In Re: Amendments to Florida Rule of Criminal Procedure 3.851 and Florida Rule of Appellate Procedure 9.142

Supreme Court of Florida
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No. SC21-537
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IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL
PROCEDURE 3.851 AND FLORIDA RULE OF APPELLATE
PROCEDURE 9.142.
May 5, 2022
PER CURIAM.
This matter is before the Court for consideration of
amendments on the Court’s own motion to Florida Rule of Criminal
Procedure 3.851 (Collateral Relief After Death Sentence Has Been
Imposed and Affirmed on Direct Appeal) and Florida Rule of
Appellate Procedure 9.142 (Procedure for Review in Death Penalty
Cases). 1 Upon consideration of the comments and oral argument in
this case, we amend these rules to reflect, among other things, that
a capital defendant may waive pending postconviction proceedings
but not postconviction counsel, and that a subsequent
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
postconviction motion is allowable to raise certain specified claims
after a waiver of pending postconviction proceedings.
Florida Rule of Criminal Procedure 3.851(b)(6) unequivocally
provides that a capital defendant may not represent him or herself
in state postconviction proceedings. At the time that provision was
adopted, we made clear that the only basis on which a defendant
could seek to discharge counsel was pursuant to statute based
upon an actual conflict, or in the context of dismissing
postconviction proceedings pursuant to rule 3.851(i). In re Amends.
to Fla. Rules of Jud. Admin.; Fla. Rules of Crim. Proc.; & Fla. Rules of
App. Proc.—Cap. Postconviction Rules, 148 So. 3d 1171, 1173-74
(Fla. 2014).
Subsequently, in Davis v. State, 257 So. 3d 100, 107 (Fla.
2018), in what presented an atypical situation because Davis only
sought to waive his postconviction proceedings, we rejected the
State’s argument “that the postconviction court should not have
allowed counsel to remain on Davis’s case because the
postconviction waiver necessarily included a waiver of counsel and
all future claims.” Rather, the Court stated in pertinent part that “a
defendant has the right to enter a waiver to some or all postconviction
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claims” and should be permitted to “retain counsel for future
claims, if any, related to his execution.” Id. at 107-08 (emphasis
added). The Court further noted that
[t]his case indicates that the language of rule 3.851(i)
may be inconsistent with this Court’s case law in two
ways. First, the rule may not have contemplated partial
waivers, such as here, where the defendant does not seek
to waive both postconviction proceedings and counsel.
Second, this Court’s case law has interpreted waivers as
encompassing all postconviction claims, possible future
changes in the law, and execution-related challenges,
despite the rule providing for the waiver of only “pending”
claims. As a result, we refer this matter to the Criminal
Court Steering Committee to consider possible revisions
to rule 3.851(i).
Id. at 107 n.8.
Following that referral by the Court, the Florida Supreme
Court’s Criminal Court Steering Committee (Steering Committee)
filed its petition proposing to amend rules 3.851 and 9.142 based
upon the Court’s direction to the Steering Committee to propose
amendments to rule 3.851 in accordance with the Court’s decision
in Davis. Upon review of the Steering Committee’s proposals to
amend rules 3.851 and 9.142, the Court declined to adopt the
proposed amendments and instead decided to consider
amendments to those rules on its own motion. In re Amends. to Fla.
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Rule of Crim. Proc. 3.851 & Fla. Rule of App. Proc. 9.142, No. SC19-
509, 2021 WL 1545796 (Fla. Apr. 20, 2021). We now amend rules
3.851 and 9.142 to clarify the permissible scope of waiver in capital
postconviction proceedings and briefly discuss the more significant
amendments to the rules as adopted by the Court.
First, the amendment to rule 3.851(b)(6) makes clear that the
only basis for a capital defendant to seek to discharge
postconviction counsel in state court is pursuant to statute due to
an actual conflict of interest, which, if granted, will result in the
appointment of conflict-free counsel. This provision is consistent
with the first sentence in subdivision (b)(6) providing that “[a]
defendant who has been sentenced to death may not represent
himself or herself in a capital postconviction proceeding in state
court.”
Next, the provisions under subdivision (i) are revised to reflect
that any waiver is limited to dismissal of postconviction
proceedings, and does not include the discharge of counsel, as
indicated in the title to the subdivision. In subdivision (i)(6), the
references to Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993), and
Faretta v. California, 422 U.S. 806 (1975), are removed because
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those cases pertain to the waiver of counsel and self-representation,
which these amendments make clear is not permitted in capital
postconviction cases. In addition, as part of the waiver colloquy
under subdivision (i)(6), the circuit court must ascertain whether
the defendant is also waiving appellate review of any order finding
that the waiver of the postconviction proceedings and claims is
knowing, intelligent, and voluntary. In subdivisions (i)(6)-(i)(8), the
term “intelligently” is substituted for “freely,” as the inquiry already
includes the term “voluntarily,” which better reflects the
requirements for waiver. Subdivision (i)(7) also is amended to
provide that the order of dismissal should reflect whether appellate
review has been waived, and the portion addressing the procedure if
the circuit court determines that the waiver is not valid is separated
into a new subdivision (i)(8). Accordingly, former subdivisions (i)(8)
and (i)(9) are renumbered. Finally, new subdivision (i)(11) provides
that collateral counsel must be appointed in cases for which
motions under subdivision (i) were granted prior to the effective date
of these amendments, i.e., where counsel was previously
discharged. As always, postconviction counsel must meet the
minimum requirements set forth in Florida Rule of Criminal
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Procedure 3.112 (Minimum Standards for Attorneys in Capital
Cases) and should be appointed within thirty days of the effective
date of these amendments.
A new entry is added to the Court Commentary to rule 3.851,
which provides that after a waiver of pending postconviction
proceedings under the 2022 amendment, a subsequent
postconviction motion is allowable as provided by subdivision
(d)(2)(A), which allows for claims based on newly discovered
evidence, or subdivision (d)(2)(B), which allows for claims that are
based on a newly established fundamental constitutional right
previously held to apply retroactively. The comment also provides
that a subsequent postconviction motion is allowable if it raises
execution-related claims considered not to be ripe until such time
as a warrant for execution is signed, including, for example,
challenges to execution protocols or competency to be executed, as
such claims are not waivable.
Lastly, pertaining to rule 9.142, subdivision (d) is amended to
expressly provide that review of the dismissal of the postconviction
proceedings does not apply if the appeal was waived before the
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circuit court, and to remove any reference to the “discharge” or
“discharging” of counsel.
Accordingly, we amend the Florida Rules of Criminal
Procedure and the Florida Rules of Appellate Procedure as reflected
in the appendix to this opinion. New language is underscored;
deleted language is stricken through. The amendments to these
rules shall become effective immediately upon the release of this
opinion.
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.
Original Proceeding – Florida Rules of Criminal Procedure and
Florida Rules of Appellate Procedure
Alan S. Apte, Chair, on behalf of the Criminal Procedure Rules
Committee, Orlando, Florida, and Deborah Michelle Sisco, Vice
Chair, on behalf of the Criminal Procedure Rules Committee,
Tampa, Florida; Laura A. Roe, Chair, on behalf of the Appellate
Court Rules Committee, St. Petersburg, Florida; Jason B. Blank of
Haber Blank, LLP, Fort Lauderdale, Florida, and Maria DeLiberato
of Parmer DeLiberato, P.A., on behalf of the Criminal Law Section of
The Florida Bar, Tampa, Florida; Debra J. Riva, Chair, on behalf of
the Criminal Court Steering Committee, Sarasota, Florida, and Bart
Schneider, Liaison, on behalf of the Criminal Court Steering
Committee, Tallahassee, Florida; Joshua E. Doyle, Executive
Director, Krys Godwin and Mikalla Andies Davis, Staff Liaisons, The
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Florida Bar, Tallahassee, Florida; Carali McLean and Gayle Giese on
behalf of the Florida Mental Health Advocacy Coalition, National
Alliance on Mental Illness, and Mental Health America, Ocala,
Florida; Neal A. Dupree, Suzanne Keffer, and Michael Chance Meyer
on behalf of the Capital Collateral Regional Counsel – South Region,
Fort Lauderdale, Florida; Linda McDermott on behalf of the Office of
the Federal Public Defender for the Northern District of Florida –
Capital Habeas Unit, Tallahassee, Florida; Kathryn M. Horst and
Philip A. Fowler on behalf of the Florida Department of Corrections,
Tallahassee, Florida; Katherine Fernandez Rundle and Christine
Zahralban of the Office of the State Attorney for the Eleventh
Judicial Circuit, Miami, Florida; Ed Brodsky, State Attorney,
Twelfth Judicial Circuit, Sarasota, Florida, Jack Campbell, State
Attorney, Second Judicial Circuit, Tallahassee, Florida, Amira Fox,
State Attorney, Twentieth Judicial Circuit, Fort Myers, Florida, and
Brian Haas, State Attorney, Tenth Judicial Circuit, on behalf of the
Florida Prosecuting Attorneys Association, Bartow, Florida;
Charmaine M. Millsaps, Tallahassee, Florida; and Jason Cromey on
behalf of the Florida Association of Criminal Defense Lawyers,
Pensacola, Florida,
Responding with comments
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APPENDIX
RULE 3.851 COLLATERAL RELIEF AFTER DEATH SENTENCE
HAS BEEN IMPOSED AND AFFIRMED ON DIRECT
APPEAL
(a) [No Change]
(b) Appointment of Postconviction Counsel.
(1)-(5) [No Change]
(6) A defendant who has been sentenced to death may
not represent himself or herself in a capital postconviction
proceeding in state court. The only basesbasis for a defendant
who has been sentenced to death to seek to dismissdischarge
postconviction counsel in state court shallmust be pursuant to
statute due to an actual conflict of interest or subdivision (i) of
this rule. Upon a determination of an actual conflict of
interest, conflict-free counsel must be appointed pursuant to
statute.
(c)-(h) [No Change]
(i) Dismissal of Postconviction Proceedings.
(1) This subdivision applies only when a defendant seeks
both to dismiss pending postconviction proceedings and to
discharge collateral counsel.
(2)-(5) [No Change]
(6) If the defendant is found to be competent for
purposes of this rule, the court shallmust conduct a complete
(Durocher/Faretta) inquiry to determine whether the defendant
knowingly, freelyintelligently, and voluntarily wants to dismiss
pending postconviction proceedings and discharge collateral
counsel. The colloquy must also address whether the
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defendant wants to waive appellate review of the dismissal of
postconviction proceedings, if granted.
(7) If the court determines that the defendant has made
the decision to dismiss pending postconviction proceedings
and discharge collateral counsel knowingly, freelyintelligently,
and voluntarily, the court shallmust enter an order dismissing
all pending postconviction proceedings and discharging
collateral counsel. The order must also indicate whether
appellate review has been waived.
(8) But iIf the court determines that the defendant has
not made the decision to dismiss pending postconviction
proceedings and discharge collateral counsel knowingly,
freelyintelligently, and voluntarily, the court shallmust enter
an order denying the motion without prejudice.
(89) If the court grants the motion and appellate review is
not waived:
(A) a copy of the motion, the order, and the
transcript of the hearing or hearings conducted on
the motion shallmust be forwarded to the Clerk of
the Supreme Court of Florida within 30 days; and
(B) discharged collateral counsel shallmust,
within 10 days after issuance of the order, file with
the clerk of the circuit court 2 copies of a notice
seeking review in the Supreme Court of Florida, and
shallmust, within 20 days after the filing of the
transcript, serve an initial brief. Both the defendant
and tThe state may serve a responsive briefs. Briefs
shallmust be served as prescribed by rule 9.210.
(910) If the court denies the motion, the defendant may
seek review as prescribed by Florida Rule of Appellate
Procedure 9.142(bc).
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(11) For cases where counsel was previously discharged
pursuant to this rule, collateral counsel eligible pursuant to
rule 3.112 must be appointed within thirty days of May 5,
2022.
(j) [No change]
Court Commentary
1993 Adoption–2013 Amendment [No change]
2022 Amendment. The amendments are in
response to the Court’s decision in Davis v. State, 257 So.
3d 100, 107 n.8 (Fla. 2018), recognizing the discrepancy
between rule 3.851(i) and the Court’s case law. The
dismissal of a pending postconviction motion pursuant to
subdivision (i) does not preclude the filing of a
subsequent postconviction motion raising for the first
time claims that could be raised under rule
3.851(d)(2)(A), which allows for claims based on newly
discovered evidence, or rule 3.851(d)(2)(B), which allows
for claims that are based on a newly established
fundamental constitutional right previously held to apply
retroactively, and claims that are only ripe at the time of
issuance of a warrant, such as competency to be
executed and challenges to execution protocols.
Criminal Court Steering Committee Note
[No change]
RULE 9.142 PROCEDURE FOR REVIEW IN DEATH PENALTY
CASES
(a)-(c) [No changes]
(d) Review of Dismissal of Postconviction
Proceedings and Discharge of Counsel in Florida Rule of
Criminal Procedure 3.851(i) Cases.
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(1) Applicability. This rule applies when the circuit court
enters an order dismissing postconviction proceedings and
discharging counsel under Florida Rule of Criminal Procedure
3.851(i), unless the appeal was waived by the defendant before
the circuit court.
(2) Procedure Following Rendition of Order of Dismissal
and Discharge.
(A) Notice to Lower Tribunal. Within 10 days of
the rendition of an order granting a prisoner’s
motion to dismiss the motion for postconviction
relief motion to discharge counsel and dismiss the
motion for postconviction relief, discharged counsel
shallmust file with the clerk of the circuit court a
notice of appeal seeking review in the supreme
court.
(B) Transcription. The circuit judge presiding
over any hearing on a motion to dismiss and
discharge counsel shallmust order a transcript of
the hearing to be prepared and filed with the clerk
of the circuit court no later than 25 days from
rendition of the final order.
(C) Record. Within 30 days of the granting of a
motion to dismiss and discharge counsel, the clerk
of the circuit court shallmust electronically transmit
a copy of the motion, order, and transcripts of all
hearings held on the motion to the clerk of the
supreme court.
(D) Proceedings in the Supreme Court of
Florida. Within 20 days of the filing of the record in
the supreme court, discharged counsel shallmust
serve an initial brief. Both tThe state and the
prisoner may serve a responsive briefs. All briefs
must be served and filed as prescribed by rule
9.210.
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Committee Notes
[No change]
Criminal Court Steering Committee Note
[No change]
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