In Re: Amendments To The Florida Rules Of Criminal Procedure 3.170 And 3.172
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Supreme Court of Florida
____________
No. SC06-1739
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IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL
PROCEDURE 3.170 AND 3.172.
[March 29, 2007]
PER CURIAM.
The Court sua sponte amended Florida Rules of Criminal Procedure 3.170
and 3.172 on an emergency basis to ensure consistency between the rules and
section 925.12, Florida Statutes (2006). See Amendments to Fla. Rules of Crim.
Pro. 3.170 & 3.172, 938 So. 2d 978 (Fla. 2006). Because the amendments were
not published for comment prior to adoption, the Court gave interested persons
sixty days to file comments. Comments now have been filed. We have
jurisdiction. See art. V, § 2(a), Fla. Const.
BACKGROUND
The history of the procedural rules governing DNA testing is set forth in the
Court’s prior opinions in this area. 1 Originally, subdivision (d) of Florida Rule of
Criminal Procedure 3.853 set forth a deadline for filing certain motions for
postconviction DNA testing, and that deadline, which was October 1, 2003, was
later extended to October 1, 2005. Prior to expiration of the October 1, 2005,
deadline, the Criminal Procedure Rules Committee (rules committee) filed in this
Court an emergency report, which recommended eliminating the deadline
altogether. In order to give the Court time to consider the report and to seek and
consider comments, the Court on September 29, 2005, issued an order amending
rule 3.853(d) on an interim basis, extending the deadline to July 1, 2006. Because
the Legislature was considering the matter, the Court held the rules committee’s
report in abeyance pending legislative action.
The Legislature ultimately enacted chapter 2006-292, Laws of Florida (the
Act), which amended chapter 925, Florida Statutes (2006), in several respects, and
the Court responded by amending the corresponding rules. First, the Act removed
the deadline for filing postconviction DNA motions, and the Court responded by
adopting the rules committee’s proposed amendment to rule 3.853(d). See
1. See Amendments to Fla. Rules of Crim. Pro. 3.170 & 3.172, 938 So. 2d
978 (Fla. 2006); Amendments to Fla. Rules of Crim. Pro. 3.853(d), 938 So. 2d 977
(Fla. 2006); Amendments to Fla. Rules of Crim. Pro. 3.853(d)(1)(A), 884 So. 2d
934 (Fla. 2004); Amendments to Fla. Rules of Crim. Pro. 3.853(d)(1)(A), 857 So.
2d 190 (Fla. 2003); Amendment to Fla. Rules of Crim. Pro. Creating Rule 3.853,
807 So. 2d 633 (Fla. 2001).
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Amendments to Fla. Rules of Crim. Pro. 3.853(d), 938 So. 2d 977 (Fla. 2006)
(hereinafter Amendments I). And second, the Act provided that courts should
inquire into the existence of DNA evidence before accepting a plea of guilty or
nolo contendere to a felony, and the Court responded by sua sponte adopting
emergency amendments to rules 3.170 and 3.172. See Amendments to Fla. Rules
of Crim. Pro. 3.170 & 3.172, 938 So. 2d 978 (Fla. 2006) (hereinafter Amendments
II). The emergency amendments to rules 3.170 and 3.172 were published for
comment in the October 15, 2006, edition of The Florida Bar News, and comments
have now been filed by several entities, including the rules committee. 2
AMENDMENTS
The Court in Amendments II added subdivision (2) to rule 3.170(k),
Responsibility of Court on Pleas, to provide that courts shall inquire into the
existence of DNA evidence before accepting a plea of guilty or nolo contendere to
a felony. The rules committee now points out that the Court’s emergency
amendments to this rule are unnecessary in light of the committee’s proposed
amendments to rule 3.172(d), which are discussed below. After considering the
2. Comments have been filed by the rules committee, the Florida
Association of Criminal Defense Lawyers (FACDL), and the Florida Public
Defenders Association (FPDA).
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various comments, 3 we conclude that the committee’s proposed amendments to
rule 3.172(d) render the prior emergency amendments to rule 3.170(k) redundant—
there is no reason to include the same language in two separate places in the rules.
Accordingly, we adopt the committee’s proposed amendments to rule 3.170(k),
which have the effect of returning this rule to its original form.
Next, the Court in Amendments II amended rule 3.172(d), Inquiry
Concerning DNA Evidence, to do the following: to provide that courts shall
inquire into the existence of DNA evidence before accepting a plea of guilty or
nolo contendere to a felony, and to set forth a list of issues that the judge must
inquire into during the plea proceeding. The committee now proposes that the
Court adopt a revised version of this rule; the revised version is an amalgam of
both sections 925.12(2) and 925.12(3), Florida Statutes (2006). With regard to the
concern raised by Justice Anstead in Amendments II that courts should be required
to make a DNA finding during the plea proceeding, 4 the committee is of the
opinion that the detailed colloquy required by subdivision (d) will necessarily
cause trial judges to reveal their findings and that no additional explanatory
language is necessary in this regard.
3. FACDL agrees with the Court’s emergency amendments, and FPDA
objects to the emergency amendments on various grounds.
4. See Amendments II, 938 So. 2d at 979 (Anstead, J., specially concurring)
(“I would require that the trial court actually make a finding as to the existence of
DNA evidence during the plea proceedings.”).
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FACDL agrees with the Court’s emergency amendments to this rule but also
agrees with Justice Anstead’s position that the trial court should make a DNA
finding during the plea proceeding. FPDA, on the other hand, disagrees with the
Court’s emergency amendments for several reasons. FPDA contends as follows:
(a) that the DNA inquiry is a matter that falls outside the Legislature’s purview, (b)
that the rule places an undue burden on the defendant, and (c) that the DNA
inquiry will result in the impermissible waiver of potentially meritorious
postconviction claims. We conclude, however, that the matters raised by FPDA
are matters that should be addressed in a proper case and controversy, not in this
rules case. See In re Amendments to the Fla. Evidence Code, 825 So. 2d 339, 341
(Fla. 2002); In re Amendments to the Fla. Evidence Code, 782 So. 2d 339, 341
(Fla. 2000). Because the rules committee’s proposed amendments address the
statutory requirements clearly and concisely, we adopt the proposed amendments
to this rule.
Finally, the Court in Amendments I adopted the rules committee’s proposed
amendments to rule 3.853(d), Time Limitations, which eliminated the deadline for
filing certain motions for postconviction DNA testing. The rules committee now
proposes that the Court further amend the rule by deleting language that provides
that certain motions for DNA testing “shall be treated as raising a claim of newly
discovered evidence and the time periods set forth in rules 3.850 and 3.851 shall
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commence on the date that the written test results are provided,” and by adding the
following language: “The motion for postconviction DNA testing may be filed or
considered at any time following the date that the judgment and sentence in the
case becomes final.” Because these proposals render the rule consistent with the
statute, we adopt the rules committee’s proposed amendments to this rule.
We hereby adopt the amendments to the Florida Rules of Criminal
Procedure as set forth in the appendix to this opinion. 5 New language is indicated
by underscoring; deletions are indicated by struck-through type. The amendments
shall become effective immediately upon the release of this opinion.
It is so ordered.
LEWIS, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ.,
concur.
ANSTEAD, J., concurs specially with an opinion, in which PARIENTE and
QUINCE, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
5. In addition to the changes discussed above, there are also several
additional amendments—to render the rules consistent with the Act in other
regards and to correct grammar and syntax—as reflected in the appendix.
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ANSTEAD, J., specially concurring.
I remain convinced that a trial court express finding as to the existence of
DNA evidence would bring more clarity and certainty to the plea process, and
more importantly, would reduce the need for future litigation on the issue.
PARIENTE and QUINCE, JJ., concur.
Original Proceeding – Florida Rules of Criminal Procedure
William C. Vose, Chair, The Florida Bar Criminal Procedure Rules Committee,
Orlando, Florida and John F. Harkness, Jr., Executive Director, The Florida Bar,
Tallahassee, Florida,
for Petitioner
Paula S. Saunders, Office of the Public Defender, Tallahassee, Florida, and
Michael Robert Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee,
Florida, Co-Chairs, The Florida Association of Criminal Defense Lawyers Amicus
Curiae Committee; Honorable Nancy Daniels, Public Defender, Second Judicial
Circuit, Tallahassee, Florida,
Responding with comments
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APPENDIX
RULE 3.170. PLEAS
(a) –– (j)
(k)
[No change]
Responsibility of Court on Pleas.
(1) No plea of guilty or nolo contendere shall be accepted by a
court without the court first determining, in open court, with means of
recording the proceedings stenographically or mechanically, that the
circumstances surrounding the plea reflect a full understanding of the
significance of the plea and its voluntariness and that there is a factual basis
for the plea of guilty. A complete record of the proceedings at which a
defendant pleads shall be kept by the court.
(2) No plea of guilty or nolo contendere to a felony shall be
accepted by a court without the court first inquiring of the defendant and of
counsel for the defendant and the state as to physical evidence containing
DNA known to exist that could exonerate the defendant. If no physical
evidence containing DNA that could exonerate the defendant is known to
exist, the court may proceed with consideration of accepting the plea. If
physical evidence containing DNA that could exonerate the defendant is
known to exist, the court may postpone the proceeding on the defendant’s
behalf and order DNA testing upon motion of counsel specifying the
physical evidence to be tested.
(3) A complete record of the proceedings at which a defendant
pleads shall be kept by the court.
(l)
[No change]
Committee Notes
[No change]
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE
PLEA
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(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo
contendere, the trial judge shall be satisfied determine that the plea is voluntarily
entered and that there is a factual basis for it the plea exists. Counsel for the
prosecution and the defense shall assist the trial judge in this function.
(b)
[No change]
(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
should, when determining voluntariness, place the defendant under oath and shall
address the defendant personally and shall determine that he or she understands:
(1) the nature of the charge to which the plea is offered, the maximum
possible penalty, and any mandatory minimum penalty provided by law, if
any, and the maximum possible penalty provided by law;
(2) if the defendant is not represented by an attorney, that the
defendant has the right to be represented by an attorney at every stage of the
proceeding against him or her and, if necessary, one an attorney will be
appointed to represent him or her;
(3) that the defendant has the right to plead not guilty or to persist in
that plea if it has already been made, and that the defendant has the right to
be tried by a jury, and at that trial a defendant has the right to the assistance
of counsel, the right to compel attendance of witnesses on his or her behalf,
the right to confront and cross-examine witnesses against him or her, and the
right not to testify or be compelled to incriminate himself or herself;
(4) that if the defendant pleads upon a plea of guilty, or nolo
contendere without express reservation of the right to appeal, he or she gives
up the right to appeal all matters relating to the judgment, including the issue
of guilt or innocence, but does not impair the right to review by appropriate
collateral attack;
(5) –– (7)
[No change]
(8) that if he or she pleads guilty or nolo contendere the trial judge
must inform him or her that, if he or she is not a United States citizen, the
plea may subject him or her to deportation pursuant to the laws and
regulations governing the United States Immigration and Naturalization
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Service. It shall not be necessary for the trial judge to inquire as to whether
the defendant is a United States citizen, as this admonition shall be given to
all defendants in all cases; and
(9) that if the defendant pleads guilty or nolo contendere, and the
offense to which the defendant is pleading is a sexually violent offense or a
sexually motivated offense, or if the defendant has been previously
convicted of such an offense, the plea may subject the defendant to
involuntary civil commitment as a sexually violent predator upon
completion of his or her sentence. It shall not be necessary for the trial judge
to determine whether the present or prior offenses were sexually motivated
in this respect, as this admonition shall be given to all defendants in all
cases.
(d) Inquiry Concerning DNA Evidence. Before accepting a plea of
guilty or nolo contendere to a felony, the trial judge must inquire of the
defendant and of counsel for the defendant and the state as to physical evidence
containing DNA known to exist that could exonerate the defendant. The judge
must inquire into the following:
(1) whether counsel for the defense has reviewed the discovery
disclosed by the state and whether such discovery included a listing or
description of physical items of evidence;
(2) whether the nature of the evidence against the defendant
disclosed through discovery has been reviewed with the defendant;
(3) whether the defendant or counsel for the defendant is aware of
any physical evidence disclosed by the state for which DNA testing may
exonerate the defendant; and
(4) whether the state is aware of any physical evidence for which
DNA testing may exonerate the defendant.
(d) DNA Evidence Inquiry. Before accepting a defendant’s plea of guilty
or nolo contendere to a felony, the judge must inquire whether counsel for the
defense has reviewed the discovery disclosed by the state, whether such discovery
included a listing or description of physical items of evidence, and whether counsel
has reviewed the nature of the evidence with the defendant. The judge must then
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inquire of the defendant and counsel for the defendant and the state whether
physical evidence containing DNA is known to exist that could exonerate the
defendant. If no such physical evidence is known to exist, the court may accept the
defendant’s plea and impose sentence. If such physical evidence is known to exist,
upon motion of counsel the court may postpone the proceeding and order DNA
testing.
(e) –– (j)
[No change]
Committee Notes
[No change]
RULE 3.853. MOTION FOR POSTCONVICTION DNA TESTING
(a) Purpose. This rule provides procedures for obtaining DNA
(deoxyribonucleic acid) testing under sections 925.11 and 925.12, Florida Statutes.
(b) Contents of Motion. The motion for postconviction DNA testing
must be under oath and must include the following:
(1) a statement of the facts relied upon in support of the motion,
including a description of the physical evidence containing DNA to be tested
and, if known, the present location or last known location of the evidence
and how it originally was obtained;
(2) a statement that the evidence was not previously tested
previously for DNA, or a statement that the results of previous DNA testing
were inconclusive and that subsequent scientific developments in DNA
testing techniques likely would produce a definitive result establishing that
the movant is not the person who committed the crime;
(3) –– (6)
(c)
[No change]
Procedure.
(1) Upon On receipt of the motion, the clerk of the court shall file it
and deliver the court file to the assigned judge.
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(2) The court shall review the motion and deny it if it is facially
insufficient. If the motion is facially sufficient, the prosecuting authority
shall be ordered to respond to the motion within 30 days or such other time
as may be ordered by the court.
(3) Upon On receipt of the response of the prosecuting authority,
the court shall review the response and enter an order on the merits of the
motion or set the motion for hearing.
(4) In the event that the motion shall proceed to a hearing, the court
may appoint counsel to assist the movant if the court determines that
assistance of counsel is necessary and upon making the appropriate finding
of indigence.
(5) –– (6)
[No change]
(7) The court-ordered DNA testing shall be ordered to be
conducted by the Department of Law Enforcement or its designee, as
provided by statute. However, the court, upon a showing of good cause, may
order testing by another laboratory or agency certified by the American
Society of Crime Laboratory Directors or the National Forensic Science
Training Center when if requested by a movant who can bear the cost of
such testing.
(8)
[No change]
(d) Time Limitations. A motion to vacate filed under rule 3.850 or a
motion for postconviction or collateral relief filed under rule 3.851, which is based
solely on the results of the court-ordered DNA testing obtained under this rule,
shall be treated as raising a claim of newly-discovered evidence and the time
periods set forth in rules 3.850 and 3.851 shall commence on the date that the
written test results are provided to the court, the movant, and the prosecuting
authority pursuant to subsection (c)(8). The motion for postconviction DNA testing
may be filed or considered at any time following the date that the judgment and
sentence in the case becomes final.
(e) –– (f)
[No change]
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