In re Amendments to the Florida Rules of Criminal Procedure 185 So. 3d 1169

CORRECTED OPINION

PER CURIAM.

This matter is before the Court for consideration of. out-of-cycle amendments to the Florida Rules of Criminal Procedure. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction1 and adopt the amendments as proposed. .

The Criminal Procedure Rules Committee (Rules Committee) filed its report proposing amendments to Florida Rules of Criminal Procedure 3.800(a) (Correction, Reduction, and Modification of Sentences; Correction); 3.984 (Application for Criminal Indigent Status); 3.987 (Motion’ for Postconviction Relief); and 3.993 (Forms Related to Capital Postconviction Records Production). The Rules Committee also proposed new rule 3.9875 (Motion for Jail Credit). The Florida Bar Board of Governors unanimously approved the amendments.-

The majority of the proposals are in response to a request by the Court for the Rules Committee, with input from the Supreme Court Criminal Court - Steering Committee (Steering Committee), to review the issue of successive rule 3.800(a) motions and the postconviction procedure forms in light of. the Court’s decision in In re: Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013). The Court specifically asked the Rules Committee to propose a rule amendment to rule 3.800(a) restricting such motions and propose corresponding amendments to the Florida Rules of Criminal Procedure forms for use in postconviction proceedings.

The Rules Committee published its proposals prior to filing them with the Court. The Rules Committee received-one comment from 'the Steering Committee, highlighting the differences between the Steering Committee’s recommendations and the Rules Committee’s proposals as published. The Rules Committee- did not- alter its proposals. The Court published the Rules Committee’s proposals for comment and received four comments addressing the proposals to amend rules 3.800(a) and 3.987, and to adopt 3.9875. The Rules Committee filed' a response to the comments, agreeing in part and revising some of its proposals accordingly.

*1170Having considered the Rules Committee’s report, the comments, and the Rules Committee’s responses to the comments, we amend Florida Rules of Criminal Procedure 3.800, 3.984,. 3.987, and 3.993 as proposed. We also adopt new rule 3.9875 as proposed. We discuss the amendments to these rules below.2

Rule 3.800(a) (Correction, Reduction, and Modification of Sentences; Correction) is divided into four new subdivisions, as follows: (a)(1) (Generally); (a)(2) (Successive Motions); (a)(3) (Sexual Predator Designation); and (a)(4) (Appeals). Subdivision (a)(2)'(Successive Motions) is added to rule 3.800 and is modeled after the successive motions provision in rule 3.850(h)(2) (Motion to Vacate, Set Aside, or Correct Sentence; Successive Motions). Subdivision (a)(2) creates a process for addressing successive motions and details the documents that must accompany a court’s ruling dismissing a motion. Because illegal sentences may be corrected at any time, the amendments to, rule 3.800(a)(2) do not restrict the time for filing such a motion. Subdivision (a)(4) (Appeals) adds the phrase “or dismissing” to address the dismissal of successive motions. Finally, .the Court Commentary to rule 3.800 is amended by. the Court to explain that with respect to subdivision (a)(2), State v. McBride, 848 So.2d 287 (Fla.2003), still applies.

Rule 3.984 (Application for- Criminal Indigent' Status) is amended to remove the phrase “to the best of my knowledge” from the attestation clause at the end of the form. This, is consistent with case law that holds that the phrase renders, an oath insufficient. See, e.g., State v. Rodriguez, 523 So.2d 1141, 1142 (Fla.1988); Scott v. State, 464 So.2d 1171, 1172 (Fla.1985).

Rule 3.987 (Motion for. Postconviction Relief) is amended to conform the -form .to the Court’s amendments to rule 3.850 (Motion to Vacate,. Set Aside, or Correct Sentence) in In re: Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d at 738. Instruction (1) in rule 3.987 is amended to require that the motion must be typewritten or legibly handwritten in blue or black ink, with one inch margins, and on white 8 1/2 by 11 inch paper, and shall not exceed fifty pages without leave of court upon a showing of good cause. Instruction (1) no longer requires that the motion be signed by the defendant and that the defendant use either the notarized or unnotarized oath at the end of the form; instead, rule 3.987 includes a new oath,- as well as a Certificate of Mailing, a Certificate of Service, and a .Certificate of an Accurate and Complete Translation." Rule 3.987 includes a new instruction (6), which pertains to claims of , newly discovered evidence; a new instruction (7), which provides that the motion must be submitted under oath and sets out what must be included in the oath; and instruction (8), which was former instruction (6) and provides that when the motion is complete, it must be mailed to the clerk of the court of the county where the sentence was imposed and adds the requirement “as stated in Florida Rule of Appellate Procedure 9.420 [Filing; Service of Copies; Computation of Time].”

New rule 3.9875 (Motion for Jail Credit) is the “Model Form for Use in Motions for Correction of Jail Credit Pursuant to Florida Rule of Criminal Procedure 3.801.” The form follows recently adopted rule 3.801 (Correction of Jail Credit). See In re Amends. to Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro., 132 So.3d at 737.

Lastly, rule 3.993 is amended to require e-mail addresses throughout the rule to conform with Florida Rule of Judicial Ad*1171ministration 2.516 (Service of. Pleadings and Documents).. .

Accordingly, we amend the Florida Rules of Criminal Procedure 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 rule. The amendments shall take effect on January 1, 2016, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

• CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

concurring in part and. dissenting in part.

I dissent from the majority’s rejection of an additional change to new rule 3.800(a)(2) suggested by the Criminal Court Steering Committee. I would adopt the Steering Committee’s suggestion that new rule 3.800(a)(2), which authorizes the dismissal of successive motions raising grounds for relief previously rejected on the merits, also include a provision for the dismissal of successive motions raising “new or different grounds” if “the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant’s counsel to have asserted those grounds in a prior motion.”

I otherwise concur with the rule amendments adopted by the majority.

POLSTON, J.,

concurs.

APPENDIX

RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES.

(a) Correction.

(1) Generally. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision "during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.

(2) Successive Motions. A court may dismiss á second or successive motion if the court finds that the motion fails to allege new or different grounds for relief and the prior determination was on the merits-. When a motion is dismissed under this subdivision, a copy of that portion of the flies and records necessary to support the court’s ruling must accompany the order dismissing the motion.. .. .

(3) Sexual Predator Designation. A defendant may seek correction of an allegedly erroneous sexual predator designation under this subdivision, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.'

(4) Appeals. All orders denying or dismissing motions under-ftis-subdivision (a) shallmust include a statement that the mo-vantdefendant has the right to appeal within 30 days of rendition of the order.

(b)-(c) [No Change]

Committee Notes

[No Change]

Court Commentary

2015 Amendments. The amendment to rule 3.800(a)(2) is not intended to render inapplicable the “manifest injustice” excep*1172tion as described in State v. McBride, 848 So.2d 287 (Fla.2003).

1999 Amendments. [No Change]

RULE 3.984. APPLICATION FOR CRIMINAL INDIGENT STATUS

Notice to Applicant: The provision of á public defender/court appointed lawyer, and costs/due process services aremot free. A judgment'and lien may be imposed against all real or personal property you own to pay for legal and other services provided on your behalf or on behalf of the person for whom you are making this.application. There is a $50,00 fee for each application filed. , ,

If the application fee is not paid to the Clerk of the Court within 7 days, it will bo added to any costs that may be assessed against you at the conclusion of this case, If you are a parent/guardian,making this affidavit on behalf of a minor or tax-dependent adult, the information contained in this application must include your income and assets',

1. I have • dependents. (Do not include .children, not living at home and do not include a working spouse or. yourself.)

2. 1 have a take home income of $_, paid . ( ) weekly () bi-weekly ( ) semi-monthly () monthly () yearly ’

*1173 (Take home income equals salary, wages, bonuses, commissions, allowances, overtime, tips and similar payments, minus deductions required by law and other court ordered support payments)

3. I have other income paid ( ) weekly ( ) bi-weekly ( ) semi-monthly ( ) monthly! ) yearly: (Circle “Yes” and fill in the amount if you have this kind of income, otherwise circle "No.’)

Social Security benefits.. Yes $_No

Unemployment compensation. Yes $_No

Union Funds... Yes $_No

Workers compensation. Yes $_No

Retirement/pensions. Yes $_No

Tnists or gifts. Yes $_No

Veterans’ benefit. Yes $j_No

Child support or other regular support from family members/spouse..'. Yes $_No

Rental income. Yes $_No

Dividends or interest. Yes $_No

Other kinds of income not on the list.... Yes $_No

4. “No”) I have other assets: (Circle "yes” and fill in the value of the property, otherwise circle

Cash. Yes $_ No

Bank accounts). Yes $_ No

Certificates of deposit or money Yes $_ market accounts. No

* Equity in Motor vehicles/Boats/ Other tangible properly. Yes $_ No

Savings. Yes $_ No

Stocks/bonds. Yes $_ No

* Equity in Real estate (excluding Yes $ homestead). No

* include expectancy of an interest in such property

5. 1 have a total amount of liabilities and debts in the amount of S_,.

6. I receive: (Circle "Yes” or "No”)

Temporary Assistance for Needy Families-Cash Assistance. Yes No

*1174Poverty-related veterans’ benefits. Yes No

Supplemental Security Income (SSI). Yes No

7, I have been released on bail in the amount of $ Cash_Surety Posted by: Self_ Family_ Other _

A person who knowingly provides false information to the clerk or the court in seeking a detennination of indigent status under s. 27.52, F.S. commits a misdemeanor of the first degree, punishable as provided in s, 775,082, F.S. or s. 775,083, F.S. I attest that the information I have provided on this Application is true and accurate to the best-of-my-knowledge.

Signed this_day of ..20.

CLERK’S DETERMINATION

_Based on the information in this Application, I have determined the applicant to be ( ) Indigent () Not Indigent

__ The Public Defender is hereby appointed to the case listed above until relieved by the Court.

Dated this_day of_, 20_.

Clerk of the Circuit Court

This form was completed with the assistance of

Clerk/Deputy Clerk/Other authorized person

*1175APPLICANTS FOUND NOT INDIGENT MAY SEEK REVIEW BY ASKING FOR A HEARING TIME. Sign here if you want the judge to review the clerk’s decision of not indigent. ,

RULE 3.987. MOTION FOR POSTCONVICTION RELIEF

MOTION FOR POSTCONVICTION RELIEF

Instructions — Read Carefully .

(1) This motion must be legiblyhandwritten-or-typewritten;--3igped by the defendant-;- and-contain'oithor-the first or second oath sot out at tho-ond-of-this rulo typewritten or handwritten 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. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form:

(2) Additional pages are not permitted except with respect to the facts that you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted in support of your legal claims (as opposed to your factual claims), they should be submitted in the form of a separate memorandum of law. This memorandum should have tlie same caption as this motion.

*1176(3) No filing fee is required when submitting a motion for postconvictioh relief,

(4) Only the judgment of one case may be challenged in a single motion for postconviction relief.-If you seek to challenge judgments entered in different cases, or different courts, you must file separate motions as to each such case. The single exception to this is if you are challenging the judgments in the different cases that were consolidated for trial. In this event, show each case number involved in the caption,

(5) Your attention is directed to the fact that you must include all grounds for relief, and all facts that support such grounds, in the motion you file seeking relief from any judgment of conviction, , , ,

(6) Claims of newly discovered evidence must be supported by affidavits attached to vour motion. If vour newly discovered evidence claim is based on recanted trial testimony or a newiv discovered witness, the attached affidavit must be from that witness. Tor all other newly discovered evidence claims, the attached affidavit must be from any person whose testimony is necessary to factually support vour claim for relief. If the required affidavit is not attached to vour motion, vou must provide an explanation why the required affidavit could not be obtained.

(7) Your motion must also be submitted under oath and state as follows:

fat that vou are the defendant in the cause.

(bl that vou understand English or. if vou cannot understand English, that vou have had the mótio'ri translated completely into a language that vou understand, alona with the name and address of the person who translated the motion and a certification from that person that he or she provided vou with an accurate and complete translation.

(cl that vou have either read vour motion or had it read to vou.

f dl that vou understand all of its contents.

fel that vour motion is filed in good faith, with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed ofbv the court. •' " _

ff) that all- of the facts stated in vour motion are true and correct, and

fgt that vou are subject to sanctions, whether imposed by the court or administratively bv the Department of Corrections, including but not limited to forfeiture of gain time, if vour motion is found to be frivolous, malicious, or otherwise made in bad faith or with reckless disregard for the truth.

(81 When the motion is fully completed, the original must be mailed to the clerk of the:court whose address is_(county where sentence was imposed) County Courthouse,_(address of clerk), Píeáda as stated in Florida Rule of Appellate Procedure 9.420.

*1177MOTION

*1178

*1179

*1180

*1181

14. State concisely every ground on which you claim that the judgment or sentence is unlawful. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and the facts supporting them.

For your information, the following is a list of the most frequently raised grounds for postconviction relief. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds that you may have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that your conviction or sentence is unlawful.

DO NOT CHECK ANY OF THESE LISTED GROUNDS. If you select one or more of these grounds for relief, you must allege facts. The motion will not be accepted by the court if you merely check (a) through (i).

(a) Conviction obtained by plea of guilty or nolo contendere that was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea.

(b) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.

(c) Conviction obtained by a violation of the protection against double jeopardy.

(d) Denial of effective assistance of counsel.

(e) Denial of right of appeal,

(f) Lack of jurisdiction of the court to enter the judgment or impose sentence (such as an unconstitutional statute).

(g) Sentence in excess of the maximum authorized by law.

(h) Newly discovered evidence.

(i) Changes in the law that would be retroactive.

*1182

*1183

*1184

WHEREFORE, movant requests that the court grant all relief to which the movant may be entitled in this proceeding, including but not limited to (here list the nature of the relief sought):

*1185

*1186

*1187

MOTION FOR CORRECTION OF JAIL CREDIT

INSTRUCTIONS FOR FILING MO TION FOR JAIL CREDIT PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.801 READ CAREFULLY

1. The attached motion is the only type of motion you are permitted to file to obtain in-state iail credit omitted from vour sentence. It may not be used to obtain out-of-state iail credit.

*11882. You must file this motion within 1 year of the date vour sentence became final.

3. Only 1 motion mav be filed to obtain iail credit omitted from vour sentence. No successive motion for iail credit will be considered.

4. You must complete the attached motion bv filling in the blank spaces.

5. You must tell the truth and sign the attached motion. If vou make a false statement of a material fact in vour motion, vou mav be prosecuted for perjury.

6. You must file the attached motion in the court that imposed the sentence on which the iail credit was omitted.

7. You are not required to pay a filing fee to file the attached motion.

MOTION FOR CORRECTION OF JAIL CREDIT

thereinafter “Defendant”! in pro se fashion, respectfully moves this Honorable Court for iail credit pursuant to section 921.161 Cl I, Florida Statutes, and Florida Rule of Criminal Procedure 3.801. In support of the motion, the Defendant states the following in a question-and-answer format:

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*1191

*1192

*1193

*1194

*1195

*1196

*1197

*1198

*1199

*1200

*1201

*12021. Undersigned counsel represents that, after a timely and diligent search, the records specifically described below:

(a) are relevant to a pending proceeding under rule 3.850; or

(b) appear reasonably calculated to lead to the discovery of admissible evidence; and

(c) have not been obtained previously in discovery or from a prior public records request from either the above-named person or agency or any other; and

(d) presently are not available from the public records repository.

2. The public records requested are as follows:

[list public records requested]

3. Under rule 3.852, any objection to production, including any claim of exemption, must be filed with the trial court and served on all counsel of record within 60 days of receipt of this demand, or that objection will be considered waived.

4. Under rule 3.852, you shall, within 90 days after receipt of this demand:

(a) copy, index, and deliver to the records repository of the Secretary of State any additional public records in the possession of your agency that pertain to this case; and

(b) certify that, to the best of your knowledge and belief, all additional public records have been delivered to the records repository of the Secretary of State; and

(c) recertify that the public records previously delivered are complete if no additional public records are found.

*1203

*1204

*1205

*1206