The Florida Bar’s Belated Criminal Appeals Joint Committee has submitted to the Florida Supreme Court an out-of-cycle report which included proposed amendments to Florida Rules of Criminal Procedure 3.850 and 3.851, and Florida Rules of Appellate Procedure 9.141 and 9.142. The Court invites all interested persons to comment on the amendments, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before December 15, 2009, with a certificate of service verifying that a copy has been served on the Criminal Procedure Rules Committee Chair, Fleur J. Lobree, 1350 NW 12th Ave., Room S-539, Miami, Florida, 33136-2102, the Appellate Court Rules Committee Chair, John G. Crabtree, 328 Crandon Blvd, Suite 225, Key Biscayne, FL 33149-1398, and the Criminal Court Steering Committee Chair, Judge O.H. Eaton, Jr., Seminole County Courthouse, 301 North Park Avenue, Sanford, Florida 32771-1243. A separate request for oral argument should also be filed if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Belated Criminal Appeals Joint Committee has until January 5, 2010, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.850 AND 3.851 AND FLORIDA RULES OF APPELLATE PROCEDURE 9.141 AND 9.142, CASE NO. SC09-1733


RULE 3.850. MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE

(a) [No change]

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that

(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the due diligence, or

(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or

(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.

(c) Contents of Motion. The motion shall be under oath and include:

(1)-(6) [No change]

This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. Motions shall be typewritten or hand-written in block letters in 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.

(d)-(f) [No change]

(g) Appeal; Rehearing; Service on Movant Parties. An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days of the rendition of the order. A petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner's motion for postconviction relief and counsel, through neglect, failed to do so. The movant may file a motion for rehearing of any order denying a motion under this rule within 15 days of the date of service of the order. The clerk of the court shall promptly serve on the movantparties a copy of any order denying a motion for postconviction relief or denying a motion for rehearing addressing a motion under this rule, noting thereon the date of service by an appropriate certificate of service.

(h) Rehearing. The party may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order. A timely filed motion for rehearing shall toll finality of any final order addressing a motion under this rule.

(i) Appeals. An appeal may be taken to the appropriate appellate court from a final order addressing a motion under this rule. All final orders addressing a motion under this rule shall include a statement that the party has the right to appeal within 30 days of the rendition of the final order. All nonfinal orders addressing motions under this rule shall include a statement that “this order is a nonfinal, nonappealable order.”

(j) Belated Appeals. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.141, a petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so.

(h)(k) Habeas Corpus. An application for writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicant’s detention.

(l) Frivolous or Malicious Collateral Criminal Pleadings or Motions. A prisoner, who is found by a court to have brought a frivolous or malicious collateral criminal proceeding, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The prisoner may also be prohibited from filing future pro se pleadings attacking his or her conviction and sentence.

Upon its own motion or on motion of a party, the court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith by issuing an order stating the essential facts constituting the frivolous or malicious nature of the collateral criminal proceeding, requiring the defendant to show cause why the prisoner should not be prevented from bringing further attacks on his or her conviction and sentence, and to explain why he or she is not abusing the legal process. The order shall allow a reasonable time for preparation and response by the prisoner, after service of the order on the prisoner. The court shall direct the clerk of the court to forward a certified copy of the order to show cause to the prisoner.

Upon receipt of the prisoner’s response to the order to show cause, if any, or upon expiration of the time allowed for the prisoner’s response the court shall determine whether the pleading or paper was a successive motion for postconviction relief that attempted to litigate an issue or issues that were, could, or should have been raised either on direct appeal or in a previous motion, was so readily recognizable as devoid of merit on the face of the record that there is little, if any prospect whatsoever that it can succeed, or was otherwise, frivolous, malicious, or non-meritorious. If supported by the record, the court shall enter an order with written findings that a motion for postconviction relief is repetitious, frivolous, malicious, or non-meritorious, preventing the prisoner from bringing further attacks on his or her conviction and sentence, directing the clerk of the court not to accept any further pro se filings or pleadings concerning the subject case, further directing the clerk of the court to summarily reject any further pleadings and papers regarding the case unless that pleading or paper is filed by a member in good standing of The Florida Bar, and that a certified copy of the order be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in Chapter 944, Florida Statutes. The prisoner shall also be served with a certified copy of the written order.


Committee Notes

1972 Amendment. [No change]

1977 Amendment. [No change]

1984 Amendment. [No change]

1992 Amendment. [No change]

1993 Commentary. [No change]

1996 Court Commentary. [No change]

2009 Amendment. Subdivision (h) states that “[t]he party may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order”; however, a motion for rehearing is not a prerequisite to pursuing an appeal.

Subdivision (i) recognizes that an appeal of an order denying or granting a rule 3.850 motion is civil in nature and therefore the State has thirty days to file a notice of appeal from the date that a final order was rendered. See State v. Lasley, 507 So.2d 711 (Fla. 2d DCA 1987). Subdivision (i) states that a party may appeal a final order. An order that summarily denies one or more postconviction claims but requires further proceedings (i.e., an answer from the state or an evidentiary hearing) on one or more remaining claims is not a final order. See Leger v. State, 818 So.2d 697, 697 (Fla. 5th DCA 2002) (“This is an appeal from a non-final order denying some of Leger’s grounds contained in his 3.850 motion, but scheduling an evidentiary hearing as to one ground. As such, the appeal is premature and unauthorized.”); Edler v. State, 673 So.2d 970, 971 (Fla. 1st DCA 1996) (“An order is not a final appealable order until it disposes of all the issues presented below.”). Similarly, an order that dismisses a postconviction motion without prejudice to refile a facially sufficient motion is a nonfinal order. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006) (holding dismissal without prejudice to refile a facially sufficient motion is a nonappealable, nonfinal order).


RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE HAS
BEEN IMPOSED AND AFFIRMED ON DIRECT APPEAL

(a)-(e) [No change]

(f) Procedure; Evidentiary Hearing; Disposition.

(1)-(7) [No change]

(8) Appeals. Any party may appeal a final order entered on a defendant’s motion for rule 3.851 relief by filing a notice of appeal with the clerk of the lower tribunal within 30 days of the rendition of the order to be reviewed. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142, a defendant may petition for a belated appeal upon the allegation that the defendant petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so.

(g)-(i) [No change]

(j) Belated Appeals. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142(d), a petitioner may seek a belated appeal upon
the allegation that the petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so.

9.141. Review Proceedings in Collateral or Post-
Conviction Criminal Cases; BELATED APPEALS;
Belated Discretionary Review; INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL

(a)-(b) [No change]

(c) Petitions Seeking Belated Appeal or Belated Discretionary Review or Alleging Ineffective Assistance of Appellate Counsel.

(1) Applicability. This subdivision governs petitions seeking belated appeals or belated discretionary review in an appellate court.

(1)(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

(2)(3) Forum. Petitions seeking belated appeal or alleging ineffective assistance of appellate counsel review shall be filed in the appellate court to which the appeal was or discretionary review should have been taken. Petitions seeking belated discretionary review or belated appeal of a decision of a district court of appeal shall be filed in the supreme court.

(3)(4) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts

(A)-(E) [No change]

(F) the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel or basis for entitlement to belated appeal or belated discretionary review., including in the case of a petition for belated appeal A petition seeking belated appeal must state whether the petitioner requested counsel to proceed with the appeal. and the date of any such request. A petition seeking belated discretionary review must state whether counsel advised the petitioner of the results of the appeal and the date of any such notification.

(4)(5) Time Limits.

(A) A petition for belated appeal or belated discretionary review shall not be filed more than 2 years after the expiration of time for filing the notice of appeal or notice to invoke discretionary jurisdiction from a final order, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware a notice of appeal or a notice to invoke discretionary jurisdiction had not been timely filed or was not advised of the right to an appeal or to seek discretionary review pro se;, and (ii) should could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated appeal be filed more than 4 years after the expiration of time for filing the notice of appeal.

(B) A petition alleging ineffective assistance of appellate counsel on direct review for belated discretionary review shall not be filed more than 2 years after the judgment and sentence become final on direct review expiration of time for filing the notice to invoke discretionary review from a final order, unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.unaware such notice had not been timely filed or was not advised of the results of the appeal, and that the petitioner could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated discretionary review be filed more than 4 years after the expiration of time for filing the notice to invoke discretionary review from a final order.

(C) Time periods under this subdivision shall not begin to run prior to January 1, 1997

(5)(6) Procedure.

(A) The petitioner shall serve copies a copy of the a petition for belated appeal on the attorney general and state attorney. The petitioner shall serve a copy of a petition for belated discretionary review on the attorney general.

(B)-(D) [No change]

(d) Petitions Alleging Ineffective Assistance of Appellate Counsel.

(1) Applicability. This subdivision governs petitions alleging ineffective assistance of appellate counsel.

(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

(3) Forum. Petitions alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was taken.

(4) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts:

(A) the date and nature of the lower tribunal's order subject to the disputed appeal;

(B) the name of the lower tribunal rendering the order;

(C) the nature, disposition, and dates of all previous court proceedings;

(D) if a previous petition was filed, the reason the claim in the present petition was not raised previously;

(E) the nature of the relief sought; and

(F) the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel.

(5) Time Limits. A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence becomes final on direct review.

(6) Procedure.

(A) The petitioner shall serve a copy of the petition on the attorney general.

(B) The court may by order identify any provision of this rule that the petition fails to satisfy and, pursuant to rule 9.040(d), allow the petitioner a specified time to serve an amended petition.

(C) The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure.


9.142. PROCEDURES FOR REVIEW IN DEATH PENALTY CASES

(a) Procedure in Death Penalty Appeals.

(1)-(4) [No change]

(5) Petitions for Extraordinary Relief. In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal's order on the defendant's application for relief under Florida Rule of Criminal Procedure 3.851.

(6) Scope of Review. On direct appeal inIn death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.

(b) Petitions for Extraordinary Relief.

(1) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

(2) Contents. Any petition filed pursuant to this subdivision shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts

(A) the date and nature of the lower tribunal’s order sought to be reviewed;

(B) the name of the lower tribunal rendering the order;

(C) the nature, disposition, and dates of all previous court proceedings;

(D) if a previous petition was filed, the reason the claim in the present petition was not raised previously;

(E) the nature of the relief sought.

(3) Petitions Seeking Belated Appeal.

(A) Contents. A petition for belated appeal shall include a detailed allegation of the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the basis for entitlement to belated appeal, including whether petitioner requested counsel to proceed with the appeal and the date of any such request.

(B) Time limits. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner

(i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and

(ii) could not have ascertained such facts by the exercise of due diligence.

In no case shall a petition for belated appeal be filed more than 2 years after the expiration of time for filing the notice of appeal.

(4) Petitions Alleging Ineffective Assistance of Appellate Counsel.

(A) Contents. A petition alleging ineffective assistance of appellate counsel shall include detailed allegations of the specific acts that constitute the alleged ineffective assistance of counsel on direct appeal.

(B) Time limits. A petition alleging ineffective assistance of appellate counsel shall be filed simultaneously with the initial brief in the appeal from the lower tribunal's order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851.

(b)(c) Petition Seeking Review of Nonfinal Orders in Death Penalty Postconviction Proceedings.

(1)-(11) [No change]

(c)(d) Review of Dismissal of Postconviction Proceedings and Discharge of Counsel in Florida Rule of Criminal Procedure 3.851(i) Cases.

(1)-(2) [No change]

(d) Petitions Seeking Belated Appeal. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner

(1) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and

(2) should not have ascertained such facts by the exercise of reasonable diligence.