IN THE SUPREME COURT OF FLORIDA COMMENTS OF DARYL S. GUILDFORD INTERESTED ERS N. COMES NOW, Daryl Guildford, an interested person, and offer the

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1 IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE CRIMINAL PROCEDURE RULES POSTCONVICTION RULES SC COMMENTS OF DARYL S. GUILDFORD INTERESTED ERS N COMES NOW, Daryl Guildford, an interested person, and offer the following comments on the proposed amendments to Florida Rules of Cri inal Procedure (Motion for Postconviction Relief). I have been an inmate certified law clerk in the Florida Department of Corrections (FDOC) for over fifteen (15) years and this experience enables me to provide very useful feedback on the proposed rule changes. Proposed amendments to the unnotarized oath and notarized oath I have concerns regarding multiple changes to Florida Rules of Criminal Procedure (Motion for Postconviction Relief). First, the Florida Bar's Criminal Procedure Rules Committee is proposing the Oath on the form must be by notary only and unnotarized oaths will be no longer permissible. I request the Court reject this proposed amendment. This proposed amendment is unnecessarily restrictive, serves no legal purpose, creates an unnecessary hardship and burden on the pro-se inmate and will create needless untimely motions being filed. LEGAL M IL

2 This Court has already determined that the oath set forth in section (2)* is sufficient to satisfy the oath requirement in postconviction motions. See State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993). This Court reasoned that this particular oath provides the same protection against perjury as a notarized oath. At that time this Court amended the form for postconviction motions to reflect that this unnotarized oath may be used. See id. at (amending Florida Rule of Criminal Procedure 3.987). Moreover, by requiring the oath by notary only will create an unnecessary hardship and burden on the pro-se inmate that this Court has no idea. At most institutions the staff member that performs notary services is not readily accessible to the inmate population. Inmates are required to submit an inmate request to be scheduled and the wait is usually days sometimes weeks. Because the staff member that does notary is not the Law Library Supervisor or Mailroom Employee the document may not be stamped, "Provided to (name of institution) on (day, month and year blank to insert date) for mailing by (officers initials)." Also by rule, FDOC won't notarize the inmate's copy of any document. Florida Administrative Code (F.A.C.) (11)(a)2 states " Such employees ' Section (1), Fla. Stat. (2013), provides that any document that must be verified by a person may be verified in one of two ways. Section (1)(a) allows for verification under oath or affirmation as set forth in 92.50(1), Fla. Stat. Section (1)(b), Fla. Stat. (2013), allows for verification by signing the following written declaration: Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.(emphasis added) 2

3 shall not accept any document for notarization until the inmate indicates that he is ready for it to be mailed or forwarded. The employee is not required to notarize the inmatesfile copy ofthe document." (emphasis added) This creates an additional problem because ifthe inmate's document is arbitrarily misplaced or unintentionally lost and not received by the court the inmate won't have an exact copy of the document provided to prison officials for mailing (with notary stamp) to provide the court. Finally, in proposing new rule (Motion for Jail Credit) the committee placed an unnotarized oath on this motion. Why would an unnotarized oath be sufficient in and not in 3.987? An unnotarized oath is used in numerous postconviction motions including motions filed under Fla.R.App.P (c) (Petitions Seeking Belated Appeal or Belated Discretionary Review); Fla.R.App.P (d) ( Petitions Alleging Ineffective Assistance of Appellate Counsel); Fla.R.Crim.P (Motion for Jail Credit); and 28 USC 2254 (Federal Habeas Corpus Petitions). For these reasons I respectfully request this Court reject removing the unnotarized oath from I submit this Court utilize the unnotarized oath proposed in new rule (Motion for Jail Credit) also in Also that the unnotarized oath be in compliance with Fla.R.Crim.P (n). 3

4 Proposed amendments to Number Six (6) of Instructions to Rule My concern for the proposal to Number Six (6)(a)-(g) of the Instructions to Rule is that they are confusing and misleading. The proposed change seems to suggest subsections (a)-(g) of Number Six (6) of the Instructions only apply to claims of newly discovered evidence and not the entire motion. The proposed changes (a)-(g) should apply to the motion 3.987, not only claims of newly discovered evidence as required in Fla.R.Crim.P (n). I ask for this Court to remove subsections (a)-(g) from number six (6) of the Instructions and create a separate section in the Instructions for subsections (a)-(g) (Motion for Postconviction Relief) not in compliance with Fla.R.Crim.P 3.850(n) I assert that the proposed amendments to Florida Rules of Criminal Procedure (Motion for Postconviction Relief) does not make the motion in compliance with the Fla.R.Crim.P 3.850(n) which states: (n) Certification of Defendant; Sanctions No motion may be filed pursuant to this rule unless it is filed in good faith and with a reasonable belief that it is timely, has potential merit, and does not duplicate previous motions that have been disposed of by the court. (1) By signing a motion pursuant to this rule, the defendant certifies that: the defendant has read the motion or that it has been read to the defendant and that the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous 4

5 motions that have been disposed of by the court; and, the facts contained in the motion are true and correct. (2) The defendant shall either certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant. Failure to include this information and certification in a motion shall be grounds for the entry of an order dismissing the motion pursuant to subdivision (f)(1), (f)(2), or (f)(3). When this Court amended Fla.R.Crim.P in In re Amendments to the Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, 132 So. 3d 734, (Fla. 2013) it made the current version of the form (3.987) obsolete. Because (Motion for Postconviction Relief) was not amended with the rule, pro-se inmates were without guidance or an updated form. The lower courts are constantly dismissing the current version of the form for failure to comply with the requirements outlined in rule 3.850(n). The current proposal will also conflict with Rule 3.850(c) which states that motions shall be under oath, not that it must be a notarized oath. The proposed language of the amendments does not make the rule (Motion for Postconviction Relief) in compliance with rule 3.850(n) and would be subject to automatic dismissal by the trial court. 5

6 Therefore I propose this Court reject the proposed version of the form and create a form in compliance with Fla.R.Crim.P Here's a proposal for an oath and certification. OATH UNDER PENALTY OF PERJURY, I declare that I have read or the foregoing document has been read to me, I understand its content, and swear that all facts stated in it are true and correct. Executed this day of. /s/ CERTIFICATE OF DEFENDANT Pursuant to Rule 3.850(n), the Defendant hereby certifies that: 1. The Defendant understands English and has read the motion and understands its content. 2. The motion is filed in good faith, and the Defendant has a reasonable belief that it is timely, has potential merit, and does not duplicate previous motions. Executed this day of /s/ 6

7 Proposed amendments should include a certificate of mailing or service I have a concern that the old form and proposed amendments do not include a certificate of mailing or service in Rule Because a motion filed under Rule requires an ex-parte ruling, the defendant is not required to serve the State Attorney so this Court never included a certificate of service in its standard form.2 However, in Haag v. State, 591 So. 2d 614, 617 (Fla. 1992), this Court recognized the "mailbox rule" in Florida. Also in Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000), this Court acted to remedy a further problem associated with the "mailbox rule," holding that the presumption of timely filing by inmate existed if the legal document contained a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date and that the presumption shifted to the state the burden to prove that the document was not timely placed in prison officials' hands for mailing. The problem I submit is that a certificate of mailing or service is necessary for the court and the pro se inmate to establish the date the document was turned over to prison or jail officials for mailing to the court. It can be assumed following Thompson that DOC promulgated Rule (8)(g), Florida Administrative Code which reads in pertinent: ² It has always been a topic of debate among pro-se inmates if the state attorney was required service pursuant to Fla.R.Crim.P (a). 7

8 Inmates shall present all outgoing legal mail unsealed to the mail collection representative to determine, in the presence of the inmate, that the correspondence is legal mail, bears that inmate's return address and signature, and that it contains no unauthorized items.... [T]he mail collection representative shall stamp the document(s) to be mailed and the inmate's copy, if provided by the inmate. The date stamp shall be in the following format: "Provided to (name of institution) on (day, month and year blank to insert date) for mailing, by (officer's initials)." The mail collection representative shall then have the inmate initial the document(s) next to the stamp and have the inmate seal the envelope in the mail collection representative's presence. I disagree that this procedure solved all problems a pro se inmate may encounter. There may be times when an inmate has difficulties filing a motion within the Department and cannot receive the stamp, and must rely on a certificate of mailing or service. (i.e. in transit from one institution to another or when visiting the outside hospital an inmate may be unable to reach the appropriate institutional official.) Additionally, there are times when a pro se inmate will be serving a sentence in DOC and transferred to a county jail for other charges, child custody issues, or to render substantial assistance where this procedure is not utilized. Simply because a pro se inmate is in a county jail the time limits for filing his motion under Rule does not toll and he must still timely file his motion. Although under these circumstances a pro se inmate would most likely eventually be allowed to file his motion outside the time window, it would require 8

9 lengthy litigation and a waste of judicial time and resources that would be unnecessary if a proper certificate of mailing or service was utilized. For these reasons I propose this Court insert a certificate of mailing or service in the new standard in compliance with Hagg and Thompson to clearly establish when the document was submitted to prison officials for mailing. I submit that the standard certificate in Fla. R. App. P (d)(1) to be a model: (1) By Pro Se Inmate: I certify that I placed this document in the hands of (here insert name of institution official) for mailing to (here insert name or names and addresses used for service) on (date) (name) (address) (prison identification number) Proposed amendments to the criminal procedure rules The Florida Bar's Criminal Procedure Rules Committee alleges the majority of the proposals are in response to a request by this Court for the Committee, with input from the Criminal Court Steering Committee, to review the issue of successive rule 3.800(a) motion and the post conviction procedure forms in light of 9

10 this Court' s decision in In re Amendments to the Fla. Rules ofcriminal Procedure & the Fla. Rules ofappellate Procedure, 132 So. 3d. 734 (Fla. 2013). My main concern is how will any of the proposed changes to Rule streamline the post conviction process and assist the pro-se inmate in filing a facially and legally sufficient motion. I believe the Committee has failed to adhere to suggestions of Justice Pariente in her concurring opinion when she stated the following: 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. Because the ultimate issue is the efficient, effective, timely, and fair administration of justice, I also note that, in the 2006 Report of the Postconviction Rules Workgroup, the Committee consisting of trial and appellate court judges observed that the addition of forms for use by prisoners, as well as the ability to handle these filings electronically, would be two ways that the judicial system could 10

11 balance efficiency with fairness. As set forth in the report authored by Judge Altenbernd: Just as a more extensive collection of form motions and orders was required to assist pro se litigants in family law cases, the Workgroup believes that more extensive forms are needed to assist the litigants and the courts in processing postconviction proceedings.{ l 12 So. 3d 1244} It is often cumbersome and time-consuming to amend rules of procedures. Forms can be more readily adjusted. The law of postconviction is frequently affected by an issue that generates many motions for a short period of time....there is little question that a significant percentage of all motions filed by prisoners have little or no merit. The typical prisoner, however, is untrained in the law, given no adequate form pleadings, and is represented, at best, by other prisoners with limited paralegal training or experience. It is often difficult or impossible to distinguish between a prisoner who is ignorant of the law and one who is filing motions in bad faith. The fact that a prisoner often has limited education and may suffer from mental illness makes this process even more difficult. In my opinion it seemed to me Justice Pariente was encouraging the Committees and Groups to create a standard form that could enable the Court to stop Pro-se inmates from filing successive or frivolous motions and abusing the system but also having a more extensive detailed form that the pro-se inmate could submit that clearly presents his claims to the courts for relief. Taking a close look at the current form and proposals, it does nothing to assist a prisoner in presenting a facially and legally sufficient claim. In section 14 of the Motion (supporting facts) the inmate is instructed to "tell your story without citing cases or law." It is clearly established that for a claim of denial of effective assistance of counsel to be facially sufficient the two prongs of Strickland v Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) must be met 11

12 in the motion. A pro-se inmate just telling his story would be hard pressed to meet those requirements. The courts are now forced to constantly enter orders pursuant to Spera v State, 971 So. 2d 754, (Fla. 2007) ordering the pro-se inmate to make their claims facially sufficient again wasting judicial time and resources. Had the pro-se inmate been instructed in the form to clearly allege "Counsel's deficient performance and how he was prejudiced by it," I am of the opinion his claim would have been facially sufficient or prior to actually filing the motion he would have realized the claim was not proper for post conviction relief and not filed it with the court. Nevertheless, if after being instructed on the proper procedure in the form on how to raise his claims it would be more clear for the courts to distinguish between pro-se inmates who are ignorant of the law and one who is filing motions in bad faith. I agree with Justice Pariente that a significant amount of claims that are raised by pro-se inmates have little or no merit, however, the Florida Innocence Commission in its Final Report issued on June 25, 2012, to this Court identified five causes for wrongful convictions: Eyewitness identification, false confessions, informants and jailhouse snitches, improper/invalid scientific evidence, and professional responsibility. While studying the topic of professional responsibility, it became crystal clear to the Commission that a sixth significant cause exists that may lead to wrongful convictions: The underfunding of the criminal justice system in Florida. Because of the significance of this issue, subsection (h) has been included in the Executive Summary. Many members expressed their concerns about criminal 12

13 justice system funding during discussions that occurred at the June 11, 2012 meeting. The following points raised by three Commission members are the most salient and reflect the mindset of the Commission. Judge Silverman stated that without adequate counsel, due process is not assured. If we do not provide adequate funding there is a loss of the due process of law which will lead to wrongful convictions. Dean Acosta commented that if one is serious about doing something about wrongful convictions we must recognize that a lack of funding is the most serious threat that implicates the state attorneys, public defenders, the Attorney General, criminal conflict counsel, and the judiciary. All of the other recommendations of the Commission are secondary. More funding is fundamental to our rights and the system of law. Mr. Coxe succinctly stated that inadequate funding leads to mistakes that are a recipe for wrongful convictions. Although the commission has identified and studied these six causes of wrongful convictions, one should not draw the assumption that the Commission, in its two years of work, has been able to study every conceivable reason that leads to the conviction of the innocent. As Judge Silvernail succinctly stated at the final Commission meeting on June 11, 2012: Attorney misconduct, ineffective defense counsel, prosecution errors, heavy judicial caseloads, and inadequate funding all lead to wrongful convictions. It is clear from the detailed account from the Florida Innocence Commission in its Final Report that there is a very good possibility that wrongful convictions exist due to the multiple reasons found by their extensive research. It also establishes if not because of attorney misconduct, ineffective defense counsel, prosecution errors, heavy judicial caseloads, and inadequate funding there is a "reasonable probability" the result of the proceedings would have been different and/or counsel's ineffectiveness affected the fairness and reliability of the 13

14 proceedings, thereby undermining confidence in the outcome. This brings us squarely back to the necessity to have a form that can assist the unrepresented prose inmate to properly present timely, legal, and facially sufficient claims to the court. Therefore, I submit this Court reject the proposals and current version of Florida Rules of Criminal Procedure (Motion for Postconviction Relief). I submit that Florida Rules Of Criminal Procedure (Motion for Postconviction Relief) be amended to clearly explain to pro-se inmates what may be brought under this rule in the framework of Rule proceedings while also curtailing the filing of successive and frivolous motions. Also most importantly, rules and forms that provide adequate instructions to the pro-se inmates of what must be included in each argument to make it legally and facially sufficient. CONCLUSION I thank this Court for the opportunity to provide my comments to these proposals because as an inmate law clerk and pro-se inmate I believe it's essential we have the opportunity to present our claims to the courts in the most efficient, effective, and timely manner available. I also understand the necessity to create procedures and forms to limit the filing of successive motions and motions filed in bad faith. I request that this Court keep the goal of providing access to the courts 14

15 for pro- se inmates at the forefront of amending Florida Rules of Criminal Procedure (Motion for Postconviction Relief). Respectfully Submitted, Üaryl GÍí ildford DC# CERTIFICATE OF SERVICE I certify that I placed this document in the hands of Mr. Mcrae, Classification Officer at Blackwater River Correctional Facility for mailing to The Florida Supreme Court, Office of the Clerk 500 South Duval Street, Tallahassee, Fl ; Committee Chair Judge Samantha L. Ward, George Edgecomb Courthouse, 800 E. Twiggs Street, Suite 421, Tampa , The Bar Staff Liaison to the Committee, Heather S. Telfer, 651 E. Jefferson Street, Tallahassee, Fl on 6* day of October Daryl Guildford DC# Blackwater River Corr. Facility 5914 Jeff Ates Road Milton, Florida