THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SUBCOMMITTEE ACTION REPORT. WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee

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1 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SUBCOMMITTEE ACTION REPORT TO: WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee FROM: H. SCOTT FINGERHUT Vice Chair, Florida Bar Criminal Procedure Rules Committee Chair, Fast Track Subcommittee Please be advised that the Fast Track Subcommittee conducted a meeting on Tuesday, April 3, 2007, by conference call to discuss docket number FT. Subcommittee attendance was as follows: Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Present Not Present Douglas Duncan (excused) H. Scott Fingerhut Hon. Israel Umberto Reyes Frederick Schaub Robert T. Strain William C. Vose Appendix C, Page 1

2 Peter H. Williams Additional participants included: Gerry Rose, Florida Bar Liaison The Subcommittee took the following action: 1. Determined that the submission is within the scope of Subcommittee authority. 2. Made the following work assignments: The subcommittee s discussion of the recently-enacted Anti-Murder Act was spirited and in depth, touching upon, among other things, (a) whether the Act applies to anyone charged with a qualifying offense (i.e., even if not charged with a violation of probation or community control), (b) the effect of the Act when no violation affidavit has yet been filed (and where, for example, the trial court is aware that the accused is on probation or community control, and that, therefore, an affidavit is on the horizon), (c) whether the Act prohibits the trial court from granting bond on a new charge for an accused on probation or community control, (d) whether the Act s requirement that the accused be brought before the court that granted probation or community control means the same judge or merely the same level (rank) of court, (e) whether the Act must be followed if an accused wishes to plead quickly to a violation affidavit (i.e., when the accused is not before the original sentencing court), (f) whether the Act is unduly punitive in that it would seem, for example, that as long as all conduct is post March 12, 2007 (the effective date of the Act), a dirty urine could result in a maximum sentence for an accused found to be a danger to the community, (g) the operatoin of Rule 3.131(b) and whether the prosecution must still file a motion for pretrial detention under Rule for an accused who qualifies as a VFOSC, and (h) whether the Act requires the trial court to hold a formal violation hearing even if the prosecution cannot prove or otherwise wants to dismiss a violation affidavit. All told, the subcommittee unanimously agreed that Rule (probation and community control) must be amended (by adding a new section (c) purely to address the Act, and perhaps changing the caption to subsection (b) as well), that Rule 3.131(b)(1) (pretrial release) might need to be amended, and that Rule (acceptance of guilty or nolo contendere plea) need not be amended to comport with the Act. A comprehensive review of the remaining rules of procedure is to be undertaken by the subcommittee as well. Appendix C, Page 2

3 3. Made the following decisions: The subcommittee shall immediately begin drafting revisions to Rule 3.790, Rule 3.131, and any other rules of procedure potentially impacted by the Act. The subcommittee initially determined to meet next on Wednesday, April 25, 2007, to continue work on this referral. After the April 25 th date was set, however, the Court issued an order directing that, pursuant to fast track procedure, the Committee report no later than Thursday, May 3, 2007 as to (a) specific portions of Rule identified in the order, (b) the remainder of Rule 3.790, generally, and (c) any other procedural rules potentially impacted by the Act. Accordingly, the subcommittee is in the process of expediting its review of the Act as well as advancing the date of its next teleconference in order to meet the Court s deadline. 4. Prepared the attached written report. As stated, the Committee s reports are due to the Court by Thursday, May 3, The drafting of the same shall proceed following our next teleconference. The Subcommittee Chair is prepared to report to the full Committee at the meeting in Orlando on Friday, June 29, Respectfully submitted, // hsf H. SCOTT FINGERHUT Subcommittee Chair cc: Committee Chair Committee Secretary The Florida Bar Liaison Appendix C, Page 3

4 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SUPPLEMENTAL SUBCOMMITTEE ACTION REPORT TO: WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee FROM: H. SCOTT FINGERHUT Vice Chair, Florida Bar Criminal Procedure Rules Committee Chair, Fast Track Subcommittee Please be advised that the Fast Track Subcommittee conducted a meeting on Monday, April 16, 2007, by conference call to discuss docket number FT. Subcommittee attendance was as follows: Present Not Present Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Douglas Duncan H. Scott Fingerhut Hon. Israel Umberto Reyes Frederick Schaub Robert T. Strain William C. Vose Appendix C, Page 4

5 Peter H. Williams Additional participants included: Gerry Rose, Florida Bar Liaison Hon. Roberto Arias Hon. Mark King Leban The Subcommittee took the following action: 1. Made a continuing determination that the submission is within the scope of Subcommittee authority. 2. Made the following work assignments: The subcommittee continued its discussion of the recently-enacted Anti-Murder Act, this time focusing upon, (a) whether a formal violation affidavit is the triggering document under the Act, or whether (as is done in some circuits) a mere arrest affidavit is enough to compel compliance; (b) whether the Act only applies to probation/community control cases (i.e., and not cases involving new arrests for substantive offenses); (c) the constitutionality of the Act, on several fronts (whether it presents a procedural rule, for one; and whether it infringes upon the right to bail under the Florida Constitution despite statutory and case precedent delineating no such right in probation matters); (d) whether the court must hold a violation hearing, or a danger hearing, even if the prosecution is not ready (or wants to go forward, for that matter); (e) the rationale behind, and impact of, the Department of Corrections practice (evidently, in some parts) to hold a defendant on grounds that do not seem to fall within the Act (e.g., an offender before the court on a violation of probation but not arrested for a qualifying offense); (f) whether the danger finding must occur after the violation hearing itself; (g) whether the prosecution is permitted to plead out, withdraw, or dismiss an affidavit, or must the court schedule a violation hearing even a pro forma one, when necessary to see if the state is ready; (h) whether to include language that a trial court is permitted to depart under the Criminal Punishment Code upon sentencing; and (i) whether a series of forms should be prepared to assist judges to walk through the new rule. The subcommittee also discussed whether to incorporate changes to Rules and/or Appendix C, Page 5

6 alongside Rule 3.790, the primary rule at issue. All told, the subcommittee was of the opinion that our goal is to read the Act narrowly and to craft the required rules even if the legislation cannot, or will not, do what the legislature intended. Additionally, the subcommittee concluded that the rule(s) should be drafted to provide trial judges with maximum guidance on how to deal with these cases from here on out. 3. Made the following decisions: The subcommittee shall continue to draft revisions of Rule 3.790, as well as consider whether changes are necessary to other rules of procedure potentially impacted by the Act. The subcommittee set its next meeting for Monday, April 23, 2007, in order to expedite its work in anticipation of meeting the Court s May 3 rd deadline. 4. Prepared the attached written report. As stated, the Committee s reports are due to the Court by Thursday, May 3, The drafting of the same shall proceed following our next teleconference. The Subcommittee Chair is prepared to report to the full Committee at the meeting in Orlando on Friday, June 29, Respectfully submitted, H. SCOTT FINGERHUT Subcommittee Chair cc: Committee Chair Committee Secretary Appendix C, Page 6

7 The Florida Bar Liaison Appendix C, Page 7

8 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SECOND SUPPLEMENTAL SUBCOMMITTEE ACTION REPORT TO: WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee FROM: H. SCOTT FINGERHUT Vice Chair, Florida Bar Criminal Procedure Rules Committee Chair, Fast Track Subcommittee Please be advised that the Fast Track Subcommittee conducted a meeting on Monday, April 23, 2007, by conference call to discuss docket number FT. Subcommittee attendance was as follows: Present Not Present Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Douglas Duncan H. Scott Fingerhut Hon. Israel Umberto Reyes (excused) Frederick Schaub Robert T. Strain William C. Vose Appendix C, Page 8

9 Peter H. Williams Additional participants included: Gerry Rose, Florida Bar Liaison The Subcommittee took the following action: 1. Made a continuing determination that the submission is within the scope of Subcommittee authority. 2. Made the following work assignments: The subcommittee continued its discussion of the recently-enacted Anti-Murder Act. The first part of the discussion focused upon whether to amend any of the pretrial appearance and detention rules, to wit: Rules 3.130, 3.131, 3.132, and Concerns were raised with regard to the practical effect of defendants being taken to first appearances before judges not of competent jurisdiction to address matters covered by the Act (i.e., to take pleas thereupon), as well as whether, by not distinguishing these special probation and community control cases in the pretrial rules, the subcommittee would effectively be doing away with traditional first appearance hearings. The subcommittee then noted that, with regard to Rule 3.130(a), the language reads, every arrested person, and thus already includes alleged probation and community control violators. Therefore, it was determined that there is no reason to amend this particular rule. The subcommittee noted further that, with regard to Rule 3.131(a), the rule clearly applies only to new, substantive charges and not to probation/community control cases. Further, under Florida law, an offender alleged to have violated probation or community control is not entitled to pretrial release. Nevertheless, some interest was expressed in perhaps cross-referencing Rule to ensure that Appendix C, Page 9

10 trial judges, in essence, know the difference. 1 The insertion of the following language, or a violation of probation or community control, was talked over in the opening sentence of Rule 3.131(a). Alternatively, a Committee Note was suggested (see below). 3. Made the following decisions: For the reasons expressed above, the subcommittee unanimously concluded that Rule need not be amended to comport with the Act. 1 Of special concern, for example, were civil judges who sit at first appearance hearings and who may not know full well the criminal law. Appendix C, Page 10

11 By the same token, the subcommittee concluded, by a vote of 5-3, 2 that Rule 3.131(a) need not be amended either. Instead, a Committee Note should be placed following the rule, indicating as follows: Committee Note: In order to distinguish between new, substantive allegations of criminal offenses and alleged violations of probation or community control, the Criminal Procedure Rules Committee contemplated inserting a cross-reference to Rule in subdivision (a), to wit: 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, or a violation of probation or community control, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions... However, because Rule clearly applies solely to pretrial release and not to probation or community control proceedings, and because, as presently in Florida, an alleged probation or community control violator is not entitled to pretrial release under any circumstances, the Committee deemed the rule sufficient on its face. The subcommittee also unanimously found that neither rule nor Rule 3.133, which clearly deal with new, substantive crimes, need be amended to incorporate any reference to the Act. The remainder of the subcommittee s discussion then turned to Rule As to that rule, first, the subcommittee unanimously agreed that no headers should employed to introduce subdivisions (b)(2) and (b)(3) i.e., Lunsford Act Proceedings for subdivision (b)(2), and Anti-Murder Act Proceedings for subdivision (b)(3). The subcommittee was split on just what was intended by the legislature s directing that the alleged offender be brought before the court that granted the probation or community control. Does this mean the same judge that sentenced the defendant? Or does it mean the same level judge that did so? Rather than write our own interpretation into the rule on this point, the subcommittee unanimously agreed instead to address this concern in our Comment to the Court. The subcommittee was unanimous in reaching the same conclusion with regard to the apparent practice of some Departments of Corrections to treat as Act-affected offenders those who perhaps should 2 On the question of whether to amend Rule 3.131(a), the 5-3 vote of the subcommittee not to do so broke down as follows: J. Bateman, yes; J. Cohen, no; Mr. Duncan, no; Mr. Fingerhut, no; Mr. Schaub, no; Mr. Strain, yes, Chair Vose, yes; and Mr. Williams, no. Appendix C, Page 11

12 not be (i.e., offenders who do not fall under the criteria set forth in section (8)(d). This too shall be addressed in the Committee s Comment to be filed with the Court. The subcommittee was unanimous as well not to list the long list of qualifying offenses in the rule. Rather, a reference to the appropriate statute section shall simply be made. These questions remain: 1. Whether to include that a defendant is permitted to enter an admission at first appearance, and if so, verifying the source from which the subcommittee believes this to be the case; 2. Whether to include that the term convictions includes nolo pleas and withholds; 3. Whether to specify that the danger finding must follow the violation hearing, if that is indeed the case under the Act; 4. Whether a violation affidavit is required, as opposed to a mere arrest affidavit ; 5. Whether the state, or the Department of Corrections (i.e., probation and community control officers), for that matter, may withdraw an affidavit, once filed, or must the court go forward, even when the state is unwilling, disinclined, or otherwise unprepared; 6. Whether the state may plead a matter out before formal hearing; 7. Whether the court may sentence the defendant to anything other than range provided under the Criminal Punishment Code (including whether the court may depart downward); 8. Whether forms should be created for judges to help them walk through the Lunsford and/or Anti-Murder Acts; and 9. The constitutionality of the legislation, including (a) whether it works a procedural rule; (b) the difference between who qualifies as a VFOSC (under s (8)(b)) and who shall be held without bail (under s (8)(d)); and (c) the importance, if any, of the right to bail under the Florida Constitution. 10. Of interest too is the relationship between section (8)(b) which defines who qualifies as a VFOSC and section (8)(d) which specifies which alleged probation and community control violators are to be denied bail. As for the former, subdivision (8)(b)1. is clear enough, as the defendant is on supervision for a post- Appendix C, Page 12

13 Act qualifying offense. However, subdivision (8)(b)2. may implicate ex post facto in that it penalizes a defendant for having been previously convicted of what is now a qualifying offense. Under subdivision (8)(b)3., a defendant cannot be classified as a VFOSC until found to have violated probation by committing a qualifying offense which begs the question: How is a defendant held mandatorily without bail before the violation hearing itself? Similarly, under subdivisions (8)(b)4., 5., and 6., apart from being on probation or community control and previously found to be an HVO, 3-time violent felony offender, or sexual predator, the defendant must have committed a qualifying offense post-act. Does this mean the defendant must be found guilty of violating probation or community control? If so, as in subdivision (8)(b)3., how can he or she be held without bail beforehand? With regard to section (8)(d), subdivision (8)(d)1. includes all VFOSCs i.e., everyone identified in section (8)(b). But there is more. Subdivisions (8)(d)2. and 3. include those offenders who have only been arrested for a qualifying offense. In essence, then, are these defendants pre VFOSCs? If so, how does this square with the definition of who is a VFOSC in the first place under section (8)(b) none of which seem to include pre-convictees? The subcommittee closed the teleconference determined to continue its work as to Rule 3.790, and set its next meeting for Wednesday, April 25, 2007, in anticipation of meeting the Court s May 3 rd deadline. 4. Prepared the attached written report. As stated, the Committee s reports are due to the Court by Thursday, May 3, The final drafting of the same is expected to follow our next teleconference. The Subcommittee Chair is prepared to report to the full Committee at the meeting in Orlando on Friday, June 29, Respectfully submitted, Appendix C, Page 13 H. SCOTT FINGERHUT Subcommittee Chair

14 cc: Committee Chair Committee Secretary The Florida Bar Liaison Appendix C, Page 14

15 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE THIRD SUPPLEMENTAL SUBCOMMITTEE ACTION REPORT TO: WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee FROM: H. SCOTT FINGERHUT Vice Chair, Florida Bar Criminal Procedure Rules Committee Chair, Fast Track Subcommittee Please be advised that the Fast Track Subcommittee conducted a meeting on Wednesday, April 25, 2007, by conference call to discuss docket number FT. Subcommittee attendance was as follows: Present Not Present Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Douglas Duncan H. Scott Fingerhut Hon. Israel Umberto Reyes (excused) Frederick Schaub Robert T. Strain Appendix C, Page 15

16 William C. Vose Peter H. Williams Additional participants included: Gerry Rose, Florida Bar Liaison The Subcommittee took the following action: 1. Made a continuing determination that the submission is within the scope of Subcommittee authority. 2. Made the following work assignments: The subcommittee continued its discussion of the recently-enacted Anti-Murder Act. The decisions made by the subcommittee are detailed below. 3. Made the following decisions: First, the subcommittee unanimously decided that all of the criteria by which trial judges are to determine whether a defendant is a danger to the community, be it under subdivision (b)(2) or subdivision (b)(3) of Rule 3.790, should be line itemized. 3 The subcommittee next unanimously agreed on the opening language to subdivision (b)(1) to read, Except as otherwise provided in subdivisions 2 and 3 below. With regard to the [court] of competent jurisdiction language in subdivision (b)(1), the subcommittee reflected that the reason this language was previously inserted into the rule was the 3 This resulted in the re-drafting of subdivision (b)(2), which had previously been submitted, and tentatively approved by the Court, in paragraph form. Appendix C, Page 16

17 subcommittee s concern a significant one in light of then-recent events that at first appearance county judges often preside over felony violations of probation and community control and are empowered to adjudicate certain aspects of the case, but not others. Although the subcommittee acknowledged that there may indeed be litigation to come with regard to just which court is the right court to preside over certain of these probation and community control matters, the subcommittee unanimously decided to leave the competent jurisdiction language intact as earlier written. The subcommittee also discussed subdivision (a) of the rule and whether to specify that we deal here solely with felony violations of probation and community control a fact that is but implied given that the Department of Corrections is the designated supervising authority. 4 Upon consideration, the subcommittee unanimously determined that the felony factor is self-evident and that the subdivision need not be amended. As to whether a defendant may admit to a probation or community control violation at first appearance, the subcommittee noted that under s (4) the following language has been longstanding, and indeed remained untouched by the Act: [A] felony probationer or an offender in community control who is arrested for violating his or her probation or community control in a material respect may be taken before the court in the county or circuit in which the probationer or offender was arrested (emphasis added). Accordingly, the subcommittee unanimously agreed there is no need to specify in the rule that an offender may enter a plea at first appearance. As a practical matter, however, the subcommittee noted that it is unlikely that a defendant would admit to a violation at first appearance only to not be released and sent back to the court that placed him or her on supervision for the adjudication of the remainder of the violation process. The subcommittee also grappled with just what was intended by the language in the Act requiring that a defendant be brought before the court that granted the probation or community control, i.e., whether this means the actual sentencing judge, any circuit judge, or perhaps the judge presently presiding over the division to which the case was assigned? An additional concern was raised in that case law gives to the accused, in certain re-sentencing contexts, the option to elect before whom to appear. In light of this level of uncertainty, the subcommittee unanimously agreed to craft the rule with the legislative language intact, and to note for the Court in our Committee Comment the concerns that have been recognized. The subcommittee next unanimously agreed that, because of the statute s clarity, the rule need not specify that withholds of adjudication and nolo contendere pleas count as convictions when it comes to identifying violent felony offenders of special concern under s (8)(a). As to language previously agreed to by the subcommittee placing a reference to s (8)(d) in 4 Only circuit judges may order that the Department of Corrections supervise probationers and community controllees. Offenders sentenced by county judges are supervised elsewhere. Appendix C, Page 17

18 subdivision (b)(3), upon reconsideration, it was unanimously agreed that the reference should instead refer to section (8) in full. The reason for this change was that a reference to subsection (8)(d) (specifying which offenders are to be denied bail) necessarily will refer the judge or practitioner to subsection (8)(b) (defining which offenders meet the criteria to be declared violent felony offenders of special concern), and that this in turn must lead to a reference to subsection (8)(a) (to learn that withholds of adjudication and nolo contendere pleas count as convictions). In response to another concern that was raised, the subcommittee unanimously concluded that, pursuant to s (8)(e), the danger to the community hearing must take place after the trial court has conducted the probation or community control violation hearing, not before. The subcommittee next considered whether the trial court must hold the danger to the community hearing even if it is clear that, once the violation hearing has been conducted, that the defendant is going to be sentenced to a term of incarceration. The subcommittee noted that although the intent of the Act seems to be accomplished by the incarcerative sentence, the legislation does seem to call for precisely this a danger hearing in any event. The subcommittee contemplated the burden to be placed on the criminal justice system by requiring danger hearings for all probation and community control violators; indeed, the subcommittee was of the opinion that danger hearings should be required only where the court contemplates a non-incarcerative sentence. With that said, the subcommittee was equally cognizant of the fact that defendants may likely appeal (even) a non-incarcerative sentence handed down by a trial court that fails to conduct the requisite danger hearing. And so, the subcommittee unanimously agreed not to address this matter in the body of the rule itself. Instead, the full Committee shall apprise the Court of this concern in the Committee Comment. As the allotted time ran out for this teleconference, another meeting was scheduled for Friday, April 27, 2007, at noon, leaving the following questions to resolve: 1. Whether a violation affidavit is required, as opposed to a mere arrest affidavit; 2. Whether the state, or the Department of Corrections, for that matter, may withdraw an affidavit, or must the court go forward; 3. Whether the state may plead a violation out before formal hearing; 4. Whether the court may sentence the defendant below the LPS; 5. Whether we should create a form, or forms, for judges to walk through the Lunsford and/or Anti-Murder Acts; and 6. Whether the legislation is constitutional, including these areas of inquiry: Appendix C, Page 18

19 (a) (b) the single-subject rule; whether the Act is procedural in nature; (c) the ex post facto implication, if any, of s (8)(b)2., which enables an offender to be declared a VFOSC if they have been previously convicted for what is only now a qualifying non-bondable offense; and (d) the right to bail for defendants who, under the Act, are not declared VFOSCs until: (i) after it s over, to wit: the offender is found to have violated probation or community control by committing a qualifying offense, as under s (8)(b)3., or the offender has committ[ed] a qualifying offense, as under ss (8)(b)4., 5., and 6., (ii) or before it even begins, to wit the offender has merely been arrested for a qualifying offense, as under ss (8)(d)2. and Prepared the attached written report. As previously indicated, the Committee s reports are due to the Court by Thursday, May 3, The subcommittee is doing its level best to complete its mission in order that the full Committee is able to meet that time frame. The Subcommittee Chair is prepared to report to the full Committee at the meeting in Orlando on Friday, June 29, Respectfully submitted, Appendix C, Page 19 H. SCOTT FINGERHUT

20 Subcommittee Chair cc: Committee Chair Committee Secretary The Florida Bar Liaison Appendix C, Page 20

21 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE FOURTH SUPPLEMENTAL SUBCOMMITTEE ACTION REPORT TO: WILLIAM C. VOSE Chair, Florida Bar Criminal Procedure Rules Committee FROM: H. SCOTT FINGERHUT Vice Chair, Florida Bar Criminal Procedure Rules Committee Chair, Fast Track Subcommittee Please be advised that the Fast Track Subcommittee conducted a meeting on Friday, April 27, 2007, by conference call to discuss docket number FT. Subcommittee attendance was as follows: Present Not Present Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Douglas Duncan H. Scott Fingerhut Hon. Israel Umberto Reyes (excused) Frederick Schaub Robert T. Strain Appendix C, Page 21

22 William C. Vose Peter H. Williams Additional participants included: Gerry Rose, Florida Bar Liaison Craig Shaw, Florida Bar Liaison The Subcommittee took the following action: 1. Made a continuing determination that the submission is within the scope of Subcommittee authority. 2. Made the following work assignments: The subcommittee completed its work as to this referral conforming Rule to implement the recently-enacted Anti-Murder Act. The decisions made by the subcommittee are detailed below. 3. Made the following decisions: First, the subcommittee discussed at length the matter of just what it is that triggers the Anti-Murder Act to require an accused on probation or community control to be held without bail a formal violation affidavit, a mere arrest affidavit, or perhaps an oral representation to the court that an offender is in fact under supervision. The subcommittee noted that procedural practices as well as documentary terminology differ across the state as to how probation and community control violations are brought into the system. 5 And concern was expressed that more than a notation in an officer s probable cause affidavit that an 5 The subcommittee recognized that police and probation/community control officers alike are permitted to make on view (i.e., warrantless) arrests which might result in an arrest affidavit being filed at first, to be followed at a point down the road by a formal probation or community control violation affidavit. Appendix C, Page 22

23 offender is on probation should be required, and certainly that more than an oral comment is required (for example, in a situation where an offender is brought before the court on a new offense and the first appearance judge is told that the offender is on probation or community control). 6 Overall, the subcommittee s goal was to ensure that Rule account for the scenario where the defendant is before the court on a new offense, but has not yet been arrested on the probation or community control violation, 7 lest our trial judges be set up for confusion and reversal. 8 Ultimately, the subcommittee considered the language contained in s (1) (defining as the triggering event an alleged violation of felony probation or community control ) against the language contained in s (4) (which requires that an offender be arrested for violating probation or community control), and determined, unanimously, that, as a matter of statutory construction, the latter, more definite language controls. Therefore, while acknowledging the triggering debate that may follow, the subcommittee unanimously determined that the following is to be inserted at the beginning of subdivision (b)(3) the same language that has already been proposed to introduce subdivision (b)(2): When a probation or community controllee is arrested for violating his or her probation or community control in a material respect... The subcommittee next considered whether the state, or the Department of Corrections, for that matter, may withdraw an affidavit once it has been filed, or whether instead the court must go forward with the violation hearing. Discussion was also had as to whether the state is even a party to this type of action (i.e., whether allegations of violating probation and community control are to be resolved between the court and the Department of Corrections alone). In either event, the subcommittee unanimously determined not to place anything regarding this issue in the rule itself, and instead to note this concern in the Committee s Comment to the Court. As to whether an offender is permitted to admit to an alleged violation, thus forestalling the court from going forward with the violation hearing, the subcommittee unanimously agreed not to place anything regarding this in either the rule or the Committee Comment. Instead, it was deemed that it is evident that an accused may enter an admission to the Court at any time, even under the Anti-Murder Act. 6 In such an instance, the subcommittee was uncomfortable with the prospect of requiring judges to order the arrest of offenders, or encourage prosecutors to file the appropriate paperwork 7 It is anticipated that under this circumstance the state would be called to action to guarantee, of its own accord, that the appropriate triggering paperwork is filed. Whether a trial judge is permitted to hold an offender without bail pending the filing of such triggering paperwork something that indeed may be happening already in our courts is a matter that the subcommittee recognized might be litigated in the future although, Anti-Murder Act aside, neither probation nor community control violators have a right in Florida to pretrial release. 8 Concern was also expressed about judges who are allegedly imposing no bond on new, substantive charges under the auspices of the Act, though the Act clearly does not call for this. Appendix C, Page 23

24 The subcommittee next contemplated whether to include in the rule any direction as to the violation sentence the trial court may hand down. Specifically, given that the Act directs that, if the defendant poses a danger to the community, the court is to revoke probation or community control and shall sentence the defendant up to the statutory maximum, or longer if permitted by law, the subcommittee determined that this language was longstanding and that trial courts are permitted, as before, to depart below the lowest permissible sentence under the Criminal Punishment Code. Hence, the subcommittee resolved that there is no need to place this direction in the rule at all. As to the issue of whether to create a set of forms to guide trial judges through the Lunsford and Anti-Murder Acts, the subcommittee unanimously agreed that this was indeed something the Committee should undertake, but that it was not a Fast Track function (at least not at this juncture). Accordingly, formal request is hereby made of the Committee Chair to refer this task to the appropriate substantive subcommittee for review. A note of the same shall be made in the Committee Comment to the Court. As to the several constitutional questions that have been discussed by the subcommittee, the subcommittee noted, generally, that the primary function of Fast Track particularly of late, as evinced by Justice Wells at our Committee meeting last in Miami is not to debate constitutionality but rather to create rule drafts that do what enacted legislation says should be done. 9 Therefore, despite the several questions left on the table, 10 the subcommittee unanimously approved its Rule draft, and agreed to advise the 9 Oft-debated, though reasonable and well-intentioned, this is not the view of all Fast Track Subcommittee members. 10 The questions concerning the legislation s constitutionality include: (a) (b) (c) (d) whether the Act is violative of the single-subject rule; whether the Act is procedural in nature; the ex post facto implication, if any, of s (8)(b)2., which enables an offender to be declared a VFOSC if they have been previously convicted for what is only now a qualifying non-bondable offense (note was made during subcommittee discussion that this type of challenge proved unsuccessful in the habitual offender context); and the right to bail for defendants who, under the Act, are not declared VFOSCs until: (i) after the violation hearing is over, to wit: the offender is found to have violated probation or community control by committing a qualifying offense, as under s (8)(b)3., or Appendix C, Page 24

25 Court in our Committee Comment each of the constitutional concerns raised. The subcommittee also recognized that the full Committee, now by its vote, may properly reflect upon the constitutionality of the Act and the proposed rule, in addition to whether the proposal properly implements the legislation. 11 In either event, whether voted up or down, the subcommittee noted that neither it nor the full Committee should fail to comply with the Court s directive that we produce rules that instruct our trial courts on the implementation of new criminal justice legislation. Lastly, with regard to the impending May 3 rd deadline set by the Court, the subcommittee agreed unanimously that in order to provide the full Committee with enough time to review this proposal, as well as for the Board of Governors to do the same, the Committee shall ask the Court for a brief extension until Tuesday, May 15, 2007 and that in the motion to extend the Committee shall advise the Court that full- Committee review is on-going, as well as attach a draft of the work we have done to revise Rule thus far Prepared the attached written report. With the proviso that the creation of requisite forms is to be taken up by the appropriate substantive subcommittee, this completes the Fast Track Subcommittee s work as to this referral. the offender has committ[ed] a qualifying offense, as under ss (8)(b)4., 5., and 6., (ii) or before it even begins, to wit the offender has merely been arrested for a qualifying offense, as under ss (8)(d)2. and Discussion was had briefly as to whether when, as here, an e-vote is called for, the Committee is required to submit an up-or-down vote, or whether individual comments are to be accepted. The majority of the subcommittee determined that an up-or-down vote alone was appropriate, and that Committee members wishing to file comments may do so in their individual capacity once the Court publishes the final version of the rule for public comment. 12 The subcommittee unanimously agreed that its Action Reports are not to be provided to the Court at this juncture. Instead, these shall follow upon the filing of the formal Comment. Appendix C, Page 25

26 The Subcommittee Chair is prepared to report to the full Committee at the meeting in Orlando on Friday, June 29, Respectfully submitted, H. SCOTT FINGERHUT Subcommittee Chair cc: Committee Chair Committee Secretary The Florida Bar Liaison Appendix C, Page 26