In Re Amend. to Fla. Rules of Cr. Proc.

606 So.2d 227 (1992)

In re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.

No. 79615.

Supreme Court of Florida.

September 24, 1992.

Benjamin H. Hill, III, President, Tampa, Alan T. Dimond, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar, and Manuel Menendez, Jr., Chairman, Criminal Procedure Rules Committee, Tampa, for petitioner.

PER CURIAM.

The Florida Rules of Criminal Procedure Committee petitions this Court to approve its quadrennial report of proposed changes to the Florida Rules of Criminal Procedure. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution.

In its report, the rules committee proposes amendment to rules 3.010, 3.111, 3.125, 3.160, 3.190, 3.191, 3.200, 3.210, 3.211, 3.212, 3.213, 3.215, 3.216, 3.217, 3.219, 3.220, 3.390, 3.692 and form 3.989. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed amendments were submitted to The Board of Governors of The Florida Bar. The Board of Governors unanimously recommended approval. The proposed amendments were published for comment; however, no comments were filed.

At oral argument, it was pointed out that rule 3.692 and form 3.989, dealing with expungement, needed further amendment due to recent statutory amendments. It was also pointed out that the rules committee wished to submit amendments to rule 3.986, Forms Related to Judgment and Sentence. A supplemental petition containing the proposed amendments to rule 3.986 has since been filed. However, a supplemental petition containing the proposed amendments to rules 3.692 and 3.989 will not be filed until after October 1, 1992.

After reviewing the rules committee's report of proposed changes and the supplemental petition, and hearing oral argument on the matter, we approve the appended amendments to the Florida Rules of Criminal Procedure. The appended amendments include the following substantive changes as proposed by the rules committee as well as stylistic and editorial changes that are made to, among other things, ensure that the rules are gender neutral.

Rule 3.010, Scope, is amended to conform the wording of the rule to a prior order of this Court and provide consistency with other rules. Subdivision (e) of rule 3.111, Counsel to Indigents, is amended to specify the duties of defense counsel who wish to withdraw from representation after judgment and sentence. Rule 3.125, Notice to Appear, subdivisions (k), ( l ), (m) and rule 3.220, Discovery, subdivisions (b)(1), (b)(2), (c)(1), (h)(1) are amended to provide the same discovery to all individuals charged with criminal violations, regardless of the nature of the charging document. Specifically the amendments provide the same quantity of discovery to those charged by a notice to appear.

The amendment to rule 3.212(c)(5)(ii) substitutes "shall" for "may" so as to require the trial court to order the administrator of the facility where an incompetent defendant has been committed to report to the court on the issues of competency when the court has reasonable grounds to believe the defendant may have regained competency to proceed or no longer meets the criteria for commitment. Subdivision (g) of rule 3.350, Peremptory Challenges, is amended to clarify that it is within a trial court's discretion to allow additional peremptory challenges. Subdivision (d) of rule 3.390, Jury Instructions, is amended to clarify its provisions. Rule 3.986, Forms Related to Judgment and Sentence, is amended to conform with various provisions of Florida Statutes. The Form for Judgment is amended to add a signature line required by section 921.241, Florida Statutes (1991). The Form for Charges, Costs, and Fees is *228 amended to increase the amount to be paid into the Crimes Compensation Trust Fund as required by chapter 92-107, Laws of Florida. The Form for Sentencing is amended to add a checkoff paragraph imposing mandatory minimum sentence for violation of section 775.0875, Florida Statutes (1991). Rule 3.692, Petition to Seal or Expunge, and form 3.989, Petition and Order to Expunge or Seal and Affidavit, will be amended at a later date.

New language is indicated by underscoring; deletions are indicated by struckthrough type. The committee notes are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 1993 at 12:01 a.m.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

APPENDIX I

I. SCOPE, PURPOSE, AND CONSTRUCTION

RULE 3.010. SCOPE

These rules shall govern the procedure in all criminal proceedings in Sstate courts including proceedings involving direct and indirect criminal contempt, including proceedings under Rrule 3.850 hereof, and including vehicular and pedestrian traffic offenses insofar as these Rrules are made applicable by the Florida Rules of Practice and Procedure for Traffic Courts. These Rrules shall not apply to direct or indirect criminal contempt of a court acting in any appellate capacity. These Rrules shall not apply to Rrules 3.811 and 3.812 hereof. These Rrules may be cited shall be known as the Florida Rules of Criminal Procedure and abbreviatedmay be cited as Fla. R. Crim.P.

Committee Notes

1968 Adoption. These rules are not intended to apply to municipal courts, but are intended to apply to all state courts where "crimes" are charged.

1972 Amendment. Amended to provide for applicability of Rrules to Vvehicular Ttraffic Ooffenses, when made so by the Ttraffic Ccourt Rrules.

1992 Amendment. The rule is amended to refer to "Florida Rules of Criminal Procedure" and "Fla.R.Crim.P." rather than to "Rules of Criminal Procedure" and "R.Crim.P." Although the Florida Bar Rules of Criminal Procedure already contains this language, the West publications, Florida Rules of Court (1991) and Florida Criminal Law and Rules (1991), do not. The published version of rule 3.010, In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1973), and the single published amendment to the rule, In re Amendments to the Florida Rules of Criminal Procedure, 518 So.2d 256 (Fla. 1987), also do not contain these additions. The Florida Bar publication, Florida Criminal Rules and Practice, in a commentary to rule 3.010, indicates that the Florida Supreme Court changed the citation form in an order effective January 1, 1977. The commentary indicates that the order stated in pertinent part:

In order to provide the clarity of citations in briefs filed in this court and other legal writings, the following amendments to the procedural rules adopted by this court pursuant to Article V, Section 2(a), of the Florida Constitution are hereby adopted.

* * *

The last sentence of Rule 3.010 of the Florida Rules of Criminal Procedure is amended as follows: "These Rules shall be known may be cited as the Florida Rules of Criminal Procedure and may be cited abbreviated as R.Crim. P.Fla.R.Crim.P."

However, these changes were apparently inadvertently omitted when the 1987 amendments were published. The proposed 1992 amendments again incorporate into the rule the language set out in the court's 1977 order.

The amendments would enable clearer identification of the rules and achieve consistency of style with other sets of court rules, in particular, rule 9.800(i), Fla.R.App. *229 P., which provides that the proper citation to the Florida Rules of Criminal Procedure is Fla.R.Crim.P.

II. GENERAL PROVISIONS

RULE 3.030. SERVICE OF PLEADINGS AND PAPERS

(a) Service; When Required. Every pleading subsequent to the initial indictment or information upon which a defendant is to be tried unless the court otherwise orders, and every order not entered in open court, every written motion unless it is one as to which a hearing ex parte is authorized, and every written notice, demand, and similar paper shall be served on each party; however, nothing herein shall be construed to require that a plea of not guilty shall be in writing.

(b) Same; How Made. Where When under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to himthe party or by mailing it to him at his the party's last known address, or, if no address is known, by leaving it with the clerk of the court who shall place it in the court file. Delivery of a copy within this rule shall mean:

(1) handing it to the attorney or to the party; or,

(2) leaving it at his the attorney's office with his the secretary or other person in charge thereof; or,

(3) if there is no one in charge, leaving it in a conspicuous place therein; or,

(4) if the office is closed or the person to be served has no office, leaving it at histhe person's usual place of abode with some person of hisa family member above fifteen 15 years of age and informing suchthat person of the contents thereof. Service by mail shall be deemed complete upon mailing.

(c) Filing. All original papers, copies of which are required to be served upon parties, must be filed with the court either before service or immediately thereafter.

(d) Filing Wwith the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him or her, in which event hethe judge shall note thereon the filing date and transmit them to the office of the clerk.

(e) Certificate of Service. When any attorney shall in substance certify:

"I do certify that a copy (copies) hereof (has) (have) been furnished to (here insert name or names) by (delivery) (mail) this ____ day of ___________, 19__. __________

Attorney"

the certificate shall be taken as prima facie proof of such service in compliance with all rules of court and law.

Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Amendment. Same as prior rule; (a) amended by deleting reference to trial on affidavit.

RULE 3.040. COMPUTATION OF TIME

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run until the end of the next day whichthat is neither a Saturday, Sunday, nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation, except for the periods of time of less than 7 days contained in Rrules 3.130, 3.132(a) and (c), and 3.133(a).

*230 Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Adoption Amendment. Same as prior rule.

1988 Amendment. The 1983 amendments resulted in the reallocation of the time periods in Rrule 3.131 to Rrule 3.133, and also added an important 5-day period in the new rule regarding pretrial detention in Rrule 3.132.

Court Commentary

1975 Amendment. Underlined portion is the only change. The effect is to remove the 72-hour provision of proposed rule 3.131 from the Saturday, Sunday, and legal holiday exception.

RULE 3.050. ENLARGEMENT OF TIME

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, permit the act to be done wherewhen the failure to act was the result of excusable neglect; but it may not, except as provided by statute or elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal.

Committee Notes

1968 Adoption. Taken from the Florida Rules of Civil Procedure.

1972 Amendment. Same as prior rule.

RULE 3.070. ADDITIONAL TIME AFTER SERVICE BY MAIL

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon himon the party and the notice or paper is served upon himon the party by mail, 3 days shall be added to the prescribed period.

Committee Notes

1968 Adoption. This is the same as rule 1.6(e), Florida Rules of Civil Procedure, except for the omission of subdivision (c) of the civil rules, which appears to be inapplicable to criminal cases.

1972 Amendment. Same as prior rule.

RULE 3.111. PROVIDING COUNSEL TO INDIGENTS

(a) When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel appointed when hethe person is formally charged with an offense, or as soon as feasible after custodial restraint, or upon hisat the first appearance before a committing magistrate, whichever occurs earliest.

(b) Cases Applicable.

(1) Counsel shall be provided to indigent persons in all prosecutions for offenses punishable by imprisonment (or by incarceration in a juvenile corrections institution) including appeals from the conviction thereof. Counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or violation of a municipal ordinance if the judge, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned in the event he isif convicted.

(2) Counsel may be provided to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including postconviction proceedings and appeals therefrom, extradition proceedings, mental competency proceedings, and other proceedings whichthat are adversary in nature, regardless of the designation of the court in which they occur or the classification of the proceedings as civil or criminal.

(3) Counsel may be provided to a partially indigent person upon his request provided that the person shall defray that portion of the cost of such representation and the reasonable costs of investigation as he or she is able to without substantial hardship to himselfthe person or histhe person's family, as directed by the court.

*231 (4) "Indigent" as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himselfthe person or histhe person's family; "partially indigent" as used herein shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to himselfthe person or histhe person's family.

(5) The court shall, prior to appointing a public defender,:

(i)(A) Iinform the accused that if the public defender is appointed, a lien for the services rendered by the public defender may be imposed pursuant to under section 27.56, Florida Statutes (1979);

(ii)(B) Mmake inquiry into the financial status of the accused in a manner not inconsistent with the guidelines established by section 27.52, Florida Statutes (1979). The accused shall respond to the inquiry under oath;

(iii)(C) Rrequire the accused to execute an affidavit of insolvency in the format provided by section 27.52, Florida Statutes (1979).

(c) Duty of Booking Officer. In addition to any other duty, the officer who commits a defendant to custody has the following duties:

(1) HeThe officer shall immediately advise the defendant:

(i)(A) of histhe right to counsel;

(ii)(B) that if the defendant is unable to pay a lawyer, one will be provided immediately at no charge.

(2) If the defendant requests counsel or advises the officer he or she cannot afford counsel, saidthe officer shall immediately and effectively place saidthe defendant in communication with the (office of) Ppublic Ddefender of the circuit in which the arrest was made.

(3) If the defendant indicates he or she has an attorney or is able to retain an attorney, the officer shall immediately and effectively place saidthe defendant in communication with histhe attorney or the Lawyer Referral Service of the local bar association.

(4) The Ppublic Ddefender of each Jjudicial Ccircuit may upon beinginterview a defendant when contacted by, or on behalf of, a defendant who is, or represents himselfclaims to be, indigent as defined by law, forthwith interview said defendant and.

(i)(A) If the defendant is in custody and reasonably appears to be indigent, the Ppublic Ddefender shall tender to him such advice as is indicated by the facts of the case;, seek the setting of a reasonable bail, and otherwise represent suchthe defendant pending a formal judicial determination of indigency.

(ii)(B) If the defendant is at liberty on bail or otherwise not in custody, the Ppublic Ddefender shall elicit only such information from the defendant as may be reasonably relevant to the question of indigency and shall immediately seek a formal judicial determination of indigency. If the court finds the defendant indigent, it shall immediately appoint counsel to represent saidthe defendant.

(d) Waiver of Counsel.

(1) The failure of a defendant to request appointment of counsel or histhe announced intention of a defendant to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and histhe accused's capacity to make that choicean intelligently and understandingly has been madewaiver.

(3) No waiver shall be accepted whereif it appears that the defendant is unable to make an intelligent and understanding choice because of hisa mental condition, age, education, experience, the nature or complexity of the case, or other factors.

(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than *232 two2 attesting witnesses. SaidThe witnesses shall attest the voluntary execution thereof.

(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

(e) Withdrawal of Defense Counsel After Judgment and Sentence. Withdrawal of defense counsel after judgment and sentence is governed by Florida Rule of Appellate Procedure 9.140(b)(3). The attorney of record for a defendant in a criminal proceeding shall not be relieved of any duties, nor be permitted to withdraw as counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until after:

(1) the filing of:

(A) a notice of appeal;

(B) a statement of judicial acts to be reviewed, if a transcript will require the expenditure of public funds;

(C) directions to the clerk, if necessary; and

(D) a designation of that portion of the reporter's transcript that supports the statement of judicial acts to be reviewed, if a transcript will require expenditure of public funds; or

(2) the time has expired for filing of a notice of appeal, and no such notice has been filed.

Committee Notes

1972 Adoption. Part 1 of the ABA Standard relating to Pproviding Ddefense Sservices deals with the general philosophy for providing criminal defense services and while the committee felt that the philosophy should apply to the Florida Rules of Criminal Procedure, the standards were not in such form to be the subject of that particular rule. Since the standards deal with the national situation, contained in them were alternative methods of providing defense services, i.e.i.e., assigned counsel vs. defender system; but, Florida, already having a defender system, need not be concerned with the assigned counsel system.

(a) Taken from the first sentence of ABA Standard 5.1. There was considerable discussion within the committee concerning the time when within which counsel should be appointed and who should notify defendant's counsel. The commentary in the ABA Standard under 5.1a, b, convinced the committee to adopt the language here contained.

(b) Standard 4.1 provides that counsel should be provided in all criminal cases punishable by loss of liberty, except those types where such punishment is not likely to be imposed. The committee determined that the philosophy of such Sstandard should be recommended to the Florida Supreme Court. The committee determined that possible deprivation of liberty for any period makes a case serious enough that the accused should have the right to counsel.

(c) Based upon the recommendation of ABA Standard 5.1b and the commentary thereunder which provides that implementation of a rule for providing the defendant with counsel should not be limited to providing a means for the accused himself to contact a lawyer.

(d) From Sstandard 7.2 and the commentaries thereunder.

1980 Amendment. Modification of the existing Rrule (the addition of (b)(5)(A)-(C)) provides a greater degree of uniformity in appointing counsel to indigent defendants. The defendant is put on notice of the lien for public defender services and must give financial information under oath.

A survey of Florida judicial circuits by the Committee on Representation of Indigents of the Criminal Law Section (1978-79) disclosed the fact that several circuits had no procedure for determining indigency and that there were circuits in which no affidavits of insolvency were executed (and no legal basis for establishing or collecting lien monies).

1992 Amendment. In light of State v. District Court of Appeal of Florida, First *233 District, 569 So.2d 439 (Fla. 1990), in which the supreme court pronounced that motions seeking belated direct appeal based on ineffective assistance of counsel should be filed in the trial court pursuant to rule 3.850, the committee recommends that rule 3.111(e) be amended to detail with specificity defense counsel's duties to perfect an appeal prior to withdrawing after judgment and sentence. The present provision merely notes that such withdrawal is governed by Florida Rule of Appellate Procedure 9.140(b)(3).

RULE 3.115. DUTIES OF STATE ATTORNEY; CRIMINAL INTAKE

The state attorney shall provide the personnel or procedure for criminal intake in the judicial system. All sworn complaints charging the commission of a criminal offense shall be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceedings. This rule shall take effect at 11:59 p.m., Eastern Standard Time, January 1, 1973.

III. PRELIMINARY PROCEEDINGS

RULE 3.120. COMMITTING MAGISTRATE

Each state and county judge is a committing magistrate and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when the complaint states facts whichthat show that such person violated a criminal law of this Sstate within the jurisdiction of the magistrate to whom the complaint is presented. The magistrate may take testimony under oath to determine if there is reasonable ground to believe the complaint is true. The magistrate may commit the offender to jail, may order the defendant to appear before the proper court to answer the charge in the complaint, or may discharge himthe defendant from custody or from any undertaking to appear. The magistrate may authorize the clerk to issue a summons.

Committee Notes

1968 Adoption. This is substantially the same as part of section 901.01, Florida Statutes. (The remaining part should be retained as a statute.) It differs from the statute by requiring the complaint to be in writing and by identifying the initiating instrument as a "complaint," thus adopting the federal terminology which is more meaningful and modern. Some doubt was expressed as to whether the terms of the statute incorporated in the rule are within the rulemaking power of the Supreme Court.

1972 RevisionAmendment. Substantially same as former rule. Altered to incorporate the provision for testimony under oath formerly contained in Rrule 3.121(a), and authorizes the execution of the affidavit before a notary or other persons authorized to administer oaths.

RULE 3.121. ARREST WARRANT

(a) Issuance. An arrest warrant, when issued, shall:

(1) Bbe in writing and in the name of the State of Florida;

(2) Sset forth substantially the nature of the offense;

(3) Ccommand that the person against whom the complaint was made be arrested and brought before a magistrate;

(4) Sspecify the name of the person to be arrested or, if histhe name is unknown to the magistrate, designate suchthe person by any name or description by which hethe person can be identified with reasonable certainty;

(5) Sstate the date when issued and the Ccounty where issued;

(6) Bbe signed by the magistrate with the title of histhe office; and

(7) Iin all offenses bailable as of right be endorsed with the amount of bail and the return date.

(b) Amendment. No arrest warrant shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but, the warrant may be amended by the magistrate to remedy such defect.

*234 Committee Notes

1968 Adoption. (a) This is substantially the same as section 901.02, Florida Statutes, except that the rule requires a written complaint. Also, the rule does not incorporate that seldom used part of the statute that permits the magistrate to issue an arrest warrant upon affidavits made before the prosecuting attorney.

(b) This is the same as section 901.03, Florida Statutes.

(c) This is the same as section 901.05, Florida Statutes, except for modernizing the language.

1972 RevisionAmendment. (a) of * * * [former] rule has been deleted, as its substance is now contained in Rrules 3.120 and 3.130; (b) has been renumbered as (a); (c) has been renumbered as (b).

RULE 3.125. NOTICE TO APPEAR

(a) Definition. Notice to appear means, unless indicated otherwise, a written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.

(b) By Arresting Officer. If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county, and demand to be taken before a magistrate is not made, notice to appear may be issued by the arresting officer unless:

(1) Tthe accused fails or refuses to sufficiently identify himself or herself or supply the required information;

(2) Tthe accused refuses to sign the notice to appear;

(3) Tthe officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to himselfthe accused or others;

(4) Tthe accused has no ties with the jurisdiction reasonably sufficient to assure histhe accused's appearance or there is substantial risk that hethe accused will refuse to respond to the notice;

(5) Tthe officer has any suspicion that the accused may be wanted in any jurisdiction; or

(6) Iit appears that the accused has previously failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

(c) By Booking Officer. If the arresting officer does not issue notice to appear because of one of the exceptions listed in (b)(1) andthrough (b)(6) and takes the accused to police headquarters, the booking officer may issue notice to appear if hethe officer determines that there is a likelihood that the accused will appear as directed, based upon a reasonable investigation of: the following:

(1) Rresidence and length of residence in the community;

(2) Ffamily ties in the community;

(3) Eemployment record;

(4) Ccharacter and mental condition;

(5) Ppast record of convictions; or

(6) Ppast history of appearance at court proceedings.

(d) How and When Served. If notice to appear is issued it shall be prepared in quadruplicate. The officer shall deliver one1 copy of the notice to appear to the arrested person and suchthe person, in order to secure release, shall give hisa written promise to appear in court by signing the three3 remaining copies: one1 to be retained by the officer and two2 to be filed with the clerk of the court. These two2 copies shall be sworn to by the arresting officer before a Nnotary Ppublic or a Ddeputy Cclerk. If notice to appear is issued pursuant to subsectionsubdivision (b), the notice shall be issued immediately upon arrest. If notice to appear is issued pursuant to subsectionsubdivision (c), the notice shall be issued immediately upon completion *235 of the investigation. The arresting officer, or other duly authorized official, shall then release the person arrested from custody.

(e) Copy to the Clerk of the Court. With the sworn Nnotice to Aappear the arresting officer shall file with the clerk a list of witnesses and their addresses, and a list of tangible evidence in the cause. One copy shall be retained by the officer and two2 copies shall be filed with the clerk of the court.

(f) Copy to State Attorney. The clerk shall deliver one1 copy of the notice to appear and schedule of witnesses and evidence filed therewith to the Sstate Aattorney.

(g) Contents. If notice to appear is issued it shall contain the following information:

(1) Nname and address of the accused;

(2) Ddate of offense;

(3) Ooffense(s) charged — by statute and municipal ordinance if applicable;

(4) Ccounts of each offense;

(5) Ttime and place wherethat the accused is to appear in court;

(6) Nname and address of the trial court having jurisdiction to try the offense(s) charged;

(7) Nname of the arresting officer;

(8) name(s) of Aany other person(s) charged at the same time; and

(9) Ssignature of the accused.

(h) Failure to Appear. WhenIf a person signs a written notice to appear and fails to respond to the notice to appear, a warrant of arrest shall be issued pursuant to Rrule 3.121.

(i) Traffic Violations Excluded. Nothing contained herein shall prevent the operation of a traffic violations bureau, the issuance of citations for traffic violations, or any procedure pursuant to Cchapter 316, Florida Statutes (1975).

(j) Rules and Regulations. Rules and regulations of procedure governing the exercise of authority to issue notices to appear shall be established by the chief judge of the circuit.

(k) Discovery by Defendant. Upon demand of the defendant or his counsel the clerk shall furnish to defendant a copy of that Schedule of Witnesses and Exhibits filed with the Notice to Appear.

Defendant's right to further discovery in prosecutions by Notice to Appear shall be limited to names and addresses of witnesses and tangible evidence in possession or control of the prosecutor which are not contained in that schedule.

( l )(k) Procedure by Court. Upon the appearance of the accused before the court pursuant to the requirements of the Nnotice to Aappear, the Ccourt shall advise the defendant as set forth in Rrule 3.130(b), and the provisions of saidthat rule shall apply. The accused at such appearance may at his electionelect to waive histhe right to counsel and trial and enter hisa plea of guilty or nolo contendere by executing the waiver form contained on the Nnotice to Aappear, and the Ccourt may there-upon enter judgment and sentence in the cause.

In the event the defendant enters a plea of not guilty, the court may set the cause for jury or nonjury trial upon the Nnotice to Aappear pursuant to the provisions of Rrules 3.140 and 3.160 and Rule 3.140, as amended. Upon the setting of a trial date by the Ccourt, the Cclerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the Nnotice to Aappear, and to the witnesses whose names and addresses appear on the list filed by himthe officer, requiring their attendance at trial.

(m)( l ) Form of Notice to Appear and Schedule of Witnesses and Evidence. The Nnotice to Aappear and Sschedule of Wwitnesses and Eevidence shall be in substantially the following form:

*236

IN THE COUNTY COURT,

IN AND FOR ______ COUNTY, FLORIDA

NOTICE TO APPEAR

___________________________________

Agency Case #

STATE OF FLORIDA, COUNTY OF __________

In the name of _________ County, Florida: The undersigned certifies that he

or she has just and reasonable grounds to believe, and does believe,

that:

On the __________________ day of ________________, 19__, at _______________

()A.M. a.m. ()P.M. p.m.

________________________ ____________ _____________ _______________________

Last Name First M.I. Aliases

_____________________________________ ___________________________________

Street — City and State Date and Place of Birth

____________ ________ _______ _______ _____ _____ __________________

Phone Race/Sex Height Weight Hair Eyes Scars/Marks

________________ ____________________ ________________________________

Occupation Place of Employment Employment Phone

________________ __________________ ___________ ___________________

Complexion Driver's License # Yr./St. Social Security #

at (location) _____________________________________________________________

in ___________ County, Florida, committed the following offense(s):

(1) ______________________________ (2) ___________________________________

() State Statute

in violation of section(s): _____________: ____________ () Municipal Ord.

DID (Narrative): __________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

_________________________________ _________________ _____________________

Name of Officer ID Agency

[] Mandatory appearance in court, ________________________________________

Location

________________________, 19__, at ________________ ()A.M. a.m. ()P.M. p.m.

Month Day

[] You need not appear in court, but must comply with instructions on back.

CO-DEFENDANTS:

[] Cited

1. _____________________________________________________________ [] Jailed

Name DOB Address

[] Cited

2. _____________________________________________________________ [] Jailed

Name DOB Address

I AGREE TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE TO ANSWER THE OFFENSE CHARGED OR TO PAY THE FINE SUBSCRIBED. I UNDERSTAND THAT SHOULD I WILLFULLY FAIL TO APPEAR BEFORE THE COURT AS REQUIRED BY THIS NOTICE TO APPEAR, THAT I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST SHALL BE ISSUED.

*237

___________________________________

Signature of Defendant

I swear the above and reverse and attached statements are true and

correct to the best of my knowledge and belief.

___________________________________

Complainant

___________________________________

Agency or Department

Sworn to and subscribed before me this _______ day of _______, 19__.

___________________________________

Notary Public, State of Florida

WAIVER INFORMATION

If you desire to plead guilty or nolo contendere (no contest) and you need not appear in court as indicated on the face of this notice, you may present this notice at the county court named on the reverse of this page.

From _________________, _______________ to __________________, ___________

Date Hour Date Hour

and pay a fine of ______ dollars in cash, money order, or certified check.

The waiver below must be completed and attached. Read carefully.

Your failure to answer this summons in the manner subscribed will result in a warrant being issued on a separate and additional charge.

"In consideration of my not appearing in court, I the undersigned, do hereby enter my appearance on the affidavit for the offense charged on the other side of this notice and waive the reading of the affidavit in the above named cause and the right to be present at the trial of said action. I hereby enter my plea of Guilty [] or Nolo Contendere [], and waive my right to prosecute appeal or error proceedings.

"I understand the nature of the charge against me; I understand my right to have counsel and waive this right and the right to a continuance. I waive my right to trial before a judge or jury. I plead Guilty [] or Nolo Contendere [] to the charge, being fully aware that my signature to this plea will have the same effect as a judgment of this Ccourt."

Total Fine and Cost _______________________________________________________

Defendant Signature _______________________________________________________

Address ___________________________________________________________________

___________________________________________________________________________

IN THE COUNTY COURT,

IN AND FOR ______ COUNTY, FLORIDA

SCHEDULE OF WITNESSES AND

EVIDENCE FOR NOTICE TO APPEAR.

___________________________________

Agency Case #

___________________________________________________________________________

Last Name First M.I. Aliases

___________________________________________________________________________

Address

____________________________________________ Offense(s): (1) ______________

Date of Notice to Appear (2) ______________

*238

TANGIBLE EVIDENCE: (If none, write "None")

Item: ___________________________________________________________________

Obtained from (Pperson and/or Pplace): __________________________________

first received by: _____________________________ given to: ______________

WITNESSES: (If none, write "None")

# 1 Name: _________________________________________________________________

Res. Tel. No. _________________________ Address: __________________________

Bus. Tel. No. _________________________ Business: _________________________

Testimony: ________________________________________________________________

___________________________________________________________________________

# 2 Name: _________________________________________________________________

Res. Tel. No. _________________________ Address: __________________________

Bus. Tel. No. _________________________ Business: _________________________

Testimony: ________________________________________________________________

___________________________________________________________________________

# 3 Name: _________________________________________________________________

Res. Tel. No. _________________________ Address: __________________________

Bus. Tel. No. _________________________ Business: _________________________

Testimony: ________________________________________________________________

___________________________________________________________________________

I certify that the foregoing is a complete list of witnesses and evidence

known to me.

___________________________________

Investigating Officer

___________________________________

Agency

Committee Notes

1992 Amendment. The amendment deletes subdivision (k) and reletters subdivisions ( l ) and (m). The elimination of subdivision (k) will entitle individuals charged with criminal violations to the same discovery, without regard to the nature of the charging instrument. As amended, persons charged by way of a notice to appear can obtain the same discovery as persons charged by way of either an information or an indictment. In this regard the committee also has proposed amendments to rule 3.220(b)(1), (b)(2), (c)(1), and (h)(1) to change the reference from "indictment or information" to "charging document."

RULE 3.130. FIRST APPEARANCE

(a) Prompt First Appearance. Except when previously released in a lawful manner, every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest. In the case of a child in the custody of juvenile authorities, against whom an information or indictment has been filed, the child shall be taken for a first appearance hearing within 24 hours of the filing of the information or indictment. The chief judge of the circuit for each county within the circuit shall designate one1 or more judicial officers from the circuit court, or county court, to be available for the first appearance and proceedings.

(b) Advice to Defendant. UponAt the defendant's first appearance the magistrate shall immediately inform himthe defendant of the charge and provide himthe defendant with a copy of the complaint. *239 The magistrate shall also adequately advise the defendant as followsthat:

(1) That hethe defendant is not required to say anything, and that anything hethe defendant says may be used against him. or her;

(2) Iif he is as yet unrepresented, that hethe defendant has a right to counsel, and, if he is financially unable to afford counsel, that counsel forthwith will be appointed.; and

(3) That hethe defendant has a right to communicate with his counsel, his family, or his friends, and that, if necessary, reasonable means will be provided to enable himreasonable means to do so.

(c) Counsel for Defendant.

(1) Appointed Counsel. WhereIf practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether hethe defendant desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, hethe magistrate shall immediately appoint counsel. This determination must be made and, whereif required, counsel appointed no later than the time of the first appearance, and prior tobefore any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate.

(2) Retained Counsel. Where When the defendant has employed, counsel or is financially able and desires to employ, counsel to represent him or her at first appearance, the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the first appearance hearing for suchthat purpose. The magistrate shall also, upon request of the defendant, require an officer to communicate a message to such counsel as the defendant may name. The officer shall, with diligence, and without cost to the defendant if the counsel is within the county, perform the duty. If the postponement will likely result in the continued incarceration of the defendant beyond a 24-hour period, at the request of the defendant the magistrate may appoint counsel to represent the defendant for the first appearance hearing.

(3) Opportunity to Confer. No further steps in the proceedings should be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.

(4) Waiver of Counsel. The defendant may waive histhe right to counsel at first appearance. and if he does so, such The waiver, containing an explanation of histhe right to counsel, shall be in writing and signed and dated by the defendant. This written waiver of counsel shall, in addition, contain a statement that it is limited to first appearance only and shall in no way be construed to be a waiver of counsel for subsequent proceedings.

(d) Pretrial Release. The judicial officer shall proceed to determine conditions of release pursuant to Rrule 3.131.

Committee Notes

1972 Revision Amendment. Same as prior rule except (b), which is new.

RULE 3.131. PRETRIAL RELEASE

(a) Right to Pretrial Release. 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, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

(b) Hearing at First Appearance — Conditions of Release.

(1) Unless the Sstate has filed a motion for pretrial detention pursuant to Rrule 3.132, the court shall conduct a hearing to determine pretrial release. For the purpose of this rule, bail is defined as any of *240 the forms of release stated below. There is a presumption in favor of release on nonmonetary nonmonetary conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following conditions of release which that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions:

(i)(A) Ppersonal recognizance of the defendant;

(ii)(B) Eexecution of an unsecured appearance bond in an amount specified by the judge;

(iii)(C) Placingplacement of restrictions on the travel, association, or place of abode of the defendant during the period of release;

(iv)(D) Placingplacement of the defendant in the custody of a designated person or organization agreeing to supervise him the defendant;

(v)(E) Requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy said the bail by providing an appearance bond.; or

(vi)(F) Imposing any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) The judge shall at the defendant's first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant's appearance. If a monetary bail is required, then the judge shall determine the amount.

(3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law,; the weight of the evidence against the defendant,; the defendant's family ties, length of residence in the community, employment history, financial resources, and mental condition; the defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings,; the nature and probability of danger which that the defendant's release poses to the community,; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding, or is on probation, parole, or other release pending completion of sentence,; and any other facts the court considers relevant.

(4) All information provided by a defendant in connection with any application for or attempt to secure bail, to any court, court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete, without omissions, to the best knowledge of the defendant. Failure to comply with the provisions of this subsection subdivision may result in the revocation or modification of bail. However, no defendant shall be compelled to provide information regarding his or her criminal record.

(5) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence.

(c) Consequences of Failure to Appear.

(1) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Ssection 903.26, of the Florida Statutes, and who voluntarily appears or surrenders, shall not be eligible for a recognizance bond.

(2) Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Ssection 903.26, of the Florida Statutes, and who is arrested at *241 any time following forfeiture, shall not be eligible for a recognizance bond or any form of bond which that does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater.

(d) Subsequent Application for Setting or Modification of Bail.

(1) When a judicial officer not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try the defendant, and bail has been denied or sought to be modified, application by motion may be made to the court having jurisdiction to try the defendant, or, in the absence of the judge of said the trial court, to the circuit court. Such The motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless such the judge either:

(i)(A) Iimposed the conditions of bail or set the amount of bond required; or

(ii)(B) Iis the chief judge of the circuit in which the defendant is to be tried; or

(iii)(C) Hhas been assigned to preside over the criminal trial of the defendant; or

(iv)(D) Iis the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release.

(2) Applications by the defendant for modification of bail on any felony charge must be heard by a court in person at a hearing, with the defendant present and with at least three(3) hours' notice to the state attorney and county attorney, if bond forfeiture proceedings are handled by the county attorney. The state may apply for modification of bail by showing good cause and with at least three(3) hours' notice to the attorney for the defendant.

(3) In the eventIf any trial court fixes bail and refuses its reduction before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail. If application is made to the supreme court, or district court of appeal, notice and a copy of such application shall be given to the attorney general and the state attorney. Such proceedings shall be determined promptly.

(e) Bail Before Conviction; Condition of Undertaking.

(1) If a person is admitted to bail for his appearance for a preliminary hearing, or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that he the person will appear for such the hearing, or to answer the charge, and will submit himself to the orders and process of the magistrate trying the same, and will not depart without leave.

(2) If he a person is admitted to bail after he has been being held to answer by a magistrate, or after an indictment or information on which he the person is to be tried has been filed against him, the condition of the undertaking shall be that he the person will appear to answer the charges before the court in which he or she may be prosecuted and submit to the orders and process of the court, and will not depart without leave.

(f) Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit himthe defendant to the custody of the proper official to abide by the judgment, sentence, and any further order of the court.

(g) Arrest and Commitment by Court. The court in which the cause is pending may direct the arrest and commitment of the defendant who is at large on bail in the following cases when:

(1) When there has been a breach of the undertaking;

(2) When it appears that his the defendant's sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state; or

(3) When the court is satisfied that the bail should be increased or new or additional security required;.

The order for the commitment of the defendant shall recite generally the facts upon which it is based, and shall direct that the defendant be arrested by any official *242 authorized to make arrests, and that the defendant be committed to the official in whose custody he or she would be had if he or she had not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment, the defendant shall be committed. If the order is made for any other cause, the court may determine the conditions of release, if any.

(h) Bail Aafter Recommitment. If the defendant applies to be admitted to bail after recommitment, the court which that recommitted him the defendant shall determine conditions of release, if any, subject to the limitations of (c)(b) above.

(i) Qualifications of Surety Aafter Order of Recommitment. If the defendant offers bail after recommitment, each surety shall possess the qualifications and sufficiency, and the bail shall be furnished in all respects in the manner, prescribed for admission to bail before recommitment.

(j) Issuance of Capias; Bail Specified. Upon On the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall issue or shall direct the clerk to issue, either immediately, or when so directed by the prosecuting attorney, a capias for the arrest of such the person. If the person named in the indictment or information is a child, and said the child has been served with a promise to appear under the Florida Rules of Juvenile Procedure, capias need not be issued. Upon the filing of the indictment or information, the judge shall endorse the amount of bail, if any, and may authorize the setting or modification of bail by the judge presiding over the defendant's first appearance hearing. This endorsement shall be made on the capias and signed by the judge.

(k) Summons Upon on Misdemeanor Charge. When a complaint is filed charging the commission of a misdemeanor only and the magistrate deems that process should issue as a result, or when an indictment or information on which the defendant is to be tried charging the commission of a misdemeanor only, and the person named in it is not in custody or at large on bail for the offense charged, the magistrate or judge shall direct the clerk to issue a summons instead of a capias unless the magistrate or judge has reasonable ground to believe that the person will not appear in response to a summons, in which event an arrest warrant or a capias shall be issued with the amount of bail endorsed on it. The summons shall state substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the judge issuing the summons or the judge having jurisdiction of the offense at a time and place stated in it.

( l ) Summons When Defendant iIs Corporation. Upon On the filing of an indictment or information or complaint charging a corporation with the commission of a crime, whether felony or misdemeanor, the judge shall direct the clerk to issue or shall issue a summons to secure its appearance to answer the charge. If, after being summoned, the corporation does not appear, a plea of not guilty shall be entered and trial and judgment shall follow without further process.

Committee Notes

1968 Adoption. (a) Same as section 903.01, Florida Statutes.

(b) Same as section 903.04, Florida Statutes.

(c) Same as section 903.02, Florida Statutes.

(d) Same as section 903.12, Florida Statutes.

(e) Substantially same as section 903.13, Florida Statutes.

(f) Same as section 903.19, Florida Statutes.

(g) Same as section 918.01, Florida Statutes.

*243 (h) Substantially same as section 903.23, Florida Statutes.

(i) Same as section 903.24, Florida Statutes.

(j) Same as section 903.25, Florida Statutes.

(k) and ( l ) Formerly rule 3.150(c). These proposals contain the essentials of present sections 907.01, 907.02, and 901.09(3), Florida Statutes, a change of some of the terminology being warranted for purpose of clarity.

(m) Formerly rule 3.150(c). This proposal contains all of the essentials of section 907.03, Florida Statutes, and that part of section 901.14, Florida Statutes, pertaining to postindictment or postinformation procedure. A charge by affidavit is provided.

Although subdivision (g) is the same as section 918.01, Florida Statutes, its constitutionality was questioned by the subcommittee, constitutional right to bail and presumption of innocence.

1972 Amendment. Same as prior rule except (b), which is new. (k), ( l ), and (m) are taken from prior rule 3.150.

1977 Amendment. This proposal amends subparagraph subdivision (b)(4) of the present rule [formerly Rrule 3.130(b)(4)] to expand the forms of pre-trial pretrial release available to the judge. The options are the same as those available under the federal rules without the presumption in favor of release on personal recognizance or unsecured appearance.

This proposal leaves it to the sound discretion of the judge to determine the least onerous form of release which will still insure the defendant's appearance.

It also sets forth the specific factors the judge should take into account in making this determination.

Paragraph (a) was repealed by Ch. 76-138, § 2, Laws of Florida, insofar as it was inconsistent with the provision of that statute. Subparagraph (a) has been amended so as to comply with the legislative act.

1983 Amendment. Rule 3.131(d) is intended to replace former Rrule 3.130(f), and therefore contemplates all subsequent modifications of bail; including all increases or reductions of monetary bail, or any other changes sought by the Sstate or by the defendant.

Court Comment

1977 Amendment. Subdivision (a) was repealed by Chapter 76-138, § 2, Laws of Florida, insofar as it was inconsistent with the provision of that statute. Subdivision (a) has been amended so as to comply with the legislative act.

RULE 3.132. PRETRIAL DETENTION

(a) Motion Filed at First Appearance. A person arrested for an offense for which detention may be ordered under Ssection 907.041, of the Florida Statutes, shall be taken before a judicial officer for a first appearance within twenty-four (24) hours of arrest. The Sstate may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by the Sstate Aattorney or hisan assistant, setting forth with particularity the grounds and the essential facts on which pretrial detention is sought, and certifying that hethe state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion. If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of Rrule 3.131(b)(1). If the motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine whether there is probable cause that the person committed the offense. If probable cause is found, the person may be detained in custody pending a final hearing on pretrial detention. If probable cause is established after first appearance pursuant to the provisions of Rrule 3.133, and the person has been released from custody, hethe person may be recommitted to custody pending a final hearing on pretrial detention.

(b) Motion Filed Aafter First Appearance. A motion for pretrial detention may be filed at any time prior to trial. SuchThe motion shall be made to the court with trial jurisdiction. UponOn receipt of a facially sufficient motion and a determination of *244 probable cause, unless otherwise previously established, that an offense eligible for pretrial detention has been committed, the following shall occur:

(1) In the event of exigent circumstances, the court shall issue a warrant for the arrest of the named person, if suchthe person has been released from custody. The person may be detained in custody pending a final hearing on pretrial detention.

(2) In the absence of exigent circumstances, the court shall order a hearing on suchthe motion as provided in (c) below.

(c) Final Order.

(1) Hearing Required. A final order of pretrial detention shall be entered only after a hearing in the court of trial jurisdiction. The hearing shall be held within five (5) days of the filing of the motion, or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later. The Sstate Aattorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in Ssection 907.041, of the Florida Statutes. The defendant may request a continuance. The Sstate shall be entitled to one 1 continuance for good cause. No continuance shall exceed five (5) days unless there are extenuating circumstances. The defendant may be detained pending the hearing, but in no case shall he the defendant be detained in excess of ten (10) days, unless such the delay is sought by the defendant. The person sought to be detained is entitled to representation by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence. No testimony by the defendant shall be admissible to prove the guilt of the defendant at any other judicial proceeding, but may be admitted in an action for perjury based upon the defendant's statements made at the pretrial detention hearing, or for impeachment.

(2) Findings and Conclusions to bBe Recorded. The court's pretrial detention order shall be based solely on evidence produced at the hearing, and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within twenty-four (24) hours of the pretrial detention hearing.

(3) Dissolution of Order. The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.

(4) Further Proceedings on Order. In the event If any trial court enters a final order of pretrial detention, the defendant may obtain review by motion to the appropriate appellate court. If motion for review is taken to the supreme court or the district court of appeal, notice and a copy of suchthe motion shall be served upon the attorney general and the state attorney; if review is taken to the circuit court, service shall be upon the state attorney.

(d) Length of Detention. If ordered detained pending trial pursuant to sub-paragraph (4)(b) of Ssection 907.041(4)(b), of the Florida Statutes, the defendant may not be held more than ninety (90) days. Failure of the state to bring the defendant to trial within that time shall result in his the defendant's release from detention subject to any conditions of release, unless the trial delay was requested or caused by the defendant or histhe defendant's counsel.

RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY PRELIMINARY HEARINGS

(a) Nonadversary Probable Cause Determination.

(1) Defendants in Custody. In all cases where in which the defendant is in custody, a nonadversary probable cause determination shall be held before a magistrate within 72 hours from the time of the defendant's *245 arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a magistrate and an arrest warrant issued for the specific offense for which the defendant is charged. The magistrate for good cause may continue the proceeding for not more than 24 hours beyond the above 72-hour period. This determination shall be made if the necessary proof is available at the time of the first appearance as required under Rrule 3.130, but the holding of this determination at saidthat time shall not affect the fact that it is a nonadversary proceeding.

(2) Defendants on Pretrial Release. A defendant who has been released from custody before a probable cause determination is made and who is able to establish that histhe pretrial release conditions are a significant restraint on his or her liberty may file a written motion for a nonadversary probable cause determination setting forth with specificity the items of significant restraint that a finding of no probable cause would eliminate. The motion shall be filed within 21 days from the date of arrest, and notice shall be given to the Sstate. TheA magistrate shall, if hewho finds significant restraints on the defendant's liberty, shall make a probable cause determination within 7 days from the filing of the motion.

(3) Standard of Proof. Upon presentation of proof, the magistrate shall determine whether there is probable cause for detaining the arrested person pending further proceedings. The defendant need not be present. In determining probable cause to detain the defendant, the magistrate shall apply the standard for issuance of an arrest warrant, and histhe finding may be based upon sworn complaint, affidavit, deposition under oath, or, if necessary, upon testimony under oath properly recorded.

(4) Action on Determination. If probable cause is found, the defendant shall be held to answer the charges. If probable cause is not found or the specified time periods are not complied with, the defendant shall be released from custody unless an information or indictment has been filed, in which event the defendant shall be released on his or her own recognizance subject to the condition that he or she appear at all court proceedings, or shall be released under a summons to appear before the appropriate court at a time certain. Any release occasioned by a failure to comply with the specified time periods shall be by order of the magistrate upon a written application filed by the defendant with notice sent to the state or by a magistrate without a written application but with notice to the state. The magistrate shall order the release of the defendant after it is determined that the defendant is entitled to release and after the state has a reasonable period of time, not to exceed 24 hours, in which to establish probable cause. A release required by this rule does not void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and filed, together with the evidence of such probable cause, with the clerk of the court having jurisdiction of the offense for which the defendant is charged.

(b) Adversary Preliminary Hearing.

(1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of his arrest or service of the capias upon him or her shall have a right to an adversary preliminary hearing on any felony charge then pending against himthe defendant. The subsequent filing of an information or indictment shall not eliminate a defendant's entitlement to this proceeding.

(2) Process. The magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state for the state or the defendant.

(3) Witnesses. All witnesses shall be examined in the presence of the defendant and may be cross-examined. Either party may request that the witnesses be sequestered. At the conclusion of the testimony for the prosecution, the defendant shall, if hewho so elects, shall be sworn and testify in his or her own behalf, and in such cases *246 hethe defendant shall be warned in advance of testifying that anything he or she may say can be used against him or her at a subsequent trial. HeThe defendant may be cross-examined in the same manner as other witnesses, and any witnesses offered by himthe defendant shall be sworn and examined.

(4) Record. At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim stenographically or by mechanical means, and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to the defendant or his the defendant's counsel.

(5) Action on Hearing. If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall cause the defendant to be held to answer to the circuit court; otherwise, the magistrate shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on his or her own recognizance subject to the condition that he or she appear at all court proceedings, or shall be released under a summons to appear before the appropriate court at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court.

(c) Additional Nonadversary Probable Cause Determinations and Preliminary Hearings. If there has been a finding of no probable cause at a nonadversary determination or adversary preliminary hearing, or if the specified time periods for holding a nonadversary probable cause determination have not been complied with, a magistrate may thereafter make a determination of probable cause at a nonadversary probable cause determination, in which event the defendant shall be retained in custody or returned to custody upon appropriate process issued by the magistrate. A defendant who has been retained in custody or returned to custody by such a determination shall be allowed an adversary preliminary hearing in all instances in which a felony offense is charged.

Committee Notess

1968 Adoption. (Notes are to former rule 1.122.)

(a) Substantially the same as section 902.01, Florida Statutes; the word "examination" is changed to "hearing" to conform to modern terminology.

(b) through (j) Substantially the same as sections 902.02 through 902.10, 902.13, and 902.14, Florida Statutes, except for exchange of "hearing" for "examination."

(k) Parts of section 902.11, Florida Statutes, and all of section 902.12, Florida Statutes, were omitted because of conflict with case law: Escobedo v. Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964); White v. Maryland, 373 U.S. 59 , 83 S.Ct. 1050 , 10 L.Ed.2d 193 (1963).

( l ) Taken from Federal Rule of Criminal Procedure 5(c). Previously Florida had no statute or rule defining what the magistrate should do at the conclusion of the preliminary hearing.

(m) Substantially the same as section 902.18, Florida Statutes, except "without delay" changed to "within 7 days." Some specific time limit was felt necessary because of frequent delay by magistrates while defendants remain in jail.

1972 Revision Amendment. The ABA Standards on Pre-Trial Release provide for a person arrested to be taken before a committing magistrate without unreasonable delay for immediate judicial consideration of the release decision. The Ccommittee determined that, since a determination of probable cause at this immediate hearing presents difficult logistical problems for the Sstate and for the defense *247 counsel, the question of probable cause should be decided at a later preliminary hearing. For this reason, sectionssubdivisions (c), (d), and (e) of the former Rrule have been deleted in favor of the hearing provision now contained in Rrule 3.130.

(a) A revised version of former Rrule 3.122(a).

(b) New. Establishes the time period in which the preliminary hearing must take place.

(c)(1) Substantially the same as former Rrule 3.122(b). Amended to provide for advice of counsel relative to waiver, and to provide for written waiver.

(c)(2) Amended to delete provisions relating to recording of proceedings as same are now contained in subparagraphsubdivision (h).

(d) Same as prior rule 3.122(g).

(e) Same as prior rule 3.122(h).

(f) Substantially the same as prior rule 3.122(i); language modernized by slight changes.

(g) Same as prior rule 3.122(j).

(h) New rule to provide for record of proceedings.

(i) Same as prior rule 3.122(k(2)1).

(j) Substantially the same as prior rule 3.122(m). Time period for transmission of papers is reduced. (2) provides for transmission of any transcript of proceedings.

1977 Amendment. The rule corrects several deficiencies in the prior rule:

(1) In the prior rule no specific mechanism was provided to effect the release which is allowed. This revision provides such a mechanism and coordinates the mechanism with the additional procedures created by sectionsubdivision (c).

(2) Once a determination of no probable cause was made and the defendant was released, no method was provided for reversing the process in those instances in which the determination is palpably in error or in instances in which it is later possible to establish probable cause.

(3) The prior rule allowed the unconditioned release of a defendant without the possibility orf recapture simply because of a technical failure to abide by the rather arbitrary time limits established for the conduct of a nonadversary probable cause determination and regardless of the ability to establish probable cause. The new rule allows a determination or redetermination of probable cause to be made in instances in which to do so is sensible. The defendant is protected by the provision allowing him an adversary preliminary hearing as a check against any possible abuse.

1983 Amendment. Rule 3.131(d) is intended to replace former Rule 3.130(f), and therefore contemplates all subsequent modifications of bail; including all increases or reductions of monetary bail, or any other changes sought by the State or by the defendant.

Court Comment

1975 Amendment. This is a complete rewrite of the preliminary hearing rule.

RULE 3.140. INDICTMENTS; INFORMATIONS

(a) Methods of Prosecution.

(1) Capital Crimes. An offense which that may be punished by death shall be prosecuted by indictment.

(2) Other Crimes. The prosecution of all other criminal offenses shall be as follows:

In circuit courts and county courts, prosecution shall be solely by indictment or information, except that prosecution in county courts for violations of municipal ordinances and metropolitan county ordinances may be by affidavit or docket entries and prosecutions for misdemeanors, municipal ordinances, and county ordinances may be by Nnotice to Aappear issued and served pursuant to Rrule 3.125. A grand jury may indict for any offense. When a grand jury returns an indictment for an offense not triable in the circuit court, the circuit judge shall either issue a summons returnable in the county court, or shall bail the accused for trial in the county court, and suchthe judge, or at histhe judge's direction, the clerk of the circuit *248 court, shall certify the indictment and file sameit in the records of the county court.

(b) Nature of Indictment or Information. The indictment or information upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.

(c) Caption, Commencement, Date, and Personal Statistics.

(1) Caption. No formal caption is essential to the validity of an indictment or information upon which the defendant is to be tried. Upon objection made as to its absence a caption shall be prefixed in substantially the following manner:

In the (name of Ccourt)

State of Florida versus (name of defendant)

Any defect, error, or omission in a caption may be amended as of course, at any stage of the proceeding, whether before or after a plea to the merits, by court order.

(2) Commencement. All indictments or informations upon which the defendant is to be tried shall expressly state that the prosecution is brought in the name and by the authority of the State of Florida. Indictments shall state that the defendant is charged by the grand jury of the county. Informations shall state that the appropriate prosecuting attorney makes the charge.

(3) Date. Every indictment or information on which the defendant is to be tried shall bear the date (day, month, year) that it is filed in each court in which it is so filed.

(4) Personal Statistics. Every indictment or information shall include the defendant's race, gender, date of birth, and social security number when any of these facts are known. Failure to include these facts shall not invalidate an otherwise sufficient indictment or information.

(d) The Charge.

(1) Allegation of Facts; Citation of Law Violated. Each count of an indictment or information upon which the defendant is to be tried shall allege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation, or other provision of law whichthat the defendant is alleged to have violated. Error in or omission of the citation shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to histhe defendant's prejudice.

(2) Name of Accused. The name of the accused person shall be stated, if known, and if not known, hethe person may be described by any name or description by which hethe person can be identified with reasonable certainty. If the grand jury, prosecuting attorney, or affiant making the charge does not know either the name of the accused or any name or description by which hethe accused can be identified with reasonable certainty, the indictment or information, as the case may be, shall so allege and the accused may be charged by a fictitious name.

(3) Time and Place. Each count of an indictment or information upon which the defendant is to be tried shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged in the act or transaction or on two2 or more acts or transactions connected together, provided the court in which the indictment or information is filed has jurisdiction to try all of the offenses charged.

(4) Allegation of Intent to Defraud. WhenIf an intent to defraud is required as an element of the offense to be charged, it shall be sufficient to allege an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded.

(e) Incorporation by Reference. Allegations made in one1 count shall not be incorporated by reference in another count.

(f) Endorsement and Signature; Indictment. An indictment shall be signed by the foremanperson or the acting foreman person of the grand jury returning it. The state attorney or acting state attorney or an assistant state attorney shall make and sign a statement on the indictment to the effect that he or she has advised the grand *249 jury returning the indictment as authorized and required by law. No objection to the indictment on the ground that the statement has not been made shall be entertained after the defendant pleads to the merits.

(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

(h) Conclusion. An indictment or information on which the defendant is to be tried need contain no formal conclusion.

(i) Surplusage. An unnecessary allegation may be disregarded as surplusage and, upon motion of the defendant, may be stricken from the pleading by the court.

(j) Amendment of Information. An information upon which the defendant is to be tried whichthat charges an offense may be amended on the motion of the prosecuting attorney or defendant at any time prior to trial because of formal defects.

(k) Form of Certain Allegations. Allegations concerning the following items may be alleged as indicated below:

(1) Description of Written Instruments. Instruments consisting wholly or in part of writing or figures, pictures, or designs may be described by any term by which they are usually known or may be identified, without setting forth a copy or facsimile thereof.

(2) Words; Pictures. Necessary averments relative to spoken or written words or pictures may be made by the general purport of such words or pictures without setting forth a copy or facsimile thereof.

(3) Judgments; Determinations; Proceedings. A judgment, determination, or proceeding of any court or official, civil or military, may be alleged generally in such a manner as to identify such the judgment, determination, or proceeding, without alleging facts conferring jurisdiction on suchthe court or official.

(4) Exceptions; Excuses; Provisos. Statutory exceptions, excuses, or provisos relative to offenses created or defined by statute need not be negatived by allegation.

(5) Alternative or Disjunctive Allegations. For an offense whichthat may be committed by doing one1 or more of several acts, or by one1 or more of several means, or with one1 or more of several intents or results, it is permissible to allege in the disjunctive or alternative such two or more acts, means, intents, or results.

(6) Offenses Divided into Degrees. For an offense divided into degrees it is sufficient to charge the commission of the offense without specifying the degree.

(7) Felonies. It shall not be necessary to allege that the offense charged is a felony or was done feloniously.

( l ) Custody of Indictment or Information. Unless the defendant named therein has been previously released on a citation, order to appear, personal recognizance, or bail, or has been summoned to appear, or unless otherwise ordered by the court having jurisdiction, all indictments or informations and the records thereof shall be in the custody of the clerk of the court to which they are presented and shall not be inspected by any person other than the judge, clerk, attorney general, and prosecuting attorney until the defendant is in custody or until one1 year has elapsed between the return of an indictment or the filing of an information, after which time they shall be opened for public inspection.

(m) Defendant's Right to Copy of Indictment, or Information. Each person who has been indicted or informed against for an offense shall, upon application to the *250 clerk, be furnished a copy of the indictment or information and the endorsements thereon, at least twenty-four24 hours before he isbeing required to plead to suchthe indictment or information if a copy has not been so furnished to him. A failure to furnish sucha copy shall not affect the validity of any subsequent proceeding against the defendant if he or she pleads to the indictment or information.

(n) Statement of Particulars. The court, upon motion, shall order the prosecuting attorney to furnish a statement of particulars, when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable himthe defendant to prepare hisa defense. SuchThe statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.

( o ) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of hisa defense or expose himthe accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Committee Notes

1968 Adoption. Introductory Statement: The contention may be made that the authority of the Supreme Court of Florida to govern practice and procedure in all courts by court rule does not include the power to vary in any way from present statutory law governing the work product of the grand jury, viz., the indictment. Such a contention must, of necessity, be based in part, at least, upon the assumption that the grand jury is not an integral part of the judicial system of Florida but is a distinct entity which serves that system. The Supreme Court of Florida, in State v. Clemons, 150 So.2d 231 (Fla. 1963), seems to have taken a position contrary to such an assumption.

Regardless of whether such a contention is valid, it seems beyond controversy that the essentials of the indictment, as in the case of an information, are so intimately associated with practice and procedure in the courts that the individual or group having the responsibility of determining its makeup and use is thus empowered to govern a substantial segment of such practice and procedure. The conclusion seems to be inescapable, therefore, that, since the constitution grants to the supreme court authority over this phase of the judicial scheme, the following material is appropriate for consideration as a part of the proposed rules:

(a)(1) Capital Crimes. This recommendation is consistent with present Florida law. See § 10 DR, Fla. Const. (1885, as amended) (now Art. I, § 15, Fla. Const. (1968 as amended)); § 904.01, Fla. Stat. (1963). The terminology "which may be punished by death" is deemed preferable to the terminology "capital crime" of the constitution and "capital offenses" of the statute because of its definitive nature. The recommended terminology is utilized in Federal Rule of Criminal Procedure 7(a) and in the American Law Institute's Code of Criminal Procedure, section 115. The terminology used in the 1963 Code of Criminal Procedure of Illinois is "when death is a possible punishment." See § 110-4.

Section 10, DR, Florida Constitution, provides: "No person shall be tried for a capital crime unless on presentment or indictment by a grand jury." No provision is made in the recommendation for prosecution by presentment. This omission is consistent with the apparent legislative construction placed on this section. Section 904.01, Florida Statutes, provides "All capital *251 offenses shall be tried by indictment by a grand jury." Since presentments traditionally have not been used as trial accusatorial writs in Florida, there seems little reason, at this date, to question that the constitution authorizes the implementing authority, be it the legislature or the supreme court, to use one of the specified methods of prosecution to the exclusion of the other.

(a)(2) Other Crimes. In criminal courts of record and the Court of Record of Escambia County, the constitution of Florida requires that prosecutions be by information. (§§ 9(5) & 10, Art. V). In county judges' courts having elective prosecuting attorneys, present statutory law permits prosecutions by indictment (§ 904.02) and affidavit (Ch. 937). The additional method of prosecution by information is provided as a step toward attaining uniformity with other courts in the prosecution of noncapital offenses, at least to the extent that a prosecutor desires to use an information. This addition involved consideration of whether a nonelected prosecutor serving in a county judge's court, which often is the case, has the authority to use an information as an accusatorial writ. Since this question has not been definitely resolved under present law, caution dictated the specification that the prosecuting attorney be elected as a prerequisite to the use of an information.

In all courts not hereinabove mentioned that have elective prosecuting attorneys, trial by indictment or information is consistent with present Florida constitutional law and most of the statutory law. (See § 10, DR, Fla. Const., §§ 904.01 & 904.02, Fla. Stat.; cf. § 932.56, where an affidavit may be used in cases appealed from a justice of the peace court and which is tried de novo in a circuit court.) In specially created courts having elective prosecutors and which are not otherwise provided for in foregoing provisions of this rule, it was felt that prosecution by indictment or information should be allowed, even though present statutory authority may limit prosecutions in such courts to the use of an information, e.g., the Court of Record of Alachua County.

In courts not having elective prosecutors, prosecution by information is not recommended because of the aforementioned doubt as to the authority of a nonelected prosecutor to use an information as an accusatorial writ. With reference to the present court structure of Florida this part of the proposal applies only to county judges' courts and justice of the peace courts. The only variation from present procedure contemplated by this part of the proposal is the use of an indictment as a basis for prosecution in a justice of the peace court.

Under this proposal a grand jury may indict for any criminal offense. This recommendation is based on the premise that a grand jury's power to indict should not be limited by virtue of levels in a state court structure. A grand jury should be considered as a guardian of the public peace against all criminal activity and should be in a position to act directly with reference thereto. While practicalities dictate that most noncapital felonies and misdemeanors will be tried by information or affidavit, if appropriate, even if an indictment is permissible as an alternative procedure, it is well to retain the grand jury's check on prosecutors in this area of otherwise practically unrestricted discretion.

The procedure proposed for the circuit judge to follow if a grand jury returns an indictment for an offense not triable in the circuit court applies, with appropriate variations, much of the procedure presently used when a grand jury returns an indictment triable in a criminal court of record. See § 32.18, Fla. Stat.

(b) Nature of Indictment or Information. This provision appears in rule 7(c) of the Rules of Criminal Procedure for the United States District Court (hereafter referred to as the federal rules for purposes of brevity). It may be deemed appropriate for incorporation into the recommendations since it preserves to the defendant expressly the right to a formal written accusation and at the same time permits the simplification of the form of the accusation and *252 the elimination of unnecessary phraseology.

(c) Caption, Commencement, and Date.

(1) Caption. Section 906.02, Florida Statutes, contains the essentials of this proposal. It is well settled at common law that the caption is no part of the indictment and that it may be amended. The caption may be considered as serving the purpose of convenience by making more readily identifiable a particular accusatorial writ. The proposal makes it possible for this convenience to be served if either party wishes it, yet does not provide that the caption be a matter of substance. The essentials of this recommendation also appear in section 149 of the American Law Institute's Code of Criminal Procedure.

(2) Commencement. This proposal apparently is directly contrary to section 906.02(1), Florida Statutes, which treats the caption and the commencement in the same manner, i.e., that neither is necessary to the validity of the indictment or information but may be present as mere matters of convenience. This legislative assumption may not be a correct one and caution dictates that a meaningful commencement be included. Section 20, article V, of the Constitution of Florida provides that the style of all process shall be: "`The State of Florida' and all prosecutions shall be conducted in the name and by the authority of the State." As contemplated in the proposal, the commencement expressly states the sovereign authority by which the accusatorial writ is issued and the agent of that authority. Section 906.02(2), Florida Statutes, seems to contemplate that there will be included in the indictment an express provision concerning the agency of the state responsible for its presentation, viz., the grand jury, by stating, "It is unnecessary to allege that the grand jurors were empaneled, sworn or charged, or that they present the indictment upon their oaths or affirmations." The American Law Institute's commentary on the commencement (A.L.I.Code of Criminal Procedure, p. 529 et seq.) indicates that there is much confusion between what information should be in the commencement as distinguished from the caption.

(3) Date. Since in many cases the beginning of the prosecution is co-existent with the issuance of the indictment or information, the date the writ bears may be of great significance, particularly with reference to the tolling of a statute of limitations. If the date of a grand jury's vote of a true bill or a prosecutor's making oath to an information differs from the date of filing of the indictment or information with the appropriate clerk, it seems the date of filing is the preferable date for a writ to bear since until the filing transpires there is no absolute certainty that the prosecution actually will leave the province of the grand jury or prosecutor.

(d) The Charge.

(1) Allegation of Facts; Citation of Law Violated. This proposal is consistent with various sections of chapter 906, Florida Statutes, in that the charge is adequately alleged when based on the essentials of the offense; surplusage should be guarded against. The citation of the law allegedly violated contributes to defining the charge and conserves time in ascertaining the exact nature of the charge. The 1963 Illinois Criminal Code, section 111-3(a)(2), and Federal Rule of Criminal Procedure 7(c) contain similar provisions.

(2) Name of Accused. The provision concerning the method of stating the name of the accused is consistent with the very elaborate section 906.08, Florida Statutes, which seems unnecessarily long. It is deemed desirable that when a fictitious name is used the necessity therefor should be indicated by allegation.

(3) Time and Place. This provision is consistent with present Florida law. (See Morgan v. State, 51 Fla. 76 , 40 So. 828 (1906), as to "time"; see Rimes v. State, 101 Fla. 1322 , 133 So. 550 (1931), as to "place".) The provision is patterned after section 111-3(4) of the 1963 Illinois Code of Criminal Procedure.

(4) Joinder of Offenses. The essence of this proposal is presently found in section 906.25, Florida Statutes, federal rule 8(a), *253 and section 111-4(a) of the 1963 Illinois Code of Criminal Procedure.

(5) Joinder of Defendants. This proposal is taken from federal rule 8(b). Its substance also appears in section 111-4(b) of the Illinois Code of Criminal Procedure. Although section 906.25, Florida Statutes, does not expressly contain this provision, there is little doubt that its broad language includes it.

(6) Allegation of Intent to Defraud. The language of this proposal presently appears in section 906.18, Florida Statutes, except for the provision concerning affidavit. Its continuation seems advisable as an aid to drawing allegations in charging instruments, although such information if known to the prosecutor may be required to be given in a bill of particulars upon motion of the defendant. (See subdivision (n) of this rule.) At times such information may be unknown to the prosecutor. A part of the statute is purposely not included in the proposal. The excluded part states "and on the trial it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States or any state, county, city, town or parish, or any body corporate, or any public officer in his official capacity, or any copartnership or members thereof, or any particular person." It seems that this part of the statute is stated in terms of the law of evidence rather than practice and procedure and should not be included in the rules, although apparently being a logical conclusion from the part included in the proposal.

(e) Incorporation by Reference. Although provision for incorporation by reference appears in federal rule 7(c), the prohibition of such incorporation is recommended with the thought that even though repetition may be minimized by incorporation, confusion, vagueness, and misunderstanding may be fostered by such procedure.

(f) Endorsement and Signature; Indictment. The requirement that the indictment be endorsed "A true bill" and be signed by the foreman or acting foreman of the grand jury presently appears in section 905.23, Florida Statutes. There apparently is no valid reason for changing this requirement since it serves the useful purpose of lending authenticity to the indictment as a legal product of the grand jury. The requirement of the foreman's signature also appears in federal rule 6(c), 1963, Illinois CCP section 111-3(b), and A.L.I. Model Code of Criminal Procedure section 125.

The provision pertaining to the statement and signature of the prosecuting attorney varies from present Florida law and is offered in alternative form. Florida statutes presently provide that an indictment shall be signed by a state attorney (§§ 27.21 & 27.22). Federal rule 7(c) also provides for the signature of the attorney for the government.

No requirement presently is made in Florida necessitating an express explanatory statement preceding such signature. Presumably the justification for the signature appears in the Florida statutes that require the aforementioned officers to wait upon the grand jury as advisors, as examiners of witnesses, and to draw indictments. (See §§ 905.16, 905.17, 905.19, 905.22, 27.02, 27.16, 27.21, & 27.22, Fla. Stat.)

Vagueness remains concerning the significance of the signature, however. Since the prosecuting attorney cannot be present while the grand jury is deliberating or voting (see section 905.17, Florida Statutes) and has no voice in the decision of whether an indictment is found (see section 905.26, Florida Statutes), a logical question arises concerning the necessity for the prosecuting attorney's signature on the indictment. The provision for the statement is made for the purpose of clarifying the reason for the signature.

(g) Signature, Oath, and Certification; Information. Section 10, DR, Florida Constitution, requires that informations be under oath of the prosecuting attorney of the court in which the information is filed. Article V, section 9(5), Florida Constitution, contains the same requirement concerning informations filed by the prosecuting attorney in a criminal court of record. This proposal also does not deviate from present *254 Florida statutory law as found in section 906.04, Florida Statutes. This statute has received judicial approval. (See Champlin v. State, 122 So.2d 412 (Fla. 2d DCA 1960).) It should be noted here that the prosecutor's statement under oath is defined as to the purpose served by the signature.

(h) Conclusion. A similar provision currently appears in section 906.03, Florida Statutes, and should be included in the rules because of its tendency to minimize unnecessary statements in accusatorial writs. Provision is added for the affidavit as an accusatorial writ.

(i) Surplusage. The first part of the proposal, providing for the disregarding of unnecessary allegations as surplusage, is similar to section 906.24, Florida Statutes. The part concerned with striking such material is patterned after federal rule 7(d). The parts are properly complementary.

(j) Amendment of Information. This proposal contains no provision for an amendment of an indictment since, presumably, a grand jury may not amend an indictment which it has returned and which is pending, although it may return another indictment and the first indictment may be disposed of by a nolle prosequi. (See 17 Fla.Jur. Indictments and Informations, 9 (1958).) A federal indictment cannot be amended without reassembling the grand jury (see Ex parte Bain, 121 U.S. 1 (1887)); consequently the federal rules contain no provision for the amendment of an indictment. (It may be that the Supreme Court of Florida will feel inclined to include in the rules an express statement concerning amendments of an indictment. None is included here, however.)

The proposal is patterned after section 111-5 of the 1963 Illinois Code of Criminal Procedure, with one exception. The exception arises due to the fact that the Illinois Code provision applies to indictments as well as informations, the position in Illinois apparently being assumed that an indictment may be amended, at least with reference to specified items listed in the statute, as well as other formalities.

(k) Form of Certain Allegations. Several statutes in chapter 906, Florida Statutes, are concerned with the manner of making allegations in indictments and informations. Some of these sections are of such general application that it seems advisable to include their substance in the rules; others are so restricted that it may be deemed appropriate to recommend other disposition of them.

The proposals made in (1) through (7) here are based on the substance of the designated Florida statutes:

Proposal (1): section 906.09.

Proposal (2): section 906.10.

Proposal (3): section 906.11.

Proposal (4): section 906.12.

Proposal (5): section 906.13.

Proposal (6): section 906.23.

Proposal (7): section 906.17.

( l ) Custody and Inspection. The proposal is taken verbatim from section 906.27, Florida Statutes. The necessity for specific provision for the custody and inspection of accusatorial writs seems to be proper to include here.

(m) Defendant's Right to Copy of Indictment or Information. The procedure contained in this proposal is presently required under section 906.28, Florida Statutes, and seems to be unobjectionable.

(n) Statement of Particulars. The phrase, "bill of particulars," has been modernized by changing "bill" to "statement." Historically, a "bill" is a written statement. The first sentence of this proposal is taken from section 906.27, Florida Statutes, the only change being the narrowing of the scope of the judicial discretion now granted by the statute. The latter part of the proposal is recommended in order to clarify the requirements of the rule. Provision for the accusatorial affidavit has been added.

( o ) Defects and Variances. This proposal presently appears in Florida law in the form of section 906.25, Florida Statutes. The statute has been the object of much judicial construction and it seems inadvisable to divide it into parts merely for convenience in placing these parts under more *255 appropriate titles, such as "Pre-Trial Motions," "Motion for New Trial," etc.

The intimate relation the statute has with indictments and informations justifies its inclusion here. The useful purposes served by the court constructions dictate the use of the statutory language without change.

1972 Revision Amendment. Substantially the same as prior rule. References to trial by affidavit have been deleted throughout this rule and all Florida rRules of Criminal Procedure because of the passage of the 1972 amendment to article V of the Florida Constitution.

(a)(2) Amended to refer only to Ccircuit Ccourts and Ccounty Ccourts. Reference to trial of vehicular traffic offenses transferred to Rrule 3.010 and made applicable to all Rrules of Ccriminal Pprocedure.

Former rule (d)(4) and (d)(5) transferred to Nnew Rrule 3.150. Former rule (d)(6) renumbered as (d)(4).

1973 Amendment. The purpose of the amendment is to provide the same method for prosecution of violations of metropolitan county ordinances as for violations of municipal ordinances.

RULE 3.150. JOINDER OF OFFENSES AND DEFENDANTS

(a) Joinder of Offenses. Two or more offenses whichthat are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two2 or more connected acts or transactions.

(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information upon which they are to be tried when:

(1) when each defendant is charged with accountability for each offense charged;

(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one1 or more offenses alleged to have been committed in furtherance of the conspiracy; or

(3) when, even if conspiracy is not charged and all defendants are not charged in each count, it is alleged that the several offenses charged were part of a common scheme or plan.

Such defendants may be charged in one1 or more counts together or separately, and all of the defendants need not be charged in each count.

Committee Notes

1968 Adoption. (Notes are to rule 1.140(d)(4) and (5).)

(4) Joinder of Offenses. The essence of this proposal is presently found in section 906.25, Florida Statutes, federal rule 8(a), and section 111-4(a) of the 1963 Illinois Code of Criminal Procedure.

(5) Joinder of Defendants. This proposal is taken from federal rule 8(b). Its substance also appears in section 111-4(b) of the Illinois Code of Criminal Procedure. While section 906.25, Florida Statutes, does not expressly contain this provision, there is little doubt that its broad language includes it.

1972 Amendment. Provisions of former Rrule 3.150 are transferred to and incorporated in Rrule 3.130, Pre-TrialPretrial Release.

(a) Substantially the same as Fformer Rrule 3.140(d)(4) except that it omits proviso that the court have jurisdiction to try all offenses charged. The proviso seems redundant.

(b) Substantially the same as ABA Standard 1.2 of ABA Standards Relating to Joinder and Severance but omits subparagraph (c)(2) which would permit joinder of charges "so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others." The ABA commentary on this Sstandard concedes that in such cases the chances are considerable that defendants would have a right to severance. Difficulty of separating proof is a good reason for denying a right to join charges. The Ccommittee is of the opinion that defendants not connected in the commission *256 of an act and not connected by conspiracy or by common scheme or plan should not, under any circumstances, be joined. The Ssuggested Rrule omits the provision of former Rrule 3.140(d)(4) permitting joinder of two2 or more defendants in a single indictment or information, if they are alleged to have participated in the same series of acts or transactions constituting more than one1 offense. If all defendants participated in a series of connected acts or transactions constituting two2 or more offenses, the offenses can be joined under the Rrule 3.150(a).

The last sentence of the Ssuggested Rrule is the last sentence of former Rrule 3.140(d)(5).

RULE 3.151. CONSOLIDATION OF RELATED OFFENSES

(a) Related Offenses. For purposes of these Rrules, two2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on two2 or more connected acts or transactions.

(b) Consolidation of Indictments or Informations. Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation.

(c) Dismissal of Related Offenses after Trial. When a defendant has been tried on a charge of one1 of two2 or more related offenses, the charge of every other related offense shall be dismissed on the defendant's motion unless a motion by suchthe defendant for consolidation of suchthe charges has been previously denied, or unless suchthe defendant has waived histhe right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging suchthe other offense or offenses.

(d) Plea. A defendant may plead guilty or nolo contendere to a charge of one1 offense on the condition that other charges of related offenses be dismissed or that no charges of other related offenses be instituted. Should the court find that suchthe condition cannot be fulfilled, the plea shall be considered withdrawn.

Committee Notes

1968 Adoption. This rule is almost the same as federal rule 13, with provisions added for trial by affidavit.

1972 Revision Amendment. (a) To same general effect as ABA Standard with changes to conform to Florida Rrules 3.150(a) and 3.190(k).

(b) Limits motion for consolidation to defendant and provides that defendant waives his or her right to consolidation by failing to file a timely motion. Under standards relating to joinder of offenses and defendants, the prosecution may avoid the necessity for consolidation by charging offenses and defendants in a single indictment or information where consolidation is permissible. Omits provision of ABA Standard authorizing denial of consolidation if prosecuting attorney does not have "sufficient evidence to warrant trying" one1 of the "offenses" or if the court finds that the ends of justice would be defeated by consolidation. The lack of "sufficient evidence to warrant" trial of one1 of several charges of "related offenses" would be quite rare. In the rare case wherein which there is such a lack of evidence, the appropriate remedy would be a motion for continuance of all pending charges of related offenses, showing that the lack of evidence could probably be cured by a reasonable delay. The Ccommittee does not favor separate trials of charges of related offenses over the defendant's objection.

(c) Florida has no similar rule. Omits exception in ABA Standard in case "the prosecuting attorney did not have sufficient evidence to warrant trying (the) offense" or upon a finding that "the ends of justice would be defeated if the motion was granted." See comment on (b). The rule is not intended to restrict defendant's substantive rights.

*257 (d) Florida has no similar rule. The first sentence of ABA Standard is considered by the Ccommittee to state a rule of substantive law and is omitted as unnecessary.

1977 Amendment. The changes from the prior rule are intended to provide equal treatment for both the state and the defendant.

RULE 3.152. SEVERANCE OF OFFENSES AND DEFENDANTS

(a) Severance of Offenses.

(1) In case two2 or more offenses are improperly charged in a single indictment or information, the defendant shall have a right to a severance of the charges upon timely motion thereof.

(2) In case two2 or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the Sstate or of a defendant.:

(i)(A) before trial upon a showing that suchthe severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense,; or

(ii)(B) during trial, only with defendant's consent, upon a showing that suchthe severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.

(b) Severance of Defendants.

(1) On motion of the Sstate or a defendant, the court shall order a severance of defendants and separate trials:

(i)(A) before trial, upon a showing that suchthe order is necessary to protect a defendant's right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of one1 or more defendants; or

(ii)(B) during trial, only with defendant's consent and upon a showing that suchthe order is necessary to achieve a fair determination of the guilt or innocence of one1 or more defendants.

(2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a co-defendantcodefendant makes reference to him or her but is not admissible against him or her, the court shall determine whether the Sstate will offer evidence of the statement at the trial. If the Sstate intends to offer the statement in evidence, the court shall order the Sstate to submit its evidence of suchthe statement for consideration by the court and counsel for defendants and if the court determines that suchthe statement is not admissible against the moving defendant, it shall require the Sstate to elect one1 of the following courses:

(i)(A) a joint trial at which evidence of the statement will not be admitted;

(ii)(B) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of suchthe evidence with deletions will not prejudice the moving defendant; or

(iii)(C) severance of the moving defendant.

(3) Failure to prove grounds for joinder of defendants. In cases wherein which, at the close of the Sstate's case or at the close of all of the evidence, the evidence is not sufficient to support a finding that allegations on which the joinder of a defendant is based have been proved, the court shall, on motion of that defendant, grant a severance unless the court finds that severance is unnecessary to achieve a fair determination of that defendant's guilt or innocence.

Committee Notes

1968 Adoption. This subdivision rewords and adds to federal rule 14. It covers subject matter of section 918.02, Florida Statutes.

1972 Amendment. (a)(1) Severance on timely motion by defendant is mandatory whereif multiple offenses are improperly joined.

(a)(2) Provides for severance of offenses before trial on showing that severance will promote a fair determination of guilt or innocence substantially as provided by former rule 3.190(j)(2) and, unlike any Florida Rrule, distinguishes motion during trial.

*258 (b)(1) Based on ABA Standard 2.3(b). Expands Florida Rrule 3.190(j) to include defendant's right to speedy trial as ground for severance and, unlike any Florida rule, distinguishes between motion before and motion during trial.

(b)(2) Based on ABA Standard 2.3, subparagraphssubparagraphs (a) and (c). Requires court to determine whether the statement will be offered as distinguished from asking the Sstate its intention. Requires production of evidence of the statement in the event it will be offered so that the court and counsel can intelligently deal with the problem. Florida has no similar rule.

(b)(3) Substantially the same as ABA Standard, except that the proposed Rrule requires severance unless the court affirmatively finds that severance is unnecessary. Florida has no similar rule.

RULE 3.153. TIMELINESS OF DEFENDANT'S MOTION; WAIVER

(a) Timeliness; Waiver. A defendant's motion for severance of multiple offenses or defendants charged in a single indictment or information shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for such a motion, but the court in its discretion may entertain such a motion at the trial. The right to file such a motion is waived if it is not timely made.

(b) Renewal of Motion. If a defendant's pre-trialpretrial motion for severance is overruled, hethe defendant may renew the motion on the same grounds at or before the close of all the evidence at the trial.

Committee Notes

1972 Adoption. (a) Relates solely to defendant's motion for severance. Florida has no similar rule.

(b) Florida has no similar rule.

IV. ARRAIGNMENT AND PLEAS

RULE 3.160. ARRAIGNMENT

(a) Nature of Arraignment. The arraignment shall be conducted in open court or by audiovisual device in the discretion of the court and shall consist of the judge or clerk or prosecuting attorney reading the indictment or information upon which the defendant will be tried to the defendant or stating orally to himthe defendant the substances of the charge or charges and calling upon himthe defendant to plead thereto. SuchThe reading or statement as to the charge or charges may be waived by the defendant. If the defendant is represented by counsel, his counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.

(b) Effect of Failure to Arraign or Irregularity of Arraignment. Neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the indictment or information on which the defendant is to be tried or proceeds to trial without objection to such failure or irregularity.

(c) Plea of Guilty Aafter Indictment or Information Filed. If a person who has been indicted or informed against for an offense, but who has not been arraigned, desires to plead guilty thereto, hethe person may so inform the court having jurisdiction of the offense, and suchthe court shall, as soon as convenient, arraign the defendant and permit himthe defendant to plead guilty to the indictment or information.

(d) Time to Prepare for Trial. After a plea of not guilty the defendant is entitled to a reasonable time in which to prepare for trial.

(e) Defendant Not Represented by Counsel. Prior to arraignment of any person charged with the commission of a crime, if he or she is not represented by counsel, the court shall advise himthe person of histhe right to counsel and, if he or she is financially unable to obtain counsel, of histhe right to be assigned court-appointed counsel to represent him or her at suchthe arraignment and at all subsequent proceedings to be represented by counsel, and further,. The person shall execute an affidavit that he or she is unable financially *259 or otherwise to obtain counsel, and if the court shall determine suchthe reason to be true, the court shall appoint counsel to represent himthe person.

If the defendant, however, understandingly waives representation by counsel, he or she shall execute a written waiver of such representation, which shall be filed in the case. If counsel beis appointed, a reasonable time shall be accorded to such counsel before the defendant shall be required to plead to the indictment or information upon which he or she is to be arraigned or tried, or otherwise to proceed further.

Committee Notes

1968 Adoption. (a) A combination of section 908.01, Florida Statutes, and Federal Rule of Criminal Procedure 10.

(b) Same as section 908.02, Florida Statutes.

(c) Same as section 909.15, Florida Statutes, except provision is made for trial by affidavit.

(d) Same as section 909.20, Florida Statutes.

(e) Federal rule 44 provides:

"If the defendant appears in court without counsel the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel."

A presently proposed amendment to such rule provides:

"(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment.

"(b) Assignment Procedure. The procedures for implementing the right set out in subdivision (a) shall be those provided by law or by local rules of district courts of appeal."

In lieu of such latter, blanket provision, it is suggested that the rule provide, as stated, for inquiry of the defendant and determination by the court as to the defendant's desire for and inability to obtain counsel, after being advised of entitlement thereto. Many defendants, of course, will waive counsel.

In view of Harvey v. Mississippi, 340 F.2d 263 (5th Cir.1965), and White v. Maryland, 373 U.S. 59 , 83 S.Ct. 1050 , 10 L.Ed.2d 193 (1963), holding that entitlement to counsel does not depend upon whether the offense charged is a felony or misdemeanor, it is suggested that the word "crime" be used instead of "felony" only in the first sentence of the proposed rule.

In Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961), involving breaking and entering with intent to commit rape, the Supreme Court held the defendant was entitled to counsel at the arraignment, if the arraignment be deemed a part of the trial, as apparently it is under Alabama law. In Ex parte Jeffcoat, 109 Fla. 207 , 146 So. 827 (1933), the Supreme Court of Florida held the arraignment to be a mere formal preliminary step to an answer or plea. However, in Sardinia v. State, 168 So.2d 674 (Fla. 1964), the court recognized the accused's right to counsel upon arraignment. Section 909.21, Florida Statutes, provides for appointment of counsel in capital cases.

1972 Amendment. Substantially the same as prior Rrule. The Ccommittee considered changes recommended by The Florida Bar and incorporated the proposed change relating to written plea of not guilty and waiver of arraignment.

1992 Amendment. The amendment allows the judge to participate in the arraignment process by including the judge as one of the designated individuals who may advise the defendant of the pending charges. Apparently, the 1988 amendment to rule 3.160(a) inadvertently eliminated the judge from the arraignment procedure. In re Rule 3.160(a), Florida Rules of Criminal Procedure, 528 So.2d 1179, 1180 (Fla. 1988). The prior amendment did include the judge. The Florida Bar Re: Amendment to Rules — Criminal Procedure, 462 So.2d 386 (Fla. 1984). While the language of rule *260 3.160(a) as presently set out in the Florida Bar pamphlet, Florida Rules of Criminal Procedure, is identical to the language of this proposed amendment (that is, it includes the judge in the arraignment process), the West publications, Florida Criminal Laws and Rules (1991) and Florida Rules of Court (1991), nevertheless follow the language set out in 528 So.2d at 1180 .

RULE 3.170. PLEAS

(a) Types of Plea; Court's Discretion. A defendant may plead not guilty, guilty, or, with the consent of the Ccourt, nolo contendere. Except as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to suchthe charge at histhe first appearance under Rrule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed. A plea of not guilty may be entered in writing by counsel. Every plea shall be entered of record;, but a failure to enter it shall not affect the validity of any proceeding in the cause.

(b) Pleading to Other Charges. Having entered a plea in accordance with this rule, the defendant may, with the court's permission, enter a plea of guilty or nolo contendere to any and all charges pending against him or her in the State of Florida over which the court would have jurisdiction and, when authorized by law, to charges pending in a court of lesser jurisdiction, if the prosecutor in the other case or cases gives his written consent thereto. The court accepting such a plea shall make a disposition of all such charges by judgment, sentence, or otherwise. The record of suchthe plea and its disposition shall be filed in the court of original jurisdiction of the offense. If a defendant secures permission to plead to other pending charges and does so plead, the entry of such a plea shall constitute a waiver by the defendant of venue and all nonjurisdictional defects relating to such charges.

(c) Standing Mute or Pleading Evasively. If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.

(d) Failure of Corporation to Appear. If the defendant is a corporation and fails to appear, a plea of not guilty shall be entered of record.

(e) Plea of Not Guilty; Operation in Denial. A plea of not guilty is a denial of every material allegation in the indictment or information upon which the defendant is to be tried.

(f) Withdrawal of Plea of Guilty. The court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereofn, set aside suchthe judgment, and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn saidthe plea, may not be used against himthe defendant in a trial of that cause.

(g) Plea of Guilty to Lesser Included Offense or Lesser Degree. The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged whichthat is included in the offense charged in the indictment or information or to any lesser degree of the offense charged.

(h) Plea of Guilty to an Offense Divided into Degrees; Determination of the Degree. When an indictment or information charges an offense that is divided into degrees without specifying the degree, if the defendant pleads guilty, generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty.

(i) Time and Circumstances of Plea. No defendant, whether represented by counsel or otherwise, shall be called upon to plead unless and until he or she has had *261 a reasonable time within which to deliberate thereon.

(j) Responsibility of Court on Pleas. No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings stenographically or by mechanically means, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty. A complete record of the proceedings at which a defendant pleads shall be kept by the court.

Committee Notes

1968 Adoption. (a) Patterned after the major portion of Federal Rule of Criminal Procedure 11.

(b) Same as section 909.07, Florida Statutes, except the word "made" is substituted for "pleaded."

(c) Taken from a part of section 908.03, Florida Statutes.

(d) Taken from a part of section 908.03, Florida Statutes.

(e) Same as section 909.16, Florida Statutes, except that provision is added for trial by affidavit.

(f) Essentially the same as section 909.13, Florida Statutes.

(g) Essentially the same as section 909.09, Florida Statutes, except for the addition of the charge by affidavit.

(h) Same as section 909.11, Florida Statutes, except provision is made for a charge by affidavit.

1972 Amendment. This general topic is found in ABA Standard relating to pleas of guilty. The Standards are divided into three3 parts: receiving and acting upon a plea; withdrawal of the plea; and, plea discussions and plea agreements. The first and second parts are considered under this rule.

(a) Same as first part of existing rule; substance of second sentence of existing rule transferred to new subsectiondivision (j); new provision permits, with court approval, plea of not guilty to be made in writing.

(b) From ABA Standard 1.2; the purpose of this rule is to permit a defendant to plead guilty or nolo contendere to all cases pending against himthe defendant, thus avoiding multiple judicial and prosecutorial labors. New concept of permitting this procedure even though the other cases are pending in other counties is taken from Federal Rule of Criminal Procedure 20 which has successfully met the purpose explained above.

(c) Same as prior rule.

(d) Same as prior rule.

(e) Same as prior rule.

(f) Last sentence added from ABA Standard 2.2.

(g) Same as prior rule.

(h) Same as prior rule.

(i) This should be done in accordance with the cases of Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 , 395 U.S. 238 (1969), and Garcia v. State, Fla., 228 So.2d 300 (Fla. 1969). This should also include advising a defendant so pleading of the possibility of an action or charge against him or her as a multiple felon if the circumstances so warrant.

(j) From first sentence of present Rrule 3.170(a) with addition of requirement of determination of factual basis for a plea of guilty as provided by last sentence of Rule 11 of Ffederal Rrules of Criminal Procedure 11. While requiring the presence of a court reporter, the proposed rule does not require that the reporter transcribe and file a transcript of the proceedings on a plea of guilty or nolo contendere, although the committee considers that such a requirement by the trial judge is desirable.

1973 Amendment. The purpose of this amendment is to provide a method whereby a defendant may plead guilty to a misdemeanor at first appearance without the necessity of the state attorney subsequently filing an information.

*262 RULE 3.171. PLEA DISCUSSIONS AND AGREEMENTS

(a) In General. Ultimate responsibility for sentence determination rests with the trial judge. However, the prosecuting attorney, and the defense attorney, or the defendant, when representing himself or herself, are encouraged to discuss and to agree on pleas whichthat may be entered by a defendant. SuchThe discussion and agreement must be conducted with the defendant's counsel. If the defendant represents himself or herself, all such discussions between himthe defendant and the prosecuting attorney shall be of record.

(b) Responsibilities of the Prosecuting Attorney.

(1) A prosecuting attorney may:

(i)(A) Eengage in discussions with defense counsel or a defendant who is without counsel with a view toward reaching an agreement that, upon the defendant's entering a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecuting attorney will do any of the following:

(A)(i) Aabandon other charges; or

(B)(ii) Mmake a recommendation, or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the trial judge; or

(C)(iii) Aagree to a specific sentence.; and

(ii)(B) Cconsult with the victim, investigating officer, or other interested persons and advise the trial judge of their views during the course of plea discussions.

(2) The prosecuting attorney shall:

(i)(A) Aapprise the trial judge of all material facts known to himthe attorney regarding the offense and the defendant's background prior to acceptance of a plea by the trial judge; and

(ii)(B) Mmaintain the record of direct discussions with a defendant who represents himself or herself, and make suchthe record available to the trial judge upon the entry of a plea arising from these discussions.

(c) Responsibilities of Defense Counsel.

(1) Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without histhe client's full and complete consent thereto, being certain that any decision to plead guilty or nolo contendere is made by the defendant.

(2) Defense counsel shall advise defendant of:

(i)(A) Aall plea offers; and

(ii)(B) Aall pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea, and the likely results thereof, as well as any possible alternatives whichthat may be open to himthe defendant.

(d) Responsibilities of the Trial Judge. After an agreement on a plea has been reached, the trial judge may have made known to him or her the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, hethe judge shall advise the parties of whether other factors (unknown at the time) may make his or her concurrence impossible.

Committee Notes

1972 RevisionAmendment. New in Florida. Most criminal cases are disposed of by pleas of guilty arrived at by negotiations between prosecutor and defense counsel;, but, there was no record of the "plea negotiations," "plea bargaining," or "compromise." The result has been a flood of postconviction claims which require evidentiary hearings and frequently conflicting testimony concerning the plea negotiations. There has also been criticism of the practice of requiring a defendant, upon a negotiated guilty plea, to give a negative reply to the court's inquiry concerning any "promise" made to himthe defendant. This is designed to avoid the foregoing pitfalls and criticisms by having the negotiations made of record and permitting some control of them. See Commentary to Standard 3.1 ABA Standards relating to Ppleas of Gguilty.

(a) From Standard 3.1a.

(b) From Standard 3.2.

(c) From Standard 3.3 except for omission of that part of standard which prohibits *263 trial judge from participating in plea discussions.

(d) From Standard 3.4.

1977 Amendment. This is a rewording of the prior rule in order to set out the responsibilities of the participants. The rule recognizes the ultimate responsibility of the trial judge, but it encourages prosecution and defense counsel to assist the trial judge in this regard. WhereWhen the circumstances of the case so merit, it is the responsibility of each respective party to discuss a fair disposition in lieu of trial. For protection of the prosecutor and the defendant, plea discussions between the state and a pro se defendant should be recorded, in writing or electronically.

(b) New in Florida.

(1)(i) Restatement of policy followed by extensive revision in the form of Federal Rule of Criminal Procedure 11(e)(1), Federal Rule.

(1)(ii) The rule sets out discretionary minimum professional prosecutorial procedure where either victim or law enforcement officers are involved better to better guide the trial judge.

(2)(i) Mandatory responsibility of prosecutor contemplates disposition with no presentencepresentence investigation.

(2)(ii) Mandatory record protects both the prosecutor and the pro se defendant.

(c)(1) Renumbering paragraphsubdivision (b) of prior rule.

(2)(i) New in Florida. This proposed language makes it mandatory for defense counsel to advise fully defendant of all plea offers by the state. Defense counsel should also discuss and explain to the defendant those matters which trial judge will inquire about before accepting a plea.

(2)(ii) Same as prior Rrule 3.171(b), paragraph 2.

(d) Now embraces and renumbers former Rrule 3.171(c). The content of former Rrule 3.171(d) now appears as part of new Rrule 3.172.

RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere, the trial judge shall satisfy himselfbe satisfied that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.

(b) Open Court. All pleas shall be taken in open court, except that wherewhen good cause is shown a plea may be taken in camera.

(c) Determination of Voluntariness. Except wherewhen a defendant is not present for a plea, pursuant to the provisions of Rrule 3.180(c), 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 the following:

(i)(1) Tthe nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and

(ii)(2) Iif the defendant is not represented by an attorney, that hethe defendant has the right to be represented by an attorney at every stage of the proceeding against him or her and, if necessary, one will be appointed to represent him or her; and

(iii)(3) Tthat hethe defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that hethe defendant has the right to be tried by a jury and at that trial 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 be compelled to incriminate himself. or herself;

(iv)(4) Tthat if hethe defendant pleads guilty, or nolo contendere without express reservation of the right to appeal, he or she gives up histhe right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but he does not *264 impair histhe right to review by appropriate collateral attack.;

(v)(5) Tthat if hethe defendant pleads guilty or is adjudged guilty after a plea of nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he or she waives the right to a trial; and

(vi)(6) Tthat if hethe defendant pleads guilty or nolo contendere, the trial judge may ask himthe defendant questions about the offense to which he or she has pleaded, and if hethe defendant answers these questions under oath, on the record, and in the presence of counsel, histhe answers may later be used against him or her in a prosecution for perjury; and

(vii)(7) Tthe complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result.; and

(viii)(8) Tthat 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 Naturalization and 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.

(d) Acknowledgment by Defendant. Before the trial judge accepts a guilty or nolo contendere plea, hethe judge must determine that the defendant either (1) acknowledges his or her guilt, or (2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.

(e) Proceedings of Record. The proceedings at which a defendant pleads guilty or nolo contendere shall be of record.

(f) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this Rrule. Until that time, it may be withdrawn by either party without any necessary justification.

(g) Withdrawal of Plea When Judge Does Not Concur. ShouldIf the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn.

(h) Evidence. Except as otherwise provided in this Rrule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

(i) Prejudice. Failure to follow any of the procedures in this Rrule shall not render a plea void absent a showing of prejudice.

Committee Notes

1977 Adoption. New in Florida. In view of the Ssupreme Ccourt's emphasis on the importance of this procedure as set forth in Williams v. State, 316 So.2d 267 (Fla. 1975), the Ccommittee felt it appropriate to expand the language of former Rrule 3.170(j) (deleted) and establish a separate rule. Incorporates Federal Rule of Criminal Procedure 11(c), and allows for pleas of convenience as provided in North Carolina v. Alford, 91 S.Ct. 160 , 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970).

(a), (b) Mandatory record of voluntariness and factual predicate is proper responsibility of counsel as well as the court.

(c)(iv) This waiver of right to appeal is a change from the proposed amendments to the Rrules of Ccriminal Pprocedure now pending. A sentence if lawful is not subject to appellate review; a judgment, however, is. The Ccommittee was of the opinion that the proposed rule should be expanded to include a waiver of appeal from the judgment as well as the sentence. Waivers of appeal have been approved,. State v. Gibson, 68 N.J. 499 , 348 A.2d 769 (1975); United States Eex Rrel. Amuso v. LaValle, 291 F. Supp. 383 (E.D.N.Y. 1968), aff'd 427 F.2d 328 (2d Cir. 1970); State v. Gibson, 68 N.J. 499 , 348 A.2d 769 (1975); People v. Williams, 36 N.Y.2d 829 , 370 *265 N.Y.S.2d 904, 331 N.E.2d 684 (N.Y.Ct.App. 1975).

(vii) Requires the court to explain the plea agreement to the defendant, including conditions subsequent such as conditions of probation.

(e) Provides a readily available record (either oral or by use of standard forms) in all cases where a felony is charged.

(h) Rewording of federal Rrule 11 (3e)(6) of the Federal Rules of Criminal Procedure.

RULE 3.180. PRESENCE OF DEFENDANT

(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:

(1) Aat first appearance;

(2) Wwhen a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of Rrule 3.170(a);

(3) Aat any pre-trialpretrial conference;, unless waived by the Ddefendant in writing;

(4) Aat the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury;

(5) Aat all proceedings before the court when the jury is present;

(6) Wwhen evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury;

(7) Aat any view by the jury;

(8) Aat the rendition of the verdict; and

(9) Aat the pronouncement of judgment and the imposition of sentence.

(b) Defendant Absenting HimsSelf. If the defendant is present at the beginning of the trial and shall thereafter, during the progress of saidthe trial or before the verdict of the jury shall havehas been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of saidthe case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.

(c) Defendant May Be Tried in Absentia for Misdemeanors. Persons prosecuted for misdemeanors may, at their own request, by leave of court, be excused from attendance at any or all of the proceedings aforesaid.

(d) Presence of Corporation. A corporation may appear by counsel at all times and for all purposes.

Committee Notes

1968 Adoption. (a) The suggested rule is in great part a recopying of section 914.01, Florida Statutes:

In (3) the words "at the beginning of the trial" are recommended for inclusion to avoid questions arising as to the necessity for the defendant's presence at times other than upon trial, such as when the jury venire is ordered, etc.

Subdivision (a)(8) is not in the present statute. However, it is deemed advisable to include it, as the several sections of chapter 921, Florida Statutes, particularly section 921.07, appear to impliedly or expressly require the defendant's presence at such times.

(b) The statute and the suggested rule make no distinction between capital and other cases. In all probability, however, were a person on trial for a capital case to escape during trial, a mistrial should be ordered if such person were not captured within a reasonable time.

(c) It is suggested that this language be used rather than the all-inclusive general language of the present statute as to misdemeanor cases.

(d) This provision does not appear in section 914.01, Florida Statutes, but it is a part of Federal Rule of Criminal Procedure 43. It is deemed useful to include it.

*266 1972 Amendment. Same as prior Rrule except (3) added to conform to Rrule 3.220(k); other sections subdivisions renumbered.

V. PRE-TRIALPRETRIAL MOTIONS AND DEFENSES

RULE 3.190. PRE-TRIALPRETRIAL MOTIONS

(a) Pre-Trial Motions iIn General. Every pre-trialpretrial motion and pleading in response to a motion shall be in writing and signed by the party making the motion or the attorney for the party. This requirement may be waived by the court for good cause shown. Each such motion or other pleading shall state the ground or grounds on which it is based. A copy shall be served on the adverse party's attorney before the time the original is filed. A certificate of service must accompany the filing of any such pleading.

(b) Motion to Dismiss.; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.

(c) Time for Moving to Dismiss. Unless the court grants him further time, the defendant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based upon fundamental grounds, every ground for a motion to dismiss whichthat is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(1) The defendant is charged with an offense for which hethe defendant has been pardoned; or.

(2) The defendant is charged with an offense of which hethe defendant has previously been placed in jeopardy; or.

(3) The defendant is charged with an offense for which hethe defendant has previously been granted immunity; or.

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

The facts on which such motion is based should be specifically alleged and the motion sworn to.

(d) Traverse or Demurrer. The Sstate may traverse or demur to a motion to dismiss whichthat alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the Sstate in suchthe traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under paragraphsubdivision (c)(4) of this rule shall be denied if the Sstate files a traverse whichthat with specificity denies under oath the material fact or facts alleged in the motion to dismiss. SuchThe demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

(e) Effect of Sustaining a Motion to Dismiss. If the motion to dismiss is sustained, the court may order that the defendant be held in custody or admitted to bail for a reasonable specified time pending the filing of a new indictment or information. If a new indictment or information is not filed within the time specified in the order, or within such additional time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless some other charge justifies a continuation in custody. If hethe defendant has been released on bail, hethe defendant and histhe sureties shall be exonerated; if money or bonds have been deposited as bail, such money or bonds shall be refunded.

(f) Order Dismissing. For the purpose of construing Ssection 924.07(1), Florida Statutes (1969), the statutory term "order *267 quashing" shall be taken and held to mean "order dismissing."

(g) Motion for Continuance.

(1) Definition. A continuance within the meaning of this rule is the postponement of a cause for any period of time.

(2) Cause. The court on motion of the Sstate or a defendant or upon its own motion may in its discretion for good cause shown grant a continuance.

(3) Time for Filing. A motion for continuance may be made only before or at the time the case is set for trial, unless good cause for failure to so apply is shown or unless the ground for the motion arose after the cause was set for trial.

(4) Certificate of Good Faith. A motion for continuance shall be accompanied by a certificate of the movant's counsel that the motion is made in good faith.

(5) Affidavits. The party applying for a continuance may file affidavits in support of histhe motion, and the adverse party may file counter-affidavits in opposition to the motion.

(h) Motion to Suppress Evidence in Unlawful Search.

(1) Grounds. A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because:

1.(A) Tthe property was illegally seized without a warrant, or;

2.(B) Tthe warrant is insufficient on its face, or;

3.(C) Tthe property seized is not that described in the warrant, or;

4.(D) Tthere was no probable cause for believing the existence of the grounds on which the warrant was issued,; or

5.(E) Tthe warrant was illegally executed.

(2) Contents of Motion. Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.

(3) Hearing. Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the defendant shall present evidence supporting histhe defendant's position, and the Sstate may offer rebuttal evidence.

(4) Time for Filing. The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.

(i) Motion to Suppress a Confession or Admissions Illegally Obtained.

(1) Grounds. UponOn motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.

(2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.

(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.

(j) Motion to Take Deposition to Perpetuate Testimony.

(1) After an indictment or information upon which a defendant is to be tried is filed, the defendant or the Sstate may apply for an order to perpetuate testimony. The application shall be verified or supported by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that histhe witness's testimony is material, and that it is necessary to take histhe deposition to prevent a failure of justice. The court shall order a commission to be issued to take the deposition of the witnesses to be used in the trial and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the *268 same time and place. If the application is made within ten10 days before the trial date, the court may deny the application.

(2) If the defendant or the Sstate desires to perpetuate the testimony of a witness living in or out of the Sstate whose testimony is material and necessary to the case, the same proceedings shall be followed as provided in the preceding subdivision, but the testimony of the witness may be taken before an official court reporter, transcribed by himthe reporter, and filed in the trial court.

(3) If the deposition is taken on the application of the Sstate, the defendant and histhe defendant's attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep himthe defendant in the presence of the witness during the examination. A defendant not in custody may be present at the examination, but histhe failure to appear after notice and tender of expenses shall constitute a waiver of the right to be present. The Sstate shall pay to the defendant's attorney and to a defendant not in custody the expenses of travel and subsistence for attendance at the examination. The Sstate shall make available to the defendant for his examination and use at the deposition any statement of the witness being deposed that is in the possession of the Sstate and that the Sstate would be required to make available to the defendant if the witness were testifying at trial.

(4) The application and order to issue the commission may be made either in term time or in vacation. The commission shall be issued at a time to be fixed by the court.

(5) Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution, and return of the commission, and the opening of the depositions in civil actions shall apply in criminal cases.

(6) No deposition shall be used or read into the evidence when the attendance of the witnesses can be procured. If it shall appear to the court determines that any person whose deposition has been taken has absented himself byis absent because of procurement, inducement, or threats of any person on behalf of the Sstate or of the defendant or of any person on histhe defendant's behalf, the depositions shall not be read in evidence on behalf of the defendant.

Committee Notes

1968 Adoption. (a) New; devised by committee.

(b) Substantially the same as section 909.02, Florida Statutes, except changes name of "motion to quash" to "motion to dismiss." This conforms to the terminology of the Federal Rules of Criminal Procedure. The statute authorizing the state to appeal from certain orders, section 924.07, Florida Statutes, should be amended by substituting the words "motion to dismiss" for "motion to quash."

(c) Combines the substance of sections 909.01 and 909.06, Florida Statutes. Subdivision (4) affords a new remedy to an accused. Although there is now a conclusive presumption of probable cause once an indictment or information is filed (see Sullivan v. State, 49 So.2d 794 (Fla. 1951)), it is felt that this rule is necessary. Primarily, this procedure will permit a pretrial determination of the law of the case when the facts are not in dispute. In a sense, this is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to a subsequent prosecution.

(d) New; based on Marks v. State, 115 Fla. 497 , 155 So. 727 (1934), and what is generally regarded as the better practice. Hearing provision based on federal rule 41(e).

(e) Combines federal rule 12(b)(5) and section 909.05, Florida Statutes. With reference to the maximum time that a defendant will be held in custody or on bail pending the filing of a new indictment or information, the trial court is given discretion in setting such time as to both the indictment and information. This proposal differs from section 909.05, Florida Statutes, with reference to the filing of a new *269 indictment in that the statute requires that the new indictment be found by the same grand jury or the next grand jury having the authority to inquire into the offense. If the supreme court has the authority to deviate from this statutory provision by court rule, it seems that the trial court should be granted the same discretion with reference to the indictment that it is granted concerning the information. The statute is harsh in that under its provisions a person can be in custody or on bail for what may be an unreasonable length of time before a grand jury is required to return an indictment in order that the custody or bail be continued.

(g)(1) This subdivision is almost the same as section 916.02(1), Florida Statutes.

(g)(2) This subdivision is almost the same as section 916.02(2), Florida Statutes.

(g)(3) This subdivision is almost the same as section 916.03, Florida Statutes.

(g)(4) This subdivision rewords a portion of section 916.04, Florida Statutes.

(g)(5) This subdivision rewords section 916.07, Florida Statutes.

(h) Same as federal rule 41(e) as to the points covered.

(i) This rule is based on 38-144-11 of the Illinois Code of Criminal Procedure and federal rule 41(e).

(j) This subdivision rewords and adds to federal rule 14. It covers the subject matter of section 918.02, Florida Statutes.

(k) This rule is almost the same as federal rule 13, with provision added for trial by affidavit.

( l ) Substantially same as section 916.06, Florida Statutes, with these exceptions: application cannot be made until indictment, information, or trial affidavit is filed; application must be made at least 10 days before trial; oral deposition in addition to written interrogatories is permissible.

1972 Revision Amendment. Subdivision (h) is amended to require the defendant to specify the factual basis behind the grounds for a motion to suppress evidence. Subdivision (1l) is amended to permit the Sstate to take depositions under the same conditions that the defendant can take them. Former sectionssubdivisions (j) and (k) transferred to Rrules 3.150, 3.151, and 3.152. SectionsSubdivisions ( l ) and (m)

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