .....(name of defendant/petitioner)....., am the defendant/petitioner in the above-styled
cause and I do hereby swear or affirm that:
1. I fully understand the meaning of all of the terms of this affidavit.
2. I have never been adjudicated guilty of a criminal offense or a comparable
ordinance violation nor adjudicated delinquent for committing a felony or a misdemeanor
specified in section 943.051(3)(b), Florida Statutes.
3. I was arrested on .....(date)....., by .....(arresting agency)....., and I have not been
adjudicated guilty of, nor adjudicated delinquent for committing, any of the acts stemming from
that arrest or the alleged criminal activity surrounding my arrest.
4. I am eligible for the relief requested, to the best of my knowledge and belief, and
do not have any other petition to expunge or seal pending before any court.
5. I have never secured a prior records expunction or sealing under any lawunder
section 943.0585 or 943.059, Florida Statutes, or under former section 893.14, 901.33, or
943.058, Florida Statutes, or the record is otherwise eligible for expunction because it has been
sealed for at least 10 years.
6. (For use in expunction petitions only.) My record of arrest for this date has been
sealed for at least 10 years; or an indictment, information, or other charging document was not
filed against me for the above criminal transaction; or an indictment, information, or other
charging document filed against me was dismissed by the prosecutor or the court.
Petitioner
Sworn to and subscribed before me on .....(date)......
NOTARY PUBLIC, or other person
authorized to administer an oath
Printed, typed, or stamped
commissioned name of Notary Public
Personally known .......... or produced identification ...........
Type of identification produced ....................
- 72 -
My commission expires:
(b) Order to Expunge.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner )
)
ORDER TO EXPUNGE UNDER
SECTION 943.0585, FLORIDA STATUTES,
AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date on a petition to expunge
certain records of the petitioner’s arrest on .....(date)....., by .....(arresting agency)....., for
.....(charges)....., and the court having heard argument of counsel and being otherwise fully
advised in the premises, the court hereby finds the following:
1. The petitioner has never previously been adjudicated guilty of a criminal offense
or a comparable ordinance violation nor adjudicated delinquent for committing a felony or a
misdemeanor specified in section 943.051(3)(b), Florida Statutes.
2. The petitioner was not adjudicated guilty of nor adjudicated delinquent for
committing any of the acts stemming from the arrest or criminal activity to which this
expunction petition pertains.
3. The petitioner has not secured a prior records expunction or sealing under section
943.0585 or 943.059, Florida Statutes, or under former section 893.14, 901.33, or 943.058,
- 73 -
Florida Statutes, or the record is otherwise eligible for expunction because it has been sealed for
at least 10 years.
4. This record has either been sealed for at least 10 years; or no indictment,
information, or other charging document was ever filed in this case against the petitioner; or an
indictment, information, or other charging document filed against the defendant was dismissed
by the prosecutor or the court.
5. A Certificate of Eligibility issued by the Florida Department of Law Enforcement
accompanied the petition for expunction of nonjudicial criminal history records. Whereupon it is
ORDERED AND ADJUDGED that the petition to expunge is granted. All court records
pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in
Florida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall forward a certified copy
of this order to the (check one) ..... state attorney, ..... special prosecutor, ..... statewide
prosecutor, .....(arresting agency)....., and the Sheriff of .......... County, who will comply with the
procedures set forth in section 943.0585, Florida Statutes, and appropriate regulations of the
Florida Department of Law Enforcement, and who will further forward a copy of this order to
any agency that their records reflect has received the instant criminal history record information;
and it is further
ORDERED AND ADJUDGED that .....(arresting agency)..... shall expunge all
information concerning indicia of arrest or criminal history record information regarding the
arrest or alleged criminal activity to which this petition pertains in accordance with the
procedures set forth in section 943.0585, Florida Statutes, and Florida Rule of Criminal
Procedure 3.692.
All costs of certified copies involved herein are to be borne by the ...........
DONE AND ORDERED in Chambers at .......... County, Florida, on .....(date)......
Circuit Court Judge
- 74 -
(c) Order to Seal.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner )
)
ORDER TO SEAL RECORDS UNDER SECTION 943.059,
FLORIDA STATUTES, AND FLORIDA RULE OF
CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date on petitioner’s petition to
seal records concerning the petitioner’s arrest on .....(date)....., by the .....(arresting agency).....,
and the court having heard argument of counsel and being otherwise advised in the premises, the
court hereby finds:
1. The petitioner has never been previously adjudicated guilty of a criminal offense
or comparable ordinance violation nor adjudicated delinquent for committing a felony or a
misdemeanor specified in section 943.051(3)(b), Florida Statutes.
2. The petitioner was not adjudicated guilty of nor adjudicated delinquent for
committing any of the acts stemming from the arrest or criminal activity to which the instant
petition pertains.
3. The petitioner has not secured a prior records expunction or sealing under section
943.0585 or 943.059, Florida Statutes, or under former section 893.14, 901.33, or 943.058,
Florida Statutes.
4. A Certificate of Eligibility issued by the Florida Department of Law Enforcement
accompanied the instant petition for sealing nonjudicial criminal history records. Whereupon it is
- 75 -
ORDERED AND ADJUDGED that the petition to seal records is granted. All court
records pertaining to the above-styled case shall be sealed in accordance with the procedures set
forth in Florida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall forward a certified copy
of this order to the (check one) ..... state attorney, ..... special prosecutor, ..... statewide
prosecutor, ..... .....(arresting agency)....., and the ..... Sheriff of .......... County, who will comply
with the procedures set forth in section 943.059, Florida Statutes, and appropriate regulations of
the Florida Department of Law Enforcement, and who will further forward a copy of this order
to any agency that their records reflect has received the instant criminal history record
information; and it is further
ORDERED AND ADJUDGED that .....(arresting agency)..... shall seal all information
concerning indicia of arrest or criminal history record information regarding the arrest or alleged
criminal activity to which this petition pertains in accordance with the procedures set forth in
section 943.059, Florida Statutes, and Florida Rule of Criminal Procedure 3.692.
All costs of certified copies involved herein are to be borne by the ...........
DONE AND ORDERED in Chambers at .......... County, Florida, on .....(date)......
Circuit Court Judge
(d) Petition to Expunge or Seal.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
- 76 -
)
Defendant/Petitioner )
)
PETITION TO EXPUNGE OR SEAL
The petitioner, .........., by and through the undersigned attorney, petitions this honorable
court, under Florida Rule of Criminal Procedure 3.692 and section ..... 943.0585, or ..... section
943.059, Florida Statutes, to .....expunge/seal..... all criminal history record information in the
custody of any criminal justice agency and the official records of the court concerning the
petitioner’s arrest on .....(date)....., by .....(arresting agency)....., for .....(charges)....., and as
grounds therefor shows:
1. On .....(date)....., the petitioner, .........., a .....(race/sex)....., whose date of birth is
.....(date of birth)....., was arrested by .....(arresting agency)....., and charged with .....(charges)......
2. The petitioner has not been adjudicated guilty of nor adjudicated guilty of
committing any of the acts stemming from this arrest or alleged criminal activity.
3. The petitioner has not been previously adjudicated guilty of a criminal offense or
a comparable ordinance violation nor adjudicated delinquent for committing a felony or a
misdemeanor specified in section 943.051(3)(b), Florida Statutes.
4. The petitioner has not secured a prior records expunction or sealing under section
943.0585, or 943.059, Florida Statutes, or under former section 943.058, Florida Statutes, former
section 893.14, Florida Statutes, or former section 901.33, Florida Statutes, or any other law,
rule, or authority.
5. (To be used only when requesting expunction.) The petitioner’s record has been
sealed under section 943.059, Florida Statutes, or under former section 943.058, Florida Statues,
former section 893.14, Florida Statutes, or former section 901.33, Florida Statutes, for at least 10
years; or there has not been an indictment, information, or other charging document filed against
the petitioner who is the subject of this criminal history record information; or an indictment,
information, or other charging document filed against the petitioner who is the subject of this
criminal history information was dismissed by the prosecutor or the court.
6. A Certificate of Eligibility for .....expunction/sealing..... of nonjudicial criminal
history records issued by the Florida Department of Law Enforcement accompanies this petition.
WHEREFORE, the petitioner moves to .....expunge/seal..... any criminal history record
information and any official court records regarding his/her arrest by .....(arresting agency).....,
for .....(charges)....., on .....(date)......
- 77 -
I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been
served on .....(name of prosecuting authority)....., (check one) ..... State Attorney for the ..........
Judicial Circuit, in and for .......... County, ..... Special Prosecutor, ..... Statewide Prosecutor);
.....(arresting agency).....; .......... (Sheriff of county in which defendant was arrested, if different);
and the Florida Department of Law Enforcement, on .....(date)......
Name:
Address:
City/State:
Telephone Number:
E-mail Address:
Fla. Bar No.:
(e) Petition to Expunge; Human Trafficking Victim.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner )
)
PETITION TO EXPUNGE/HUMAN TRAFFICKING VICTIM
The petitioner, .........., by and through the undersigned attorney, petitions this honorable
court, under Florida Rule of Criminal Procedure 3.692 and section 943.0583, Florida Statutes, to
expunge all criminal history record information in the custody of any criminal justice agency and
the official records of the court concerning the petitioner’s arrest and/or conviction on
- 78 -
.....(date(s))....., by .....(arresting agency and/or prosecuting authority)....., for .....(charges and/or
offenses)....., and as grounds therefor shows:
1. On .....(date(s))....., the petitioner, .........., a .....(race/sex)....., whose date of birth is
.....(date of birth)....., was arrested by .....(arresting agency)....., and charged with .....(charges).....
or was convicted by .....(name of prosecuting authority)..... of .....(offenses)......
2. The petitioner has been the victim of human trafficking, as discussed in section
787.06, Florida Statutes, and has committed, or is reported to have committed, an offense, other
than those offenses listed in section 775.084(1)(b)1, Florida Statutes, which was committed, or
reported to have been committed, as a part of a human trafficking scheme of which he/she was
the victim or at the direction of an operator of the scheme as evidenced by the attached official
documentation of his/her status, or may be shown by clear and convincing evidence presented to
the Court.
WHEREFORE, the petitioner moves to expunge any criminal history record information
and any official court records regarding his/her arrest and/or conviction by .....(arresting agency
and/or name of prosecuting authority)....., for .....(charges and/or offenses)....., on
.....(date(s)).......
I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been
served on .....(name of prosecuting authority)....., (check one) ..... State Attorney for the ...........
Judicial Circuit, in and for .......... County, ..... Special Prosecutor, ..... Statewide Prosecutor;
.....(arresting agency).....; .......... (Sheriff of county in which defendant was arrested, if different);
and the Florida Department of Law Enforcement, on .....(date)......
Name:
Address:
City/State:
Telephone Number:
E-mail Address:
Fla. Bar No.:
Personally known .......... or produced identification ............
Type of identification produced ...........
My commission expires:
(f) Affidavit in Support of Petition; Human Trafficking Victim.
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In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner. )
)
AFFIDAVIT/HUMAN TRAFFICKING VICTIM
State of Florida
County of
I, .....(name of defendant/petitioner)....., am the defendant/petitioner in the above-styled
cause and I do hereby swear or affirm that:
1. I fully understand the meaning of all of the terms of this affidavit.
2. I have been the victim of human trafficking, as discussed in section 787.06,
Florida Statutes, and have committed, or was reported to have committed, an offense, other than
those offenses listed in section 775.084(1)(b)1, Florida Statutes, which was committed, or
reported to have been committed, as a part of a human trafficking scheme of which I was the
victim or at the direction of an operator of the scheme.
3. I was arrested and/or convicted on .....(date(s))....., by .....(arresting agency and/or
name of prosecuting authority)......
4. I am eligible for the relief requested, to the best of my knowledge and belief, and
.....(do or do not)..... have any other petition to expunge or seal pending before any court.
Petitioner
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Sworn to and subscribed before me on .....(date)......
NOTARY PUBLIC, or other person
authorized to administer an oath
Printed, typed, or stamped
commissioned name of Notary Public
Personally known .......... or produced identification ...........
Type of identification produced ............
My commission expires:
(g) Order to Expunge; Human Trafficking Victim.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Case No.:
Division
State of Florida, )
)
Plaintiff, )
)
v. )
)
, )
)
Defendant/Petitioner )
)
ORDER TO EXPUNGE, HUMAN TRAFFICKING VICTIM,
UNDER SECTION 943.0583, FLORIDA STATUTES,
AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE, having come on to be heard before me this date upon a petition to
expunge certain records of the petitioner’s arrest and/or conviction on .....(date(s))....., by
.....(arresting agency and/or name of prosecuting authority)....., for .....(charges and/or
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offenses)....., and the court having heard argument of counsel and being otherwise fully advised
in the premises, the court hereby finds the following:
The petitioner has been the victim of human trafficking, as discussed in section 787.06,
Florida Statutes, and has committed, or is reported to have committed, an offense, other than
those offenses listed in section 775.084(1)(b)1, Florida Statutes, which was committed, or
reported to have been committed, as a part of a human trafficking scheme of which he/she was
the victim, or at the direction of an operator of the scheme. A conviction expunged under this
section is deemed to have been vacated due to a substantive defect in the underlying criminal
proceedings.
Whereupon it is
ORDERED AND ADJUDGED that the petition to expunge is granted. All court records
pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in
Florida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the clerk of this court shall forward a certified copy
of this order to the (check one) ..... state attorney, ..... special prosecutor, ..... statewide
prosecutor, ..... .....(arresting agency)....., and the Sheriff of .......... County, who will comply with
the procedures set forth in section 943.0583, Florida Statutes, and appropriate regulations of the
Florida Department of Law Enforcement, and who will further forward a copy of this order to
any agency that their records reflect has received the instant criminal history record information;
and it is further
ORDERED AND ADJUDGED that .....(arresting agency)..... shall expunge all
information concerning indicia of arrest, conviction, or criminal history record information
regarding the arrest, conviction, or alleged criminal activity to which this petition pertains in
accordance with the procedures set forth in section 943.0583, Florida Statutes, and Florida Rule
of Criminal Procedure 3.692.
All costs of certified copies involved herein are to be borne by the ...........
DONE AND ORDERED in Chambers at .......... County, Florida, on .....(date)......
Circuit Court Judge
Committee Notes
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[No Changes]
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