Proposed amendments to the Rules of Criminal Procedure.

The Florida Supreme Court's Criminal Court Steering Committee and the Subcommittee on Postconviction Relief have filed a joint petition to amend Rules of Criminal Procedure 3.170 (Pleas), 3.800 (Correction, Reduction, and Modification of Sentences), 3.850 (renamed Motion for Postconviction Relief from Judgment or for Correction of Sentence), and 3.851 (Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direction Appeal) and to create new Rules of Criminal Procedure 3.801 (Correction of Jail Credit). The court invites all interested persons to comment on the proposed amendments which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before December 1, 2011, with a certificate of service verifying that a copy has been served on Judge Kevin Emas, Steering Committee Chair, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami 33175, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument scheduled in this case for February 9, 2012. The committee chair has until December 22 to file a response to any comments filed with the court. Electronic copies of all comments also must be filed in accordance with the court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE, CASE NO. 11-1679.

RULE 3.170. PLEAS

(a)-(k) [No Change]

(l) [begin strikethrough]Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.[end strikethrough]

[begin strikethrough](m)[end strikethrough] Motion to Withdraw the Plea after Drug Court Transfer. A defendant who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, pursuant to section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the drug court treatment program.

Committee Notes

[No Change]

Court Commentary

2011 Amendment. Subdivision (l) (Motion to Withdraw Plea after Sentencing) was deleted as recommended by the Postconviction Rules Workgroup in its 2006 report, as voted by the Criminal Procedure Rules Committee in their June 2008 Annual Meeting, and as recommended by the Criminal Court Steering Committee and the Postconviction Relief Subcommittee in 2011. This deletion necessitated changing previous subdivision (m) (Motion to Withdraw the Plea after Drug Court Transfer) to subdivision (l).

RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES

(a) [begin strikethrough]Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal. All orders denying motions under this subdivision shall include a statement that the movant has the right to appeal within 30 days of rendition of the order.[end strikethrough] [Repealed 2011-reserved.]

(b) Motion to Correct Sentencing Error. A motion to correct a [begin strikethrough]any sentencing[end strikethrough] prejudicial error, [begin strikethrough]including an illegal sentence[end strikethrough] in a written sentence other than jail credit, because the written sentence 1) contains a term or condition that was required to be announced at the sentencing hearing and was not, 2) contains a term or condition that conflicts with the oral pronouncement, or 3) contains an error, that is conclusively revealed without need for an evidentiary hearing or of examination of anything other than the court file in the case, may be filed as allowed by this subdivision. [begin strikethrough]This subdivision shall not be applicable to those cases in which the death sentence has been imposed and direct appeal jurisdiction is in the Supreme Court under article V, section 3(b)(1) of the Florida Constitution.[end strikethrough] The motion must identify the error with specificity and provide a proposed correction. [begin strikethrough]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.[end strikethrough] Issues regarding jail credit may only be raised pursuant to rule 3.801.

(1) Motion Before Appeal. [begin strikethrough]During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.[end strikethrough] A defendant or the state may file a motion to correct a sentencing error before the expiration of their respective time periods for the filing of a notice of appeal of a sentence under Florida Rule of Appellate Procedure 9.140. The state may file a motion under this subdivision only if the trial court failed to impose a statutorily required mandatory minimum sentence, to correct a scrivener's error, or if it benefits the defendant. During the time frame noted above, the State may file a motion even if either party has filed a notice of appeal. However, in this event, the State must comply with the provisions of subdivision (b)(2) of this rule.

(A) This motion shall stay rendition under Florida Rule of Appellate Procedure 9.020(h).

(B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold a calendar call no later than 20 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 20 days from the date of the calendar call. Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied. A party may file a motion for rehearing of any order entered under subdivisions [begin strikethrough](a) and[end strikethrough] (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.

(2) Motion Pending Appeal. If an appeal is pending, a defendant [begin strikethrough]or the state[end strikethrough] may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).

(A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the [begin strikethrough]movant[end strikethrough] defendant in the trial court, trial counsel will represent the [begin strikethrough]movant[end strikethrough] defendant on the motion under Florida Rule of Appellate Procedure 9.140(d). [begin strikethrough]If the state is the movant, trial counsel will represent the defendant unless appellate counsel for the defendant notifies trial counsel and the trial court that he or she will represent the defendant on the state's motion.[end strikethrough]

(B)-(C) [No Change]

(c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed within 60 days after the imposition, or within 60 days after [begin strikethrough]receipt by the court[end strikethrough] the issuance of a the mandate [begin strikethrough]issued by the appellate court on affirmance of the judgment and/or[end strikethrough] in a direct appeal affirming the sentence [begin strikethrough]on an original appeal[end strikethrough], or within 60 days after [begin strikethrough]receipt by the court of a certified copy of[end strikethrough] the entry of an order of the appellate court dismissing [begin strikethrough]an original appeal from the judgment and/or[end strikethrough] direct appeal of a sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. If review is upon motion, the trial court shall have an additional 60 days or additional time as agreed by the parties to file an order ruling on the motion. This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.

Committee Notes

[No Change]

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