In Re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE

Supreme Court of Florida
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No. SC16-640
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL
PROCEDURE.

[November 23, 2016]

PER CURIAM.

This matter is before the Court for consideration of proposed amendments to

the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a),

Fla. Const.

The Criminal Court Steering Committee (Steering Committee) has filed a

petition proposing amendments to Florida Rules of Criminal Procedure 3.800

(Correction, Reduction, and Modification of Sentences), 3.801 (Correction of Jail

Credit), and 3.9875 (Motion for Jail Credit). The Steering Committee published its

proposals for comment prior to filing them with the Court. No comments were

received by the Steering Committee regarding its proposals. After they were filed,

the Court republished the Steering Committee’s proposals for comment. No

comments were filed.
 Having considered the Steering Committee’s petition, we adopt these

straightforward amendments to the Florida Rules of Criminal Procedure as

proposed by the Steering Committee. The amendments collectively make clear

that jail credit matters can be litigated in either a motion filed under rule 3.800(b)

while a defendant’s direct appeal is pending, or in a motion filed under rule 3.801

after a defendant’s sentence has become final.

Accordingly, the Florida Rules of Criminal Procedure are hereby amended

as set forth in the appendix to this opinion. New language is underscored; deleted

language is struck through. The committee notes are offered as an 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.

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; Meredith Charbula, Past Chair, Criminal
Procedure Rules Committee, Jacksonville, Florida; Judge Jay Paul Cohen, Chair,
Criminal Court Steering Committee, Daytona Beach, Florida; John F. Harkness,
Jr., Executive Director, and Heather Savage Telfer, Bar Staff Liaison, The Florida
Bar, Tallahassee, Florida; and Barton Neil Schneider, Office of the State Courts
Administrator, Tallahassee, Florida,

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for Petitioner

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 Appendix

RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION
OF SENTENCES

(a) [No Change]

(b) Motion to Correct Sentencing Error. A motion to correct any
sentencing error, including an illegal sentence or incorrect jail credit, may be filed
as allowed by this subdivision. This subdivision shall not be applicable to those
cases in which the death sentence has been imposed and direct appeal jurisdiction
is in the Ssupreme Ccourt under article V, section 3(b)(1) of the Florida
Constitution. The motion must identify the error with specificity and provide a
proposed correction. A response to the motion may be filed within 15 days, either
admitting or contesting the alleged error. Motions may be filed by the state under
this subdivision only if the correction of the sentencing error would benefit the
defendant or to correct a scrivener’s error.

(1)-(2) [No Change]

(c) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

RULE 3.801. CORRECTION OF JAIL CREDIT

(a) Correction of Jail Credit. A court may correct a final sentence that
fails to allow a defendant credit for all of the time he or she spent in the county jail
before sentencing as provided in section 921.161, Florida Statutes.

(b) Time Limitations. No motion shall be filed or considered pursuant to
this rule if filed more than 1 year after the sentence becomes final. For sentences
imposed prior to July 1, 2013, a motion under this rule may be filed on or before
July 1, 2014.

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

(1) a brief statement of the facts relied on in support of the motion;

(2) the dates, location of incarceration, and total time for credit
already provided;

(3) the dates, location of incarceration, and total time for credit the
defendant contends was not properly awarded;

(4) whether any other criminal charges were pending at the time of
the incarceration noted in subdivision (c)(3), and if so, the location, case number,
and resolution of the charges; and

(5) whether the defendant waived any county jail credit at the time
of sentencing, and if so, the number of days waived.

(d) Successive Motions. No successive motions for jail credit will be
considered.

(e) Incorporation of Portions of Florida Rule of Criminal Procedure
3. 850. The following subdivisions of Florida Rule of Criminal Procedure 3.850
apply to proceedings under this rule: 3.850(e), (f), (j), (k), and (n).

Court Commentary

2013 Adoption. All jail credit issues must be handled pursuant to this rule.
The rule is intended to require that jail credit issues be dealt with promptly, within
1 year of the sentence becoming final. No successive motions for jail credit will be
allowed.

2016 Amendment. The 2016 amendment clarifies that rule 3.801 applies to
final sentences. Prior to the sentence being final, defendants may avail themselves
of all appropriate proceedings to litigate a jail credit issue, including direct appeal
if properly preserved, a motion for rehearing, or a motion pursuant to rule 3.800(b).

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RULE 3.9875. MOTION FOR JAIL CREDIT

MODEL FORM FOR USE IN MOTIONS FOR
CORRECTION OF JAIL CREDIT PURSUANT TO
FLORIDA RULE OF CRIMINAL PROCEDURE 3.801

In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida

State of Florida )
)
v. )
)
,)
(your name) )
)
,)

MOTION FOR CORRECTION OF JAIL CREDIT

INSTRUCTIONS FOR FILING MOTION FOR JAIL CREDIT
PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.801
READ CAREFULLY

1. The attached motion is the only type of motion you are permitted to file to obtain
in-state jail credit omitted from your final sentence. It may not be used to obtain out-of-state jail
credit.

2. You must file this motion within 1 year of the date your sentence became final.

3. Only 1 motion may be filed to obtain jail credit omitted from your final sentence.
No successive motion for jail credit from a final sentence will be considered.

4. You must complete the attached motion by filling in the blank spaces.

5. You must tell the truth and sign the attached motion. If you make a false
statement of a material fact in your motion, you may be prosecuted for perjury.

6. You must file the attached motion in the court that imposed the sentence on which
the jail credit was omitted.

7. You are not required to pay a filing fee to file the attached motion.

MOTION FOR CORRECTION OF JAIL CREDIT

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 (hereinafter “Ddefendant”), in pro se fashion, respectfully moves this
Honorable Court for jail credit pursuant to section 921.161(1), Florida Statutes, and Florida Rule
of Criminal Procedure 3.801. In support of the motion, the Ddefendant states the following in a
question-and-answer format:

1. What is/are the FACT(S) that was/were omitted from any sentence(s) imposed in
this case that entitle you to jail credit?

2. Is this the first motion you have filed requesting this jail credit?

If you answered NO, how many prior motions have you filed?

As to EACH motion, what was the result?

3. If you have already received jail credit on any sentence(s) imposed in this case,
what was the total time for jail credit on each sentence?

What dates did this jail credit cover?

Where were you incarcerated?

4. What is the total time for jail credit that you are requesting in this motion that you
have NOT YET RECEIVED on any sentence(s) imposed in this case?

What dates does this jail credit cover?

Where were you incarcerated?

Did you have any other charge(s) pending during this time frame?

If the answer is YES, as to EACH charge, what is the case number, name of county, and
resolution of charge(s)?

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 5. Was your sentence the result of a trial or plea?

If your sentence was the result of a plea:

Was it a negotiated plea with the Sstate or was it an open plea to the Ccourt?

Did you sign a written plea agreement?

Did you sign a written rights waiver form?

Did you waive any county jail credit as part of the plea?

If so, how many days did you agree to waive?

6. Under penalties of perjury and administrative sanctions from the Department of
Corrections, including forfeiture of gain time if this motion is found to be frivolous or made in
bad faith, I certify that I understand the contents of the foregoing motion, that the facts contained
in the motion are true and correct, and that I have a reasonable belief that the motion is timely
filed. I certify that this motion does not duplicate previous motions that have been disposed of by
the court. I further certify that I understand English and have read the foregoing motion or had
the motion read to me, or the foregoing motion was translated completely into a language which
I understand and read to me by .....(name)....., whose address is .....(address)....., and whose
certification of an accurate and complete translation is attached to this motion.

WHEREFORE, the Ddefendant respectfully moves the Ccourt to grant this motion for
days of additional jail credit, for a total of days of credit.

/s/
Name
DC#

Certificate of Mailing
(Must use Certificate of Mailing OR Certificate of Service)

I certify that I placed this document in the hands of .....(here insert name of institution
official)..... for mailing to .....(here insert name or names and addresses used for service)..... on
.....(date)......

/s/
Name
Address
DC#

Certificate of Service
(Must use Certificate of Mailing OR Certificate of Service)

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 I certify that the foregoing document has been furnished to .....(here insert name or
names, addresses used for service and mailing addresses)..... by (e-mail) (delivery) (mail) (fax)
on .....(date)......

/s/
Attorney

Certificate of an Accurate and Complete Translation
(To be used if translation of the motion was necessary.)

I certify that a complete and accurate translation of this motion was provided to the
Ddefendant in this case on .....(date)......

/s/
Name
Address

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