In Re: Amendments to the Florida Rules of Criminal Procedure – Corrected Opinion

Supreme Court of Florida
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No. SC16-1453
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IN RE: AMENDMENTS TO THE
FLORIDA RULES OF CRIMINAL PROCEDURE.

[September 15, 2016]
CORRECTED OPINION

PER CURIAM.

In response to recent legislation, The Florida Bar’s Criminal Procedure

Rules Committee (Committee) has filed an out-of-cycle, fast-track report

proposing amendments to the Florida Rules of Criminal Procedure. See Fla. R.

Jud. Admin. 2.140(e). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes new rule 3.181 (Notice to Seek Death Penalty) and

amendments to existing rules 3.202 (Expert Testimony of Mental Mitigation

During Penalty Phase of Capital Trial: Notice and Examination by State Expert);

3.220 (Discovery); and 3.780 (Sentencing Hearing for Capital Cases). The Board

of Governors of The Florida Bar unanimously approved the amendments.
 New rule 3.181 and the amendments to rules 3.202(a) (Notice of Intent to

Seek Death Penalty) and 3.780(a) (Evidence) implement chapter 2016-13, section

2, Laws of Florida.1 Chapter 2016-13, section 2, amended section 782.04, Florida

Statutes (2015), to provide notice requirements the State must follow when seeking

the death penalty. Consistent with the statutory requirements, new rule 3.181

requires the prosecutor to give the defendant notice of intent to seek the death

penalty and to file the notice with the court within 45 days after arraignment. The

notice must contain a list of the aggravating factors the prosecutor intends to prove.

The Committee proposes removing language from existing rule 3.202(a) in order

to avoid possible conflict with the statute and new rule, and adding a reference to

new rule 3.181 to rule 3.780(a).

According to the report, the amendments to rule 3.220(h)(4) (Depositions of

Sensitive Witnesses) are in response to chapter 2016-199, section 1, Laws of

Florida,2 and include changing the maximum age of sensitive witnesses whose

depositions must be videotaped, unless otherwise ordered by the court, from 16 to

18. See ch. 2016-199, § 1, Laws of Fla. (amending section 92.53, Fla. Stat.

(2015)). The Committee also proposes adding witnesses with an intellectual

1. Chapter 2016-13, Laws of Florida, became effective March 7, 2016. See
ch. 2016-13, § 7, Laws of Fla.

2. Chapter 2016-199, Laws of Florida, became effective July 1, 2016. See
ch. 2016-199, § 6, Laws of Fla.

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disability to the category of sensitive witnesses covered by the rule. See § 92.53,

Fla. Stat. (2016).

After considering the Committee’s proposals and the relevant legislation, we

amend the Florida Rules of Criminal Procedure as proposed and reflected in the

appendix to this opinion. New language is indicated by underscoring; deletions are

indicated by struck-through type. The committee notes are offered for explanation

only and are not adopted as an official part of the rules. The amendments shall

become effective immediately upon the release of this opinion. Because the

amendments were not published for comment prior to their adoption, interested

persons shall have sixty days from the date of this opinion in which to file

comments with the Court.3

3. All comments must be filed with the Court on or before November 14,
2016, with a certificate of service verifying that a copy has been served on the
Committee Chair, Mr. H. Scott Fingerhut, 500 S. Dixie Hwy., Suite 301, Coral
Gables, Florida 33146-2768, hsfpa@aol.com, hsf@hscottfingerhut.com,
fingerhut@fiu.edu, and on the Bar Staff Liaison to the Committee, Heather Telfer,
651 E. Jefferson Street, Tallahassee, Florida 32399-2300, htelfer@flabar.org, as
well as a separate request for oral argument if the person filing the comment
wishes to participate in oral argument, which may be scheduled in this case. The
Committee Chair has until December 5, 2016, to file a response to any comments
filed with the Court. If filed by an attorney in good standing with The Florida Bar,
the comment must be electronically filed via the Florida Courts E-Filing Portal in
accordance with In re Electronic Filing in the Supreme Court of Florida via the
Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013).
If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment
must be electronically filed via e-mail in accordance with In re Mandatory
Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-
84 (Sept. 13, 2004). Electronically filed documents must be submitted in

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 It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Criminal Procedure

H. Scott Fingerhut, Chair, Criminal Procedure Rules Committee, H. Scott
Fingerhut, P.A., Coral Gables, Florida; John F. Harkness, Jr., Executive Director,
and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee,
Florida,

for Petitioner

Microsoft Word 97 or higher. Any person unable to submit a comment
electronically must mail or hand-deliver the originally signed comment to the
Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee,
Florida 32399-1927; no additional copies are required or will be accepted.

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 APPENDIX

RULE 3.181. NOTICE TO SEEK DEATH PENALTY

In a prosecution for a capital offense, if the prosecutor intends to seek the
death penalty, the prosecutor must give notice to the defendant of the state’s intent
to seek the death penalty. The notice must be filed with the court within 45 days of
arraignment. The notice must contain a list of the aggravating factors the state
intends to prove and has reason to believe it can prove beyond a reasonable doubt.
The court may allow the prosecutor to amend the notice upon a showing of good
cause.

Committee Note
2016 Amendment. This is a new rule, in response to legislation, and
intended to complement Florida Rules of Criminal Procedure 3.202 (Expert
Testimony of Mental Mitigation During Penalty Phase of Capital Trial; Notice and
Examination by State Expert) and 3.780 (Sentencing Hearing for Capital Cases).

RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION
DURING PENALTY PHASE OF CAPITAL TRIAL:; NOTICE AND
EXAMINATION BY STATE EXPERT

(a) Notice of Intent to Seek Death Penalty. The provisions of this rule
apply only in those capital cases in which the state gives timely written notice of its
intent to seek the death penalty within 45 days from the date of arraignment.
Failure to give timely written notice under this subdivision does not preclude the
state from seeking the death penalty.

(b) – (e) [No Change]

Committee Note
2016 Amendment. This is a new rule, in response to legislation, and
intended to complement Florida Rules of Criminal Procedure 3.181 (Notice to
Seek Death Penalty) and 3.780 (Sentencing Hearing for Capital Cases).

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RULE 3.220. DISCOVERY

(a) [No Change]

(b) Prosecutor’s Discovery Obligation.

(1) Within 15 days after service of the Notice of Discovery, the
prosecutor shall serve a written Discovery Exhibit which shall disclose to the
defendant and permit the defendant to inspect, copy, test, and photograph the
following information and material within the state’s possession or control, except
that any property or material that portrays sexual performance by a child or
constitutes child pornography may not be copied, photographed, duplicated, or
otherwise reproduced so long as the state attorney makes the property or material
reasonably available to the defendant or the defendant’s attorney:

(A) – (K) [No Change]

(L) any tangible paper, objects, or substances in the
possession of law enforcement that could be tested for DNA; and

(M) [No Change]

(2) – (4) [No Change]

(c) – (g) [No Change]

(h) Discovery Depositions.

(1) – (3) [No Change]

(4) Depositions of Sensitive Witnesses. Depositions of children
under the age of 1618 shall be videotaped unless otherwise ordered by the court.
The court may order the videotaping of a deposition or the taking of a deposition of
a witness with fragile emotional strength, or an intellectual disability as defined in
section 393.063, Florida Statutes, to be in the presence of the trial judge or a
special magistrate.

(5) – (8) [No Change]

(i) – (o) [No Change]

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 Committee Notes
[No Change]

Court Commentary
[No Change]

RULE 3.780. SENTENCING HEARING FOR CAPITAL CASES

(a) Evidence. In all proceedings based on section 921.141, Florida
Statutes, the state and defendant will be permitted to present evidence of an
aggravating or mitigating nature, consistent with the requirements of the statute
and the notice requirements of Florida Rule of Criminal Procedure 3.181. Each
side will be permitted to cross-examine the witnesses presented by the other side.
The state will present evidence first.

(b) – (c) [No Change]

Committee Notes
[No Change]

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