THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SUBCOMMITTEE ACTION REPORT To: George Tragos, Chair, Criminal Procedure Rules Committee From: H. Scott Fingerhut, Chair, Fast Track Subcommittee Date: May 23, 2006 Referral No(s).: 06-06-FT Please be advised that the Fast Track Subcommittee conducted a meeting on Tuesday, May 23, 2006, by conference call, to discuss a referral received from the Committee Chair regarding HB 61 unanimously passed by the Florida House on May 4, 2006, and which amends Fla. Stat. s. 925.11 (relating generally to the testing of DNA evidence) and creates Fla. Stat. s. 925.12 (in which the legislature expressly called upon the Florida Supreme Court to adopt rules of procedure for a court, prior to the acceptance of a plea, to make an inquiry into DNA-related matters). Subcommittee attendance was as follows: Present The Honorable Thomas H. Bateman III, the Honorable Jay Paul Cohen, H. Scott Fingerhut, Subcommittee Chair, Ann Elizabeth Finnell, Abe Laeser, Robert Strain, Carolyn Snurkowski, and Peter Williams. Absent (and excused) The Honorable Israel Reyes, and the Honorable Olin Shinholser. Additional participants: George Tragos, Committee Chair, Gerry Rose, Florida Bar Liaison. The subcommittee took the following action: Referral No. 06-06-FT Upon advice from the Committee Chair, the subcommittee acknowledged that the House bill varied, in part, from the Florida Rule(s) of Criminal Procedure, and that our subcommittee was thus discharged with the responsibility to determine whether to propose a rule (or rules) consistent with or varying from that passed by the legislature. To do so, the subcommittee unanimously agreed that we would be most effective by determining whether the House bill presents clear conflicts with the current procedural rule(s) notably 3.172 and 3.853 and to resolve them promptly, given that our next full Committee meeting is rapidly approaching. The eradication of the time limit in rule 3.853, for example, was noted as one instance where our subcommittee should take immediate action. As to other issues raised by the House Bill perhaps not as pressing, the subcommittee discussed whether it might be more appropriate to make these referrals once the issues have indeed been identified to the appropriate substantive subcommittee(s) rather than to Fast Track them. Ms. Snurkowski moved that this subcommittee address the entirety of the House bill. Judge Cohen seconded Ms. Snurkowski s motion. A vote of the subcommittee was then had, with the following 6-2 result in favor of Fast Tracking this referral: Appendix C, page 1
Judge Bateman Yes Judge Cohen Yes Mr. Fingerhut Yes Ms. Finnell No Mr. Laeser No Ms. Snurkowski Yes Mr. Strain Yes Mr. Williams Yes In order to prepare for the work ahead, the subcommittee was then discharged to identify all relevant issues presented by the House bill and to e-mail the subcommittee members accordingly. Thereafter, if necessary, subcommittee members were to be assigned portions of the legislation to tend to by the subcommittee chair. The subcommittee agreed to next convene by teleconference on Tuesday, June 6, 2006, at noon, to continue work on this referral. Respectfully submitted, H. SCOTT FINGERHUT Chair, Fast Track Subcommittee HSF:bb c: Linda Francis Harrison, Secretary, Criminal Procedure Rules Committee Gerry Rose, Liaison, The Florida Bar Appendix C, page 2
THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE SUPPLEMENTAL SUBCOMMITTEE ACTION REPORT To: George Tragos, Chair, Criminal Procedure Rules Committee From: H. Scott Fingerhut, Chair, Fast Track Subcommittee Date: June 11, 2006 Referral No(s).: 06-06-FT Please be advised that the Fast Track Subcommittee conducted a meeting on Tuesday, June 6, 2006, by conference call, to continue discussion of a referral received from the Committee Chair regarding HB 61 unanimously passed by the Florida House on May 4, 2006, and which amends Fla. Stat. s. 925.11 (relating generally to the testing of DNA evidence), and creates Fla. Stat. s. 925.12 (in which the legislature expressly called upon the Florida Supreme Court to adopt rules of procedure for a court, prior to the acceptance of a plea, to make an inquiry into DNA-related matters). Subcommittee attendance was as follows: Present: The Honorable Thomas H. Bateman III, the Honorable Jay Paul Cohen, H. Scott Fingerhut, Subcommittee Chair, Ann Elizabeth Finnell, Abe Laeser, the Honorable Israel Reyes, and Peter Williams. Absent (and excused): The Honorable Olin Shinholser, Carolyn Snurkowski, and Robert Strain. Additional participants: Gerry Rose, Florida Bar Liaison, William C. Vose. Please note that four attachments are provided with this report: 1. House Bill 61; 2. The subcommittee s proposed amendments to Fla.R.Crim.P. 3.172; 3. Judge Bateman s separate proposal to create Fla.R.Crim.P. 3.172(e) in lieu of Rule 3.172(c)(10); and 4. The subcommittee s proposed amendments to Fla.R.Crim.P. 3.853. Also incorporated herein are the subcommittee s requests for referral of several issues to our substantive subcommittees. The subcommittee took the following action: Referral No. 06-06-FT 1. Unanimously agreed to amend rule 3.853(d)(1) to reflect the abolition of the DNA-testing deadline. 2. Unanimously agreed to delete subsections 3.853(d)(1)(a) and (d)(1)(b). 3. Recognized the potential internal inconsistency between Fla. Stat. ss. 925.11(2)(a)2. and 925.11(2)(a)3. with regard to the requisite content of DNA-testing motions i.e., whether a petitioner s Appendix C, page 3
having to establish that a DNA test result demonstrates s/he is not the person who committed the crime conflicts with a petition for DNA testing that, rather than exonerate, would merely mitigate the sentence received by the petitioner but nevertheless unanimously agreed to amend rule 3.853(b)(2) to incorporate the new criterion in s. 925.11(2)(a)2. Note: The subcommittee Chair hereby asks that the Committee Chair consider referring this issue to the appropriate substantive subcommittee(s) for further review. 4. Unanimously agreed to amend rule 3.853(c)(2) to provide that the court s initial review of motions for DNA testing goes to the facial sufficiency of the pleadings alone. 5. Unanimously agreed to create rule 3.172(c)(10) to reflect the additional plea colloquy trial courts must now accord defendants with regard to DNA evidence and potential DNA testing. Note: Following the subcommittee teleconference, Judge Bateman proposed alternate language, as well as an alternate placement therefore as rule 3.172(e) rather than part of the voluntariness inquiry in rule 3.172(c). The subcommittee Chair then asked for comment by the subcommittee members by e-mail, and received various feedback. Consequently, both versions of proposed new rule 3.172 are attached to this Supplemental Subcommittee Action Report for consideration by the full Committee. 6. Unanimously agreed to request that the Committee Chair refer the following issue to the appropriate substantive subcommittee(s) for further review: Whether the legislative intent regarding waiver of a defendant's right to speedy trial when the court postpones proceedings on the defendant s behalf under Fla. Stat. s. 925.12(2) as expressed in s. 925.12(4) warrants amending Fla.R.Crim.P. 3.191. 7. Unanimously agreed to request that the Committee Chair refer the following issue to the appropriate substantive subcommittee(s) for further review: The difference between the two statutes regarding the requisite content of petitions for DNA testing, pre- and post-july 1st, vis-a-vis what evidence was known and could have been ascertained, or disclosed by the state as contained in Fla. Stat. ss. 925.11(1)(a)2. and 925.12(1)(a) and (b), respectively. 8. Despite Para. 7 above, unanimously agreed it appropriate to now amend rule 3.853(a) to reflect the legislature s purpose in having created Fla. Stat. s. 925.12. 9. Unanimously agreed to request that the Committee Chair refer the following issue to the appropriate substantive subcommittee(s) for further review: Whether rule 3.853(c)(4) need be amended in light of the new procedures for determinations of indigency and the clerk s role rather than the court s therein. 10. Unanimously agreed to conform rule 3.853(b)(2) to Fla. Stat. s. 925.11(2)(a)2. regarding the following statutory language: a statement that evidence was not previously tested for DNA (the rule formerly read, not tested previously ). 11. Unanimously agreed to make various corrections of grammar and syntax to both rules 3.172 and 3.853, as reflected in the attachments. 12. Unanimously agreed that the following were not within the subcommittee's province to review: (a) The statutes now providing for DNA testing solely for those found guilty of felonies as opposed to mere crimes. (b) Clarifying whether a defendant need be under sentence (as opposed to what the statute provides, i.e., sentenced by a court ) in order to petition for DNA testing. Appendix C, page 4
(c) The new notice and timeliness provisions for preservation of evidence in non-death cases, as amended in Fla. Stat. s. 925.11(4)(b). This completes the subcommittee s work as to this referral. Respectfully submitted, H. SCOTT FINGERHUT Chair, Fast Track Subcommittee HSF:bb c: Linda Francis Harrison, Secretary, Criminal Procedure Rules Committee Gerry Rose, Liaison, The Florida Bar Appendix C, page 5
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, October 10, 2006, by conference call to discuss docket number 07-04-FT. Subcommittee attendance was as follows: Hon. Thomas H. Bateman III Hon. Jay Paul Cohen Douglas Duncan Present Not Present H. Scott Fingerhut Hon. Israel Umberto Reyes (excused) Frederick Schaub Robert T. Strain William C. Vose 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 concluded its work during this teleconference, as reflected below. Appendix C, page 6
3. Made the following decisions: Historical Background Earlier this year, in May and June 2006, the Fast Track Subcommittee worked diligently to rework Florida Rules of Criminal Procedure 3.172 and 3.853 in light of the legislature s passing House Bill 61, which amended Florida Statute s. 925.11 (relating generally to the testing of DNA evidence) and created Fla. Stat. s. 925.12 (expressly calling upon the Florida Supreme Court to adopt rules of procedure for a court prior to acceptance of a plea to make inquiry into DNA-related matters). In addition to amending Rules 3.172 and 3.853, the subcommittee also requested that several matters beyond Fast Track purview be referred to the appropriate substantive subcommittees for further analysis. 1 The Committee undertook this work of its own accord, after having submitted to the Court, in September 2005, a revision of Rule 3.853 to delete the time constraint for bringing post-conviction DNA innocence claims. In June, the subcommittee s recommendations were approved in toto by the full Committee at its meeting in Boca Raton. Subsequently, in September, in the course of preparing its report for the Court, the subcommittee modified slightly its proposed revision of Rule 3.172 to specifically incorporate an additional portion of section 925.12. But, before the Committee s report was filed, on September 21, 2006, the Court issued two orders. In the first, the Court amended Rule 3.853, solely to delete the deadline, just as we had proposed in September 2005. No further changes were made to the rule to incorporate the house bill. In the second order, the Court, on an emergency basis, and effective immediately, sua sponte amended Rules 3.172 and 3.170 (which neither the subcommittee nor the full Committee had previously addressed). Of particular note is Justice Anstead s special concurrence, in which he, joined by Justices Pariente and Quince, would require that the trial court actually make a finding as to the existence of DNA evidence during plea proceedings. 1 The issues submitted for substantive subcommittee review were as follows: (1) The significance, if any, of the potential internal inconsistency between Fla. Stat. ss. 925.11(2)(a)2. and 925.11(2)(a)3. with regard to the requisite content of DNA-testing motions i.e., whether a petitioner s having to establish that a DNA test result demonstrates s/he is not the person who committed the crime conflicts with a petition that, rather than exonerates, would merely mitigate the sentence received by the petitioner; (2) whether the legislative intent regarding waiver of a defendant s right to a speedy trial when the court postpones proceedings on the defendant s behalf under s. 925.12(2) as expressed in s. 925.12(4) warrants amending Florida Rule of Criminal Procedure 3.191 (Speedy Trial); (3) an analysis of the difference between the two statutes regarding the requisite content of petitions for DNA testing, pre- and post-july 1, 2006, vis-a-vis what evidence was known and could have been ascertained or disclosed by the state as contained in ss. 925.11(1)(a)2. and 925.12(1)(a) and (b), respectively; and (4) whether Rule 3.853(c)(4) must be amended in light of the new procedures for determinations of indigency and the clerk s role, rather than the court s, therein. Each of these referrals is pending still. Appendix C, page 7
The Court then asked expressly that we respond to its reworking of Rules 3.170 and 3.172; the Court has not asked that we comment any further on Rule 3.853. Rule 3.170 The Subcommittee s Decisions With regard to Rule 3.170 (Acceptance of Guilty or Nolo Contendere Plea), which the subcommittee did not previously address, the subcommittee unanimously agreed that the Court s proposed creation of subsection (k)(2) -- the DNA plea colloquy -- is unnecessary in light of the parallel proposed amendment of Rule 3.172 to create section (d) (see below), which is to be read in para materia. However, if the Court were to insist on an amendment to this rule, the subcommittee respectfully submits that its (Rule 3.172(d)) language, though substantially similar, is a bit clearer, and more closely conforms to the statutes addressed in the house bill. Rule 3.172 With regard to Rule 3.172, the subcommittee unanimously agreed to a construction that would insert the new statutory colloquy language as section (d) rather than as section (e), which the subcommittee had previously created 2 to conform to the Court s rule proposal. The subcommittee s version of section (d), an amalgam of sections 925.12(2) and 925.12(3), is as follows: Rule 3.172. Acceptance of Guilty or Nolo Contendere Plea (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 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 2 The subcommittee initially inserted the DNA plea colloquy provisos at subsection (c)(10) of the rule. Upon Judge Bateman s suggestion, though, the subcommittee later agreed that this material better belonged standing alone, and thus placed it in section (e) of Rule 3.172. Appendix C, page 8
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. 3 The subcommittee performed additional work on Rule 3.172 to suggest several corrections as to grammar and syntax, as reflected below: (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 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 3 Although section 925.12(3)(c) as contained in the house bill directed that the trial court must inquire of the defendant or counsel for the defendant and the state whether physical evidence containing DNA is known to exist that could exonerate the defendant, the subcommittee believes the word and, rather than or, is both clearer and wiser. Appendix C, page 9
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. (e) - (j), as re-lettered [No Change] CODING: Words stricken are deletions; words underlined are additions. With regard to the important concern raised by Justices Anstead, Pariente, and Quince, that trial courts should be required to make a finding as to the existence of DNA evidence during plea proceedings, the subcommittee was of the unanimous opinion that the requisite, detailed colloquy proposed at section (d) of the rule when properly put to the defendant, counsel for the defendant, and the state, would necessarily cause trial judges to reveal the same, and therefore that no additional explanatory language or direction is necessary. Rule 3.853 With regard to Rule 3.853, in that the Committee s rule draft addresses a host of post-house Bill 61 work, the subcommittee unanimously agreed to submit to the Court the revision of Rule 3.853 that the subcommittee previously completed, and which the full Committee previously approved. In order to do so, the subcommittee further agreed to incorporate its Rule 3.853 work into its comments as to Rules 3.170 and 3.172, with a motion to accept the same. 4 The Committee s previously approved Rule 3.853 proposed amendments are as follows: 1. To amend section (a) to reflect the legislature s purpose in having created Fla. Stat. s. 925.12; 2. To conform subsection(b)(2) to Fla. Stat. s. 925.11(2)(a)2. regarding the following statutory language: a statement that evidence was not previously tested for DNA (the rule formerly read, not tested previously... ); 3. To incorporate in subsection (b)(2) the new criterion in Fla. Stat. s. 925.11(a)2. that the 4 The Fast Track subcommittee also determined that the following matters were not within its province to review, leaving it up to the Committee Chair whether to make referrals thereupon to the appropriate substantive subcommittees: (1) That the statutes now provide for DNA testing solely for those found guilty of "felonies" as opposed to mere crimes (i.e., misdemeanors); (2) clarifying whether a defendant must be under sentence in order to petition for DNA testing (as opposed to what the statute provides, i.e., sentenced by a court ); and (3) the new notice and timeliness provisions for preservation of evidence in non-death cases, as amended in s. 925.11(4)(b). Appendix C, page 10
motion for postconviction DNA testing reflect that the petitioner is not the person who committed the crime (but see n. 1 supra, identifying the potential conflict with s. 925.11(2)(a)3. and the mere "mitigation" of sentence, and referring the matter to the appropriate substantive subcommittee); 4. To amend subsection (c)(2) to provide that the court s initial review of motions for DNA testing goes to the facial sufficiency of the pleadings alone; and 5. To suggest other corrections as to grammar and syntax. Rule 3.853 would therefore now read thusly, in full: 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 petitioner is not the person who committed the crime; (3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime; (4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received; (5) a statement of any other facts relevant to the motion; and (6) a certificate that a copy of the motion has been served on the prosecuting authority.(c) Procedure.(1) UpoOn receipt of the motion, the clerk of the court shall file it and deliver the court file to the assigned judge.(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) UpoOn 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) The court shall make the following findings when ruling on the motion: (A) Whether it has been shown that physical evidence that may contain DNA still exists. (B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing. (C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.(6) If the court orders DNA testing of the physical evidence, the cost of the testing may be assessed against the movant, unless the movant is indigent. If the movant is indigent, the state shall bear the cost of the DNA testing ordered by Appendix C, page 11
the court.(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) The results of the DNA testing ordered by the court shall be provided in writing to the court, the movant, and the prosecuting authority.(d) Time Limitations.(1) The motion for postconviction DNA testing must be filed: (A) Within 4 years following the date that the judgment and sentence in the case became final if no direct appeal was taken; within 4 years following the date the conviction was affirmed on direct appeal if an appeal was taken; within 4 years following the date collateral counsel was appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case in which the death penalty was imposed; or by October 1, 2005, whichever occurs later; or (B) At any time, if the facts on which the petition is predicated were unknown to the petitioner or the movant's attorney and could not have been ascertained by the exercise of due diligence.(2) 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) Rehearing. The movant may file a motion for rehearing of any order denying relief within 15 days after service of the order denying relief. The time for filing an appeal shall be tolled until an order on the motion for rehearing has been entered.(f) Appeal. An appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered. All orders denying relief must include a statement that the movant has the right to appeal within 30 days after the order denying relief is rendered.coding: Words stricken are deletions; words underlined are additions. 4. Prepared the attached written report. The Committee s comment as to Rules 3.170 and 3.172, due to the Court on or before November 20, 2006, is in the process of being drafted, along with the Committee's motion to accept comment as to Rule 3.853. The Subcommittee Chair is prepared to report to the full Committee at the meeting on Friday, January 19, 2007. Respectfully submitted, cc: Committee Chair // hsf H. SCOTT FINGERHUT Subcommittee Chair Appendix C, page 12
Committee Secretary The Florida Bar Liaison Appendix C, page 13