Supreme Court of Florida

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1 Supreme Court of Florida No. SC IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE AND THE FLORIDA RULES OF APPELLATE PROCEDURE. [December 5, 2013] CORRECTED OPINION PER CURIAM. Consistent with the orders entered in this case on December 5, 2013, the opinion dated April 18, 2013, is withdrawn and this revised opinion is substituted in its place. BACKGROUND The Supreme Court Criminal Court Steering Committee (Steering Committee) and the Subcommittee on Postconviction Relief (Subcommittee) have filed a joint petition recommending amendments to Florida Rules of Criminal Procedure (Pleas), (Correction, Reduction, and Modification of Sentences), (Motion to Vacate, Set Aside, or Correct Sentence), and (Collateral Relief after Death Sentence has been Imposed and Affirmed on Direct

2 Appeal), and recommending adoption of new Florida Rule of Criminal Procedure (Correction of Jail Credit). We have jurisdiction. See art. V, 2(a), Fla. Const. The amendments we adopt here are the culmination of extensive study of Florida s postconviction relief process. Among its 2010 charges, the Steering Committee was directed to review Florida s postconviction rules and, if necessary, recommend amendments to the Court. In re Criminal Court Steering Committee, Fla. Admin. Order No. AOSC10-34, at 2 (Jul. 1, 2010). To facilitate the Steering Committee s charge, the Subcommittee was established by the Court to conduct a comprehensive review of Florida Rule of Criminal Procedure (Correction, Reduction, and Modification of Sentences), Florida Rule of Criminal Procedure (Motion to Vacate, Set Aside, or Correct Sentence), and Florida Rule of Criminal Procedure (Collateral Relief after Death Sentence has been Imposed and Affirmed on Direct Appeal). In re Subcommittee on Postconviction Relief, Fla. Admin. Order No. AOSC10-40, at 1 (Jul. 2, 2010). The Subcommittee was directed to study the recommendations made by the Commission on District Court of Appeal Performance and Accountability and the Commission on Trial Court Performance and Accountability pertaining to the postconviction relief process and Florida Rule - 2 -

3 of Criminal Procedure 3.170(l). Id. at 2; In re Subcommittee on Postconviction Relief, Fla. Admin. Order No. AOSC10-53, at 1 (Oct. 6, 2010). 1 On October 10, 2011, the Steering Committee and the Subcommittee filed a joint petition proposing multiple amendments to the postconviction rules and the deletion of rule 3.170(l). As explained in the joint petition, the proposed amendments are intended to more effectively control the filing of postconviction motions by introducing greater finality and uniformity into what has become an unwieldy postconviction process, and to achieve a balance between the rights of the convicted defendants and the appropriate use of court resources. The Court published the proposals for comment in The Florida Bar News. Several comments were filed, including comments from the Florida Public Defender Association, the Florida Association of Criminal Defense Lawyers, The Florida Bar s Appellate Court Rules Committee and Criminal Procedure Rules Committee, 2 and the Innocence Project of Florida, as well as from a number of 1. In addition to the extensive work undertaken by the Steering Committee and the Subcommittee on behalf of the Court, the Court also recognizes the work of the Commission on District Court of Appeal Performance and Accountability, the Commission on Trial Court Performance and Accountability, and the Postconviction Rules Workgroup, which was created jointly by these Commissions to consider and recommend changes in the procedural rules, administrative practices, and statutes that affect postconviction remedies. Postconviction Rules Workgroup, Report of the Postconviction Rules Workgroup, at 3 (2006). 2. Both rules committees were consulted by the Steering Committee prior to the filing of the joint petition. In its comment in response to the proposed criminal - 3 -

4 individual commentors. The Steering Committee and the Subcommittee filed a joint response to the comments. The Court heard oral argument on the proposals. AMENDMENTS Upon consideration of the proposed amendments, the comments and response thereto, the matters discussed at oral argument, and the motions for rehearing properly before the Court, we adopt a number of the proposed amendments, some with modifications, and we adopt several additional amendments on our own motion. We also decline to adopt several proposals, as further explained below. 3 Rule 3.170(l) (Motion to Withdraw the Plea after Sentencing) The Steering Committee and the Subcommittee recommend the deletion of rule 3.170(l), which allows a defendant to file a motion to withdraw a plea of guilty or nolo contendere within thirty days of rendition of the sentence. The rule limits the grounds properly raised to those set out in Florida Rule of Appellate Procedure rule amendments, the Appellate Court Rules Committee proposed conforming amendments to Florida Rules of Appellate Procedure (Definitions), (Appeal Proceedings in Criminal Cases), and (Review Proceedings in Collateral or Post-Conviction Criminal Cases). We consider these proposals here and adopt the conforming amendments to rules and Because we decline to eliminate rule 3.170(l) as explained below, we also decline to adopt the proposed conforming amendment to rule In addition to the amendments discussed herein, editorial and other minor amendments are also made to rules and Subdivision (k) (Belated Discretionary Review) of rule is eliminated, as proposed in the joint petition

5 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law. In proposing the deletion of the rule, the Steering Committee and the Subcommittee contend that most motions brought under this rule are pro se and allege ineffective assistance of counsel, and as such, present issues that would be better addressed on appeal or pursuant to rule We disagree. To the extent that these claims fall within the grounds allowable by the rule and are timely, adjudication of a motion to withdraw the plea is preferable in the trial court and closer in time to entry of the plea. Accordingly, we decline to eliminate rule 3.170(l). Rule (Correction, Reduction, and Modification of Sentences) The Steering Committee and the Subcommittee propose several amendments to rule 3.800, including deleting the text of subdivision (a) (Correction) and substantially amending subdivision (b) (Motion to Correct Sentencing Error). 4 Due to the concerns raised in the comments filed and at oral argument, we decline to adopt these proposals. 5 However, we amend rule 3.800(a) to remove language 4. The Steering Committee and the Subcommittee also proposed an amendment to Florida Rule of Criminal Procedure 3.800(c). However, subsequent to the filing of the joint petition, this amendment was adopted in another case. See In re Amendments to Florida Rule of Criminal Procedure 3.800(c), 76 So. 3d 913, (Fla. 2011). Consequently, the proposal was withdrawn. 5. While we decline to delete the text of rule 3.800(a), which, as amended by this opinion allows a court at any time to correct an illegal sentence or an incorrect scoresheet calculation, we ask the Florida Bar s Criminal Procedure Rules Committee, with input from the Steering Committee, to review the issue of - 5 -

6 that would conflict with new rule 3.801, discussed below. In addition, we amend rule 3.800(b) to add a provision governing the disposition of rehearing motions and the effect such motions have on rendition of the order on a rule 3.800(b) motion. As amended, the rule provides that a response may be filed within ten days of service of a motion for rehearing, and a motion for rehearing must be disposed of within fifteen days of the response but not later than forty days from the date of the order for which rehearing is sought. If no order is filed within forty days, the motion for rehearing is deemed denied. In addition, it provides that a timely filed motion for rehearing tolls rendition of the order subject to appellate review. New Rule (Correction of Jail Credit) We adopt new rule as proposed with a minor modification. This new rule governs the correction of a sentence that fails to allow county jail time credit as provided in section , Florida Statutes (2012). The rule is intended to prevent stale claims by requiring that jail credit issues be brought within one year of the sentence becoming final. Successive motions for jail credit are not allowed. The rule also identifies the contents that must be included in a motion seeking such relief and specifies that certain subdivisions of rule are applicable to motions under this rule. The rule provides a one-year grace period for sentences imposed prior to July 1, successive rule 3.800(a) motions and propose a rule amendment restricting such motions

7 Rule (Motion to Vacate, Set Aside, or Correct Sentence) 6 We amend rule to address several issues identified by the Postconviction Rules Workgroup and by the Steering Committee and the Subcommittee in the joint petition. However, due to the concerns raised in the comments and at oral argument, we decline to amend current subdivisions (a) (Grounds for Motion) and (b) (Time Limitations), and to adopt a new subdivision (b), as proposed, the combined effect of which would have been to create separate subdivisions of the rule governing conviction claims and sentencing claims. We also decline to amend current subdivision (l) (Habeas Corpus), as proposed in the joint petition. We amend subdivision (c) (Contents of Motion) in several ways, as proposed. First, it is amended to add the requirements that the motion 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 contents, and that all of the facts stated therein are true and correct, and that the motion explain whether the judgment resulted from a plea or from a trial. Next, it is amended to require that newly discovered evidence claims be supported by affidavits attached to the motion. Lastly, it is amended to remove the language governing the form of the motion 6. In the course of amending rule 3.850, some of the subdivisions have been redesignated

8 currently set out in the last paragraph and to move that language to new subdivision (d) (Form of Motion). 7 Next, we add new subdivision (e) (Amendments to Motion). This new subdivision is intended to codify existing case law on amendments to postconviction motions and to comport with the amendments to current subdivision (d) (Procedure; Evidentiary Hearing; Disposition), discussed below. These new provisions together are meant to further the ultimate goal of allowing the trial court to adjudicate the merits of all sufficiently pleaded postconviction claims in a single postconviction proceeding, with a single final appealable order. Current subdivision (d) (Procedure; Evidentiary Hearing; Disposition) is substantially amended and is redesignated as (f). As amended, this subdivision codifies existing case law and addresses the different options that the trial judge has when considering a motion under the rule, dependent upon such factors as the timeliness of the motion, whether and to what extent the motion is sufficient, whether and to what extent the motion is subject to disposal on the record, whether to obtain a response from the State, and whether counsel should be appointed. The portion of this subdivision addressing disposition by evidentiary hearing is amended to (1) require that the trial court cause notice of the evidentiary hearing to 7. The Steering Committee and the Subcommittee recommend that the language addressing the form of the motion be moved to a new subdivision and that it also be modified to set forth additional requirements and restrictions and a shorter page limit. We decline to adopt the proposed modifying language

9 be served not only on the state attorney but also on the defendant or the defendant s counsel; (2) expressly provide that the defendant bears the burden of presenting evidence at the evidentiary hearing and the burden of proof upon the motion unless otherwise provided by law; and (3) require that the order issued by the trial court after the evidentiary hearing resolve all claims raised and be considered the final order for purposes of appeal. Additionally, language directing the court to vacate and set aside the judgment and to discharge, resentence, grant a new trial, or correct a sentence upon finding in favor of the defendant is deleted. Next, current subdivision (e) (Movant s Presence Not Required) is redesignated as (g), retitled as Defendant s Presence Not Required, and is amended, as proposed, to clarify that the defendant s presence is required only at an evidentiary hearing on the merits of any claim. Current subdivision (f) (Successive Motions) is redesignated as (h) and is substantially rewritten. We adopt new subdivision (h)(1), requiring, as proposed, that a second or successive motion be titled Second or Successive Motion for Postconviction Relief. In addition, we retain with some modification the current language as subdivision (h)(2), which pertains to dismissals of a second or successive motion

10 Current subdivision (g) (Service on Parties) is redesignated as (i) and is amended, as proposed, to clarify that the clerk of court must serve on the parties a copy of any order issued in the rule proceeding. Next, current subdivision (h) (Rehearing) is redesignated as (j), and is amended to state that a motion for rehearing in rule proceedings is not necessary to preserve an issue for appeal and to include the requirement that the motion be based on a good faith belief that the court has overlooked a previously argued issue of fact or law or an argument based on a legal precedent or statute not available prior to the court s ruling. Additionally, on our own motion, we amend this subdivision to provide time limitations for the response to and the disposition of a motion for rehearing. These amendments are intended to facilitate the trial court s correction of an obvious error without the expense or delay occasioned by an appeal. Current subdivision (i) (Appeals) is redesignated as (k) and is amended to clarify that only the final order disposing of the motion for postconviction relief is appealable. To that end, the amended rule requires final orders denying a rule motion to state that the defendant has the right to appeal within thirty days of rendition of the order and further provides that all nonfinal, nonappealable orders should state that the defendant has no right to appeal the order until entry of the final order

11 On our own motion, we amend current subdivision (j) (Belated Appeals). The subdivision is redesignated subdivision (l) (Belated Appeals and Discretionary Review), to include the provision for belated discretionary review based on the elimination of current subdivision (k) (Belated Discretionary Review) as proposed. Finally, we adopt new subdivision (n) (Certification of Defendant; Sanctions), which replaces current subdivision (m) (Frivolous or Malicious Collateral Criminal Pleadings or Motions), which is deleted. New subdivision (n) is a complete rewrite of the subdivision addressing frivolous or malicious filings by defendants. The provision is intended to require postconviction defendants to take formal steps that communicate the significance of filing a document with a court and to set forth a sanction mechanism to deter frivolous postconviction motions, thus protecting the courts and other litigants from abuse of the postconviction process. We have modified the provision to also apply to the filing of an improper habeas petition seeking relief that should be or was sought by motion under rule Rule (Collateral Relief after Death Sentence has been Imposed and Affirmed on Direct Appeal) The proposed amendments to rule 3.851, governing postconviction motions in capital cases, are relatively minor. 8 We adopt the amendments as proposed. 8. The proposal to amend rule 3.851(f) to substitute the word paper with the word document was previously adopted in In re Amendments to the Florida

12 Subdivision (b) of the rule is amended to substitute the phrase Justice Administrative Commission for the phrase Commission on Capital Cases. New subdivision (c)(5) (Record on Appeal) is adopted to facilitate the timely transfer of the record on appeal from this Court to the records repository after the appointment of postconviction counsel. Lastly, subdivision (f)(5) (Case Management Conference; Evidentiary Hearing) is amended to shift the timing of discovery for the State and to extend the time for the trial court to hold an evidentiary hearing. CONCLUSION Accordingly, the Florida Rules of Criminal Procedure and the Florida Rules of Appellate Procedure are hereby amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The Court Commentary is offered for explanation only and is not adopted as an official part of the rules. The amendments shall become effective nunc pro tunc on July 1, 2013, at 12:01 a.m. We thank the Florida Supreme Court Criminal Court Steering Committee and the Postconviction Relief Subcommittee for their hard work and thorough recommendations. We also thank the Commission on District Court of Appeal Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure Electronic Filing, 102 So. 3d 451 (Fla. 2012)

13 Performance and Accountability, the Commission on Trial Court Performance and Accountability, and their Postconviction Rules Workgroup for the essential contributions made to this effort to refine the postconviction relief process. We also express our appreciation to the Florida Public Defender Association, the Florida Association of Criminal Defense Lawyers, The Florida Bar s Appellate Court Rules Committee and Criminal Procedure Rules Committee, the Innocence Project of Florida, and the individual commentors who provided the Court with valuable input. It is so ordered. LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, C.J., concurs in part and dissents in part. PARIENTE, J., concurs in part and dissents in part with an opinion. CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, C.J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED. PARIENTE, J., concurring in part and dissenting in part. I commend the extensive work that has been done by the members of the various committees, who over many years have endeavored to improve the postconviction process. I write to address the amendments to the Rules of Criminal Procedure that the Court now adopts and to explain my view that along with these rule changes, the criminal justice system must give serious

14 consideration to other innovations, such as the use of standard forms and evolving technology, to further improve the postconviction process. I. The New Amendments With respect to the amendments adopted by the Court today, I agree with the majority s decision, except as follows. First, as to newly adopted rule that limits the time for correction of jail credit to one year after the sentence becomes final, although I would consider some limitations on the filing of successive motions, I continue to adhere to the view that a defendant should never be required to serve any more time in prison than he or she is legally required to serve. As I stated in my concurring in result only opinion in State v. McBride, this Court has observed that the State recognizes that it has no interest in any defendant serving a sentence that is longer than the sentence authorized by law. 848 So. 2d 287, 294 (Fla. 2003) (Pariente, J., concurring in result only) (quoting Maddox v. State, 760 So. 2d 89, 99 (Fla. 2000)). Indeed, I explained in McBride that the entire justice system certainly has an interest in ensuring that the defendant is not incarcerated longer than is authorized by law, or under illegal terms. The courts have an obligation to correct any such error whenever it is brought to their attention. Id. (Pariente, J., concurring in result only). In this regard, a sentence not granting proper credit for time served was deemed so important that it was specifically mentioned in rule 3.800(a) as an error

15 that could be corrected at any time. Fla. R. Crim. P (a). As this Court held in State v. Mancino: [S]ince a defendant is entitled to credit for time served as a matter of law, common fairness, if not due process, requires that the State concede its error and correct the sentence at any time. For that reason, a prisoner should ordinarily first seek prompt administrative relief in the corrections system before going to the circuit court for relief under rule 3.800(a), mandamus or habeas corpus. Of course, the trial court and counsel for the State and the defendant should be alert to see that provision is always made in sentencing for a defendant to receive credit for all time already served. 714 So. 2d 429, 433 (Fla. 1998) (emphasis supplied) (citation omitted) (quoting Chojnowski v. State, 705 So. 2d 915, 918 (Fla. 2d DCA 1997) (Altenbernd, J., concurring specially)). I agree with the comments filed by the Florida Public Defender Association (FPDA) that the special procedure for jail credit adopted through rule is unnecessarily restrictive and that it would make more sense to instead utilize rule 3.800(b) and rule to correct these errors. As the FPDA also points out, newly adopted rule eliminates a court s power after one year to correct errors even obvious on the face of the record and apparently eliminates the manifest injustice exception to litigating an otherwise barred claim. In addition, valid concerns have been raised as to whether this new rule addresses only county jail credit or all credit issues

16 Further, the requirement in rule of a one-year time limitation on the filing of a motion to correct jail credit from the time the sentence becomes final means that these motions must now be filed sooner than motions to vacate, set aside, or correct a sentence under rule At the very least, I believe that the time for filing a motion to correct a sentence due to improperly calculated jail credit should be expanded to correspond with the time limitations in rule Not only is jail credit now removed from the scope of rule 3.800(a), but the pleading requirements of newly enacted rule place the burden entirely on the defendant, who will most likely be unrepresented at this stage of the proceedings. In my view, the simplest solution to the problem sought to be remedied through the adoption of rule would be to have a procedure at the time of sentencing to ensure the accurate calculation of credit for time served. Advancements in technology certainly make this an achievable goal. With the adoption of rule and the strict time limits imposed, defense counsel and prosecutors, as well as the trial courts, should take steps to ensure that the calculation of jail credit is accurate at the time of sentencing. Indeed, such an approach has always been the best way to limit subsequent challenges based on jail credit and to ensure the accuracy of the sentence imposed. Specifically, Judge Altenbernd of the Second District Court of Appeal brought this issue into focus over fifteen years ago:

17 Many, if not most, jail credit issues do not appear on the face of the record available to the trial court. Either the trial court does not have access to the jail records described by the prisoner or the prisoner is claiming a factual error in those records. There is no valid reason to allow such factual issues to be raised at any time in an unsworn motion. Thus, rule currently provides the best procedure for a prisoner to resolve jail credit issues because it allows for a sworn pleading and the orderly resolution of factual disputes relating to sentencing. These motions, however, cannot be filed during the pendency of an appeal. At least in this district, with our public defender s backlog, unless the defendant chooses to forego his or her constitutional right to appeal, it will be difficult for the trial court to resolve a factual issue relating to jail credit before the prisoner fully serves any sentence that is less than 3 years imprisonment. Even if the trial court manages to reach the issue in time, a delayed evidentiary hearing is a highly inefficient method to resolve jail credit problems. I do not profess to be an expert on the best methods to record and calculate jail credit. I do know, however, that the Department of Corrections already calculates prison credit when a trial judge checks the box for prison credit on the written sentence. In this computer age, the legislature could authorize the Department to obtain statewide records for use in all cases. I believe the trial court should at least have the option of allowing the Department to calculate jail credit in complex cases. This certainly would be better than forcing trial judges to scribble calculations while reciting thirty days hath September at every sentencing hearing. If it is not feasible for the legislature to delegate this task to the Department, then the supreme court should consider the creation of a specific rule of procedure to allow these matters to be processed in the trial courts and reviewed on appeal in a timely and efficient manner. Chojnowski, 705 So. 2d at (Altenbernd, J., concurring specially) (footnotes omitted). I am simply not convinced that the new procedure for jail credit the Court adopts today will allow these issues to be processed in a timely

18 and efficient manner, or that rule adequately preserves a defendant s right to never have to serve more time in prison than legally required. Second, as to the change to rule 3.850(c) that requires the attachment of an affidavit for all newly discovered evidence claims, although I agree with the requirement, I am also concerned that there may be real limits on an unrepresented prisoner s ability to obtain a properly executed affidavit. I therefore urge the trial courts to liberally construe the alternative provision that if the affidavit is not attached to the motion, the defendant shall provide an explanation why the required affidavit could not be obtained. Third, as to the changes to current subdivision rule 3.850(d), which is now designated as subdivision (f), I concur with the adoption of this substantially amended subdivision with the express understanding that the amended subdivision codifies existing law and is not intended to change the law, as set forth in the commentary to the 2012 amendment. Finally, the same caveat applies to the subdivision now designated as rule 3.850(g). II. Broader Considerations As to the larger picture, the goal of both the committee members and this Court has been to streamline the postconviction process and to limit the filing of successive motions, while concomitantly preserving the rights of convicted defendants. Against this backdrop is the reality that the vast majority of those

19 prisoners filing postconviction motions are unrepresented and, because of limitations on access to computers and typewriters, the majority of the petitions this Court and other courts receive are handwritten and oftentimes even illegible. History and experience reveal that the majority of the pro se filings in postconviction proceedings, appeals, and original writs at all levels of the court system, including the Florida Supreme Court, are without merit. A number of these filings are successive and frivolous, representing an abuse of the process. The further truth of the matter is that as defendants in Florida have increasingly been subject to lengthier prison terms, including mandatory minimums, courts have seen an increase in the number of postconviction filings. The amount of postconviction filings received in each of Florida s five district courts of appeal, for instance, has increased dramatically over the last two decades. In the fiscal year , the First District Court of Appeal received 358 postconviction filings and the Second District Court of Appeal received 650. By , however, those numbers had essentially tripled, with the First District receiving 1,178 postconviction filings and the Second District receiving a district court high of 1,825. This same pattern is evident in the number of circuit court filings for postconviction relief. Individual circuits have almost universally experienced an increase in postconviction filings over the last decade alone. In the fiscal year

20 , Florida s twenty circuits received a total of 10,005 motions for postconviction relief. In , the circuit courts received almost twice as many postconviction filings 18,681. Despite this objective reality, however, we must always remember another essential truth about our system of justice: that, among the avalanche of postconviction filings, there always exists the possibility of a defendant who in fact is entitled to relief, either from his or her conviction or from the sentence including the possibility of actual innocence or credible newly discovered evidence that sheds doubt on the validity of the conviction. Thus, I am convinced that, on the front end, mandating and adopting standard forms for prisoners to use and exploring electronic filing of postconviction petitions would be two significant steps toward our ultimate goal of reforming an unwieldy postconviction process while achieving a balance between the rights of the convicted defendants and the appropriate use of court resources. Majority op. at 3. I believe that standard forms and electronic filing would increase efficiency by enabling courts to track postconviction filings by individual prisoners, more easily ensuring that the process is not being abused and that multiple levels of courts are not reviewing the same filings, and reducing the possibility that a petition with merit is overlooked in the avalanche of pro se filings courts now receive

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