In Re: Amendments to the Florida Rules of Criminal Procedure - 2021 Fast-Track Report ( 2021 )


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  •           Supreme Court of Florida
    ____________
    No. SC21-1091
    ____________
    IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL
    PROCEDURE—2021 FAST-TRACK REPORT.
    October 28, 2021
    PER CURIAM.
    This matter is before the Court for consideration of proposed
    amendments to the Florida Rules of Criminal Procedure. See Fla.
    R. Gen. Prac. & Jud. Admin. 2.140(e). We have jurisdiction.
    See art. V, § 2(a), Fla. Const.
    The Florida Bar’s Criminal Procedure Rules Committee
    (Committee) filed a fast-track report proposing amendments to the
    following Florida Rules of Criminal Procedure (rules) in response to
    recent legislation: 3.693 (Petition to Seal or Expunge; Human
    Trafficking), 3.986 (Forms Related to Judgment and Sentence), and
    3.9895 (Human Trafficking: Sworn Statement; Petition; and Order
    to Expunge or Seal Records). Having considered the proposed
    amendments, the Court hereby amends rule 3.693 as proposed by
    the Committee, and rules 3.986 and 3.9895, with the slight
    modification to the proposed amendments as discussed below.
    First, rule 3.693(a)(1)(A) is amended to remove the requirement
    that a human trafficking victim petitioner swear that there are no
    other pending petitions to expunge or seal pending in any other
    courts. Additionally, subdivision (e), which required a petitioner to
    pay for certified copies related to the petition to expunge or seal
    unless indigent, is deleted. These amendments bring the rule into
    conformity with the recent legislative changes to section 943.0583,
    Florida Statutes, which was amended to delete the requirement in
    subsection (6)(a) that a petitioner swear that no other petition to
    expunge or seal is pending before any court and to include language
    in subsection (2) stating that a clerk of court may not charge any
    type of fee related to the petition for expungement filed under this
    section. See ch. 2021-189, § 3, Laws of Fla.
    Next, the fingerprint certifications in rule 3.986 are amended
    to mirror the updated statutory language of section 921.241(3)(a)-
    (b), Florida Statutes. See ch. 2021-230, §§ 9-11, Laws of Fla. The
    new language allows for digital fingerprinting and does not require
    that fingerprints be taken in the presence of or be certified by a
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    judge. Instead, a court officer, employee of the court, or employee
    of a criminal justice agency may manually take or electronically
    capture the defendant’s fingerprints and make such certification.
    Finally, rule 3.9895(b) (Sworn Statement in Support of
    Petition; Human Trafficking Victim) is amended to remove the final
    sentence of the sworn statement, which required a petitioner to
    indicate whether there are other petitions to expunge pending
    before any court. Additionally, rule 3.9895(c) (Order to Expunge;
    Human Trafficking Victim) is amended to remove reference to the
    petitioner paying the costs of certified copies. These amendments
    bring the rule’s language into conformity with the recent legislative
    changes to section 943.0583, Florida Statutes, which deletes
    reference to the petitioner swearing that no other petition to
    expunge or seal is pending before any court and prohibits the clerk
    of court from charging fees related to the petition. See ch. 2021-
    189, § 3, Laws of Fla.
    Accordingly, we amend the Florida Rules of Criminal
    Procedure as reflected in the appendix to this opinion. New
    language is indicated by underscoring; deletions are indicated by
    struck-through type. The amendments to the rules shall become
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    effective immediately. Because the amendments were not published
    for comment previously, interested persons shall have seventy-five
    days from the date of this opinion in which to file comments with
    the Court. 1
    It is so ordered.
    CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
    COURIEL, and GROSSHANS, JJ., concur.
    THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
    THE EFFECTIVE DATE OF THESE AMENDMENTS.
    1. All comments must be filed with the Court on or before
    January 11, 2022, with a certificate of service verifying that a copy
    has been served on the Committee Chair, Alan Scott Apte, P.O. Box
    2286, Orlando, Florida 32802-2286, alan@florida-mediate.com, and
    on the Bar Staff Liaison to the Committee, Mikalla Andies Davis,
    651 E. Jefferson Street, Tallahassee, Florida 32399-2300,
    midavis@floridabar.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 February 1, 2022, 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 (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 may be, but is not required to be,
    filed via the Portal. 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.
    -4-
    Original Proceeding – Florida Rules of Criminal Procedure
    Alan S. Apte, Chair, Criminal Procedure Rules Committee, The
    Florida Bar, Orlando, Florida, Joshua E. Doyle, Executive Director,
    and Mikalla Andies Davis, Staff Liaison, The Florida Bar,
    Tallahassee, Florida,
    for Petitioner
    -5-
    Appendix
    RULE 3.693.      PETITION TO SEAL OR EXPUNGE; HUMAN
    TRAFFICKING
    (a)   Requirements of Petition.
    (1)   [No Change]
    (A) the petitioner’s sworn statement attesting that
    the petitioner is eligible for such an expunction to the best of his or
    her knowledge or belief and does not have any other petition to
    expunge or any petition to seal pending before any court; and
    (B)   [No Change]
    (b) – (d) [No Change]
    (e) Costs. Petitioner shall bear all costs of certified copies
    unless petitioner is indigent.
    Committee Notes
    [No Change]
    -6-
    RULE 3.986.          FORMS RELATED TO JUDGMENT AND
    SENTENCE
    (a)   [No Change]
    (b)   Form for Judgment.
    Probation Violator
    Community Control Violator
    Retrial
    Resentence
    In the Circuit Court,
    Judicial Circuit, in and for
    County, Florida
    Division
    Case Number
    State of Florida
    v.
    Defendant
    JUDGMENT
    The defendant,                 , being personally before this court
    represented by              , the attorney of record, and the state represented by,
    _____________, and having
    been tried and found guilty by jury/by court of the following
    crime(s)
    entered a plea of guilty to the following crime(s)
    entered a plea of nolo contendere to the following crime(s)
    Offense             Degree
    Statute             of           Case        OBTS
    Count        Crime       Number(s)           Crime        Number      Number
    -7-
    and no cause being shown why the defendant should not be
    adjudicated guilty, IT IS ORDERED THAT the defendant is hereby
    ADJUDICATED GUILTY of the above crime(s).
    and being a qualified offender pursuant to section 943.325, Florida
    Statutes, the defendant shall be required to submit DNA samples
    as required by law.
    and good cause being shown; IT IS ORDERED THAT
    ADJUDICATION OF GUILT BE WITHHELD.
    DONE AND ORDERED in open court in            County, Florida, on
    .....(date)......
    Judge
    State of Florida
    v.
    Defendant                                  Case Number
    FINGERPRINTS OF DEFENDANT
    R. Thumb           R. Index         R. Middle         R. Ring      R. Little
    L. Thumb           L. Index         L. Middle         L. Ring      L. Little
    -8-
    Fingerprints taken by:
    (Name)                    (Title)
    I HEREBY CERTIFY that the above and foregoing fingerprints on this
    judgment are the fingerprints of the defendant, __(name)_____, and that they
    were placed thereon by the defendant in my presence in open court this date
    the ____ day of ____, ...(year)....
    [OR]
    I HEREBY CERTIFY that the digital fingerprint record associated with
    Transaction Control Number ______ contains the fingerprints of the defendant,
    _(name)_____, which were electronically captured from the defendant in my
    presence this the ____day of ___, ...(year).....
    JudgeCourt Officer/Court
    Employee/Criminal Justice Agency
    Employee
    (c) – (g)   [No Change]
    -9-
    RULE 3.9895 HUMAN TRAFFICKING: SWORN STATEMENT;
    PETITION; AND ORDER TO EXPUNGE OR SEAL
    RECORDS
    (a)       [No Change]
    (b) Sworn Statement in Support of Petition; Human
    Trafficking Victim.
    In the Circuit Court of the
    Judicial Circuit,
    in and for
    County, Florida
    Case No.:
    Division
    State of Florida,                 )
    )
    Plaintiff,                   )
    )
    v.                                )
    )
    , )
    )
    Defendant/Petitioner         )
    )
    SWORN STATEMENT/HUMAN TRAFFICKING VICTIM
    State of Florida
    County of
    I, .....(name of defendant/petitioner)....., am the defendant/petitioner in
    the above-styled cause and I do hereby swear or affirm that:
    1.   I fully understand the meaning of all of the terms of this sworn
    statement.
    2.    I have been the victim of human trafficking, as discussed in
    section 787.06, Florida Statutes, and have committed, or was reported to have
    - 10 -
    committed, an offense, other than those offenses listed in section
    775.084(1)(b)1, Florida Statutes, which was committed, or reported to have
    been committed, as a part of a human trafficking scheme of which I was the
    victim or at the direction of an operator of the scheme.
    3.    I was arrested and/or convicted on .....(date(s))....., by .....(arresting
    agency and/or name of prosecuting authority)......
    4.      I am eligible for the relief requested, to the best of my knowledge
    and belief, and .....(do or do not)..... have any other petition to expunge or seal
    pending before any court.
    Petitioner
    Sworn to and subscribed before me on .....(date)......
    NOTARY PUBLIC, or other person
    authorized to administer an oath
    Printed, typed, or stamped
    commissioned name of Notary
    Public
    Personally known .......... or produced identification ...........
    Type of identification produced ....................
    My commission expires:
    (c)      Order to Expunge; Human Trafficking Victim.
    In the Circuit Court of the
    Judicial Circuit,
    in and for
    County, Florida
    Case No.:
    Division
    State of Florida,                  )
    )
    Plaintiff,                      )
    - 11 -
    )
    v.                            )
    )
    ____________________________, )
    )
    Defendant/Petitioner       )
    )
    ORDER TO EXPUNGE, HUMAN TRAFFICKING VICTIM,
    UNDER SECTION 943.0583, FLORIDA STATUTES,
    AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.693
    THIS CAUSE, having come on to be heard before me this date upon a
    petition to expunge certain records of the petitioner’s arrest and/or conviction
    on .....(date(s))....., by .....(arresting agency and/or name of prosecuting
    authority)....., for .....(charges and/or offenses)....., and the court having heard
    argument of counsel and being otherwise fully advised in the premises, the
    court hereby finds the following:
    The petitioner has been the victim of human trafficking, as discussed in
    section 787.06, Florida Statutes, and has committed an offense, or is reported
    to have committed, other than those offenses listed in section 775.084(1)(b)1,
    Florida Statutes, which was committed, or reported to have been committed, as
    a part of a human trafficking scheme of which he/she was the victim, or at the
    direction of an operator of the scheme. A conviction expunged under this
    section is deemed to have been vacated due to a substantive defect in the
    underlying criminal proceedings.
    Whereupon it is
    ORDERED AND ADJUDGED that the petition to expunge is granted. All
    court records pertaining to the above-styled case shall be sealed in accordance
    with the procedures set forth in Florida Rule of Criminal Procedure 3.693; and
    it is further
    ORDERED AND ADJUDGED that the clerk of this court shall forward a
    certified copy of this order to the (check one) ..... state attorney, ..... special
    prosecutor, ..... statewide prosecutor, ..... .....(arresting agency)....., and the
    Sheriff of ......................... County, who will comply with the procedures set
    forth in section 943.0583, Florida Statutes, and appropriate regulations of the
    Florida Department of Law Enforcement, and who will further forward a copy of
    this order to any agency that their records reflect has received the instant
    criminal history record information; and it is further
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    ORDERED AND ADJUDGED that .....(arresting agency)..... shall expunge
    all information concerning indicia of arrest, conviction, or criminal history
    record information regarding the arrest, conviction, or alleged criminal activity
    to which this petition pertains in accordance with the procedures set forth in
    section 943.0583, Florida Statutes, and Florida Rule of Criminal Procedure
    3.693.
    All costs of certified copies involved herein are to be borne by the
    ....................
    DONE AND ORDERED in Chambers at .................... County, Florida, on
    .....(date)......
    Circuit Court Judge
    Committee Notes
    [No Change]
    - 13 -
    

Document Info

Docket Number: SC21-1091

Filed Date: 10/28/2021

Precedential Status: Precedential

Modified Date: 10/28/2021