Filing # 21900669 Electronically Filed 12/23/2014 10:13:44 AM

RECEIVED, 12/23/2014 10:18:47, John A. Tomasino, Clerk, Supreme Court

APPENDIX E

Appendix E-1

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE SC14-1530 CRIMINAL PROCEDURE RULES POSTCONVICTION RULES

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COMMENTS OF DARYL S. GUILDFORD INTERESTED PERSON

COMES NOW, Daryl Guildford, an interested person, and offers the

following comments on the proposed amendments to Florida Rules of Criminal

Procedure 3.987 (Motion for Postconviction Relief). I have been an inmate

certified law clerk in the Florida Department of Corrections (FDOC) for over

fifteen ( 15) years and this experience enables me to provide very useful feedback

on the proposed rule changes.

Proposed amendments to the unnotarized oath and notarized oath

I have concerns regarding multiple changes to Florida Rules of Criminal

Procedure 3.987 (Motion for Postconviction Relief). First, the Florida Bar's

Criminal Procedure Rules Committee is proposing the Oath on the form must be

by notary only and unnotarized oaths will be no longer permissible. I request the

Court reject this proposed amendment. This proposed amendment is unnecessarily

restrictive, serves no legal purpose, creates an unnecessary hardship and burden on

the pro-se inmate and will create needless untimely motions being filed.

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Appendix E-2

This Court has already determined that the oath set forth in section

92.525(2)1 is sufficient to satisfy the oath requirement in postconviction motions.

See State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993). This Court reasoned that

this particular oath provides the same protection against perjury as a notarized

oath. At that time this Court amended the form for postconviction motions to

reflect that this unnotarized oath may be used. See id. at 1103-04 (amending

Florida Rule of Criminal Procedure 3.987).

Moreover, by requiring the oath by notary only will create an unnecessary

hardship and burden on the pro-se inmate that this Court has no idea. At most

institutions the staff member that performs notary services is not readily accessible

to the inmate population. Inmates are required to submit an inmate request to be

scheduled and the wait is usually days sometimes weeks. Because the staff member

that does notary is not the Law Library Supervisor or Mailroom Employee the

document may not be stamped, "Provided to (name of institution) on (day, month

and year blank to insert date) for mailing by (officers initials)."

Also by rule, FDOC won't notarize the inmate's copy of any document.

Florida Administrative Code (F.A.C.) 33-210.102 (11)(a)2 states" Such employees

1 Section 92.525(1), Fla. Stat. (2013), provides that any document that must be verified by a person may be verified in one of two ways. Section 92.525(1)(a) allows for verification under oath or affirmation as set forth in 92.50(1 ), Fla. Stat. Section 92.525(1 )(b), Fla. Stat. (20 13 ), allows for verification by signing the following written declaration: Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.( emphasis added)

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Appendix E-3

shall not accept any document for notarization until the inmate indicates that he is

ready for it to be mailed or forwarded. The employee is not required to notarize the

inmates file copy of the document." (emphasis added) This creates an additional

problem because if the inmate's document is arbitrarily misplaced or

unintentionally lost and not received by the court the inmate won't have an exact

copy of the document provided to prison officials for mailing (with notary stamp)

to provide the court.

Finally, in proposing new rule 3.9875 (Motion for Jail Credit) the committee

placed an unnotarized oath on this motion. Why would an unnotarized oath be

sufficient in 3.9875 and not in 3.987? An unnotarized oath is used in numerous

postconviction motions including motions filed under Fla.R.App.P. 9.141 (c)

(Petitions Seeking Belated Appeal or Belated Discretionary Review); Fla.R.App.P.

9.14l(d) (Petitions Alleging Ineffective Assistance of Appellate Counsel);

Fla.R.Crim.P. 3.801 (Motion for Jail Credit); and 28 USC 2254 (Federal Habeas

Corpus Petitions).

For these reasons I respectfully request this Court reject removing the

unnotarized oath from 3.987. I submit this Court utilize the unnotarized oath

proposed in new rule 3.9875 (Motion for Jail Credit) also in 3.987. Also that the

unnotarized oath be in compliance with Fla.R.Crim.P. 3.850(n).

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Appendix E-4

Proposed amendments to Number Six (6) of Instructions to Rule 3.987

My concern for the proposal to Number Six (6)(a)-(g) of the Instructions to

Rule 3.987 is that they are confusing and misleading. The proposed change seems

to suggest subsections (a)-(g) of Number Six (6) of the Instructions only apply to

claims of newly discovered evidence and not the entire motion. The proposed

changes (a)-(g) should apply to the motion 3.987, not only claims of newly

discovered evidence as required in Fla.R.Crim.P. 3.850(n).

I ask for this Court to remove subsections (a)-(g) from number six (6) of the

Instructions and create a separate section in the Instructions for subsections (a)-(g).

3.987 (Motion for Postconviction RelieD not in compliance with Fla.R.Crim.P 3.850(n)

I assert that the proposed amendments to Florida Rules of Criminal

Procedure 3.987 (Motion for Postconviction Relief) does not make the motion in

compliance with the Fla.R.Crim.P 3.850(n) which states:

(n) Certification of Defendant; Sanctions No motion may be filed pursuant to this rule unless it is filed in good faith and with a reasonable belief that it is timely, has potential merit, and does not duplicate previous motions that have been disposed of by the court.

( 1) By signing a motion pursuant to this rule, the defendant certifies that: the defendant has read the motion or that it has been read to the defendant and that the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous

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Appendix E-5

motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.

(2) The defendant shall either certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant. Failure to include this information and certification in a motion shall be grounds for the entry of an order dismissing the motion pursuant to subdivision (/)(1), (/)(2), or (/)(3).

When this Court amended Fla.R.Crim.P. 3.850 in In re Amendments to the

Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, 132

So. 3d 734, (Fla. 2013) it made the current version of the form (3.987) obsolete.

Because 3.987 (Motion for Postconviction Relief) was not amended with the rule,

pro-se inmates were without guidance or an updated form. The lower courts are

constantly dismissing the current version of the form for failure to comply with the

requirements outlined in rule 3.850(n). The current proposal will also conflict with

Rule 3.850(c) which states that motions shall be under oath, not that it must be a

notarized oath.

The proposed language of the amendments does not make the rule 3.987

(Motion for Postconviction Relief) in compliance with rule 3.850(n) and would be

subject to automatic dismissal by the trial court.

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Appendix E-6

Therefore I propose this Court reject the proposed version of the form and

create a form in compliance with Fla.R.Crim.P 3.850. Here's a proposal for an oath

and certification.

OATH

UNDER PENALTY OF PERJURY, I declare that I have read or the foregoing

document has been read to me, I understand its content, and swear that all facts

stated in it are true and correct.

Executed this __ day of ________ _

/s/ -------------------

CERTIFICATE OF DEFENDANT

Pursuant to Rule 3.850(n), the Defendant hereby certifies that:

1. The Defendant understands English and has read the motion and understands

its content.

2. The motion is filed in good faith, and the Defendant has a reasonable belief

that it is timely, has potential merit, and does not duplicate previous motions.

Executed this __ day of ______ _

/s/ _________ _

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Appendix E-7

Proposed amendments should include a certificate of mailing or service

I have a concern that the old form and proposed amendments do not include

a certificate of mailing or service in Rule 3.987. Because a motion filed under Rule

3.850 requires an ex-parte ruling, the defendant is not required to serve the State

Attorney so this Court never included a certificate of service in its standard form. 2

However, in Haag v. State, 591 So. 2d 614, 617 (Fla. 1992), this Court

recognized the "mailbox rule" in Florida. Also in Thompson v. State, 761 So. 2d

324, 326 (Fla. 2000), this Court acted to remedy a further problem associated with

the "mailbox rule," holding that the presumption of timely filing by inmate existed

if the legal document contained a certificate of service showing that the pleading

was placed in the hands of prison or jail officials for mailing on a particular date

and that the presumption shifted to the state the burden to prove that the document

was not timely placed in prison officials' hands for mailing.

The problem I submit is that a certificate of mailing or service is necessary

for the court and the pro se inmate to establish the date the document was turned

over to prison or jail officials for mailing to the court. It can be assumed following

Thompson that DOC promulgated Rule 33-210.102(8)(g), Florida Administrative

Code which reads in pertinent:

2 It has always been a topic of debate among pro-se inmates if the state attorney was required service pursuant to Fla.R.Crim.P. 3.030(a).

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Appendix E-8

Inmates shall present all outgoing legal mail unsealed to the mail collection representative to determine, in the presence of the inmate, that the correspondence is legal mail, bears that inmate's return address and signature, and that it contains no unauthorized items .... [T]he mail collection representative shall stamp the document(s) to be mailed and the inmate's copy, if provided by the inmate. The date stamp shall be in the following format: "Provided to (name of institution) on (day, month and year blank to insert date) for mailing, by (officer's initials)." The mail collection representative shall then have the inmate initial the document( s) next to the stamp and have the inmate seal the envelope in the mail collection representative's presence.

I disagree that this procedure solved all problems a pro se inmate may

encounter. There may be times when an inmate has difficulties filing a motion

within the Department and cannot receive the stamp, and must rely on a certificate

of mailing or service. (i.e. in transit from one institution to another or when visiting

the outside hospital an inmate may be unable to reach the appropriate institutional

official.) Additionally, there are times when a pro se inmate will be serving a

sentence in DOC and transferred to a county jail for other charges, child custody

issues, or to render substantial assistance where this procedure is not utilized.

Simply because a pro se inmate is in a county jail the time limits for filing his

3.987 motion under Rule 3.850 does not toll and he must still timely file his

motion. Although under these circumstances a pro se inmate would most likely

eventually be allowed to file his motion outside the time window, it would require

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Appendix E-9

lengthy litigation and a waste of judicial time and resources that would be

unnecessary if a proper certificate of mailing or service was utilized.

For these reasons I propose this Court insert a certificate of mailing or

service in the new standard 3.897 in compliance with Hagg and Thompson to

clearly establish when the document was submitted to prison officials for mailing. I

submit that the standard certificate in Fla. R. App. P. 9.420(d)(l) to be a model:

(1) By Pro Se Inmate:

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)

(name)

(address)

(prison identification number)

Proposed amendments to the criminal procedure rules

The Florida Bar's Criminal Procedure Rules Committee alleges the majority

of the proposals are in response to a request by this Court for the Committee, with

input from the Criminal Court Steering Committee, to review the issue of

successive rule 3.800(a) motion and the post conviction procedure forms in light of

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Appendix E-10

this Court's decision in In re Amendments to the Fla. Rules of Criminal Procedure

& the Fla. Rules of Appellate Procedure, 132 So. 3d. 734 (Fla. 2013).

My main concern is how will any of the proposed changes to Rule 3.987

streamline the post conviction process and assist the pro-se inmate in filing a

facially and legally sufficient motion. I believe the Committee has failed to adhere

to suggestions of Justice Pariente in her concurring opinion when she stated the

following:

Despite this objective reality, however, we must always remember another essential truth about our system of justice: that, among the avalanche of postconviction filings, there always exists the possibility of a defendant who in fact is entitled to relief, either from his or her conviction or from the sentence-including the possibility of actual innocence or credible newly discovered evidence that sheds doubt on the validity of the conviction. Thus, I am convinced that, on the front end, mandating and adopting standard forms for prisoners to use and exploring electronic filing of postconviction petitions would be two significant steps toward our ultimate goal of reforming an "unwieldy postconviction process" while achieving a "balance between the rights of the convicted defendants and the appropriate use of court resources." Majority op. at 3. I believe that standard forms and electronic filing would increase efficiency by enabling courts to track postconviction filings by individual prisoners, more easily ensuring that the process is not being abused and that multiple levels of courts are not reviewing the same filings, and reducing the possibility that a petition with merit is overlooked in the avalanche of pro se filings courts now receive. Because the ultimate issue is the efficient, effective, timely, and fair administration of justice, I also note that, in the 2006 Report of the Postconviction Rules Workgroup, the Committee consisting of trial and appellate court judges observed that the addition of forms for use by prisoners, as well as the ability to handle these filings electronically, would be two ways that the judicial system could

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Appendix E-11

balance efficiency with fairness. As set forth in the report authored by Judge Altenbernd: Just as a more extensive collection of form motions and orders was required to assist pro se litigants in family law cases, the Workgroup believes that more extensive forms are needed to assist the litigants and the courts in processing postconviction proceedings.{112 So. 3d 1244} It is often cumbersome and time-consuming to amend rules of proced:ures. Forms can be more readily adjusted. The law of postconviction is frequently affected by an issue that generates many motions for a short period of time. . . . There is little question that a significant percentage of all motions filed by prisoners have little or no merit. The typical prisoner, however, is untrained in the law, given no adequate form pleadings, and is represented, at best, by other prisoners with limited paralegal training or experience. It is often difficult or impossible to distinguish between a prisoner who is ignorant of the law and one who is filing motions in bad faith. The fact that a prisoner often has limited education and may suffer from mental illness makes this process even more difficult.

In my opinion it seemed to me Justice Pariente was encouragmg the

Committees and Groups to create a standard form that could enable the Court to

stop Pro-se inmates from filing successive or frivolous motions and abusing the

system but also having a more extensive detailed form that the pro-se inmate could

submit that clearly presents his claims to the courts for relief.

Taking a close look at the current form and proposals, it does nothing to

assist a prisoner in presenting a facially and legally sufficient claim. In section 14

of the Motion (supporting facts) the inmate is instructed to "tell your story without

citing cases or law." It is clearly established that for a claim of denial of effective

assistance of counsel to be facially sufficient the two prongs of Strickland v

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) must be met

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Appendix E-12

in the motion. A pro-se inmate just telling his story would be hard pressed to meet

those requirements. The courts are now forced to constantly enter orders pursuant

to Spera v State, 971 So. 2d 754, (Fla. 2007) ordering the pro-se inmate to make

their claims facially sufficient again wasting judicial time and resources. Had the

pro-se inmate been instructed in the form to clearly allege "Counsel's deficient

performance and how he was prejudiced by it," I am of the opinion his claim

would have been facially sufficient or prior to actually filing the motion he would

have realized the claim was not proper for post conviction relief and not filed it

with the court. Nevertheless, if after being instructed on the proper procedure in the

form on how to raise his claims it would be more clear for the courts to distinguish

between pro-se inmates who are ignorant of the law and one who is filing motions

in bad faith.

I agree with Justice Pariente that a significant amount of claims that are

raised by pro-se inmates have little or no merit, however, the Florida Innocence

Commission in its Final Report issued on June 25, 2012, to this Court identified

five causes for wrongful convictions:

Eyewitness identification, false confessions, informants and jailhouse snitches, improper/invalid scientific evidence, and professional responsibility. While studying the topic of professional responsibility, it became crystal clear to the Commission that a sixth significant cause exists that may lead to wrongful convictions: The underfunding of the criminal justice system in Florida. Because of the significance of this issue, subsection (h) has been included in the Executive Summary. Many members expressed their concerns about criminal

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Appendix E-13

justice system funding during discussions that occurred at the June 11, 2012 meeting. The following points raised by three Commission members are the most salient and reflect the mindset of the Commission.

Judge Silverman stated that without adequate counsel, due process is not assured. If we do not provide adequate funding there is a loss of the due process of law which will lead to wrongful convictions.

Dean Acosta commented that if one is serious about doing something about wrongful convictions we must recognize that a lack of funding is the most serious threat that implicates the state attorneys, public defenders, the Attorney General, criminal conflict counsel, and the judiciary. All of the other recommendations of the Commission are secondary. More funding is fundamental to our rights and the system of law.

Mr. Coxe succinctly stated that inadequate funding leads to mistakes that are a recipe for wrongful convictions.

Although the commission has identified and studied these six causes of wrongful convictions, one should not draw the assumption that the Commission, in its two years of work, has been able to study every conceivable reason that leads to the conviction of the innocent. As Judge Silvernail succinctly stated at the final Commission meeting on June 11, 2012: Attorney misconduct, ineffective defense counsel, prosecution errors, heavy judicial caseloads, and inadequate funding all lead to wrongful convictions.

It is clear from the detailed account from the Florida Innocence Commission

in its Final Report that there is a very good possibility that wrongful convictions

exist due to the multiple reasons found by their extensive research. It also

establishes if not because of attorney misconduct, ineffective defense counsel,

prosecution errors, heavy judicial caseloads, and inadequate funding there is a

"reasonable probability" the result of the proceedings would have been different

and/or counsel's ineffectiveness affected the fairness and reliability of the

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Appendix E-14

proceedings, thereby undermining confidence in the outcome. This brings us

squarely back to the necessity to have a form that can assist the unrepresented pro­

se inmate to properly present timely, legal, and facially sufficient claims to the

court.

Therefore, I submit this Court reject the proposals and current version of

Florida Rules of Criminal Procedure 3.987 (Motion for Postconviction Relief). I

submit that Florida Rules Of Criminal Procedure 3.987 (Motion for Postconviction

Relief) be amended to clearly explain to pro-se inmates what may be brought under

this rule in the framework of Rule 3.850 proceedings while also curtailing the

filing of successive and frivolous motions. Also most importantly, rules and forms

that provide adequate instructions to the pro-se inmates of what must be included

in each argument to make it legally and facially sufficient.

CONCLUSION

I thank this Court for the opportunity to provide my comments to these

proposals because as an inmate law clerk and pro-se inmate I believe it's essential

we have the opportunity to present our claims to the courts in the most efficient,

effective, and timely manner available. I also understand the necessity to create

procedures and forms to limit the filing of successive motions and motions filed in

bad faith. I request that this Court keep the goal of providing access to the courts

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Appendix E-15

for pro- se inmates at the forefront of amending Florida Rules of Criminal

Procedure 3.987 (Motion for Postconviction Relief).

Respectfully Submitted,

0'8.#!1~ Daryl Guildford DC# 139818

CERTIFICATE OF SERVICE

I certify that I placed this document in the hands of Mr. Mcrae,

Classification Officer at Blackwater River Correctional Facility for mailing to The

Florida Supreme Court, Office of the Clerk 500 South Duval Street, Tallahassee,

Fl. 32399-1927; Committee Chair Judge Samantha L. Ward, George Edgecomb

Courthouse, 800 E. Twiggs Street, Suite 421, Tampa 33602-3549, The Bar Staff

Liaison to the Committee, Heather S. Telfer, 651 E. Jefferson Street, Tallahassee,

Fl. 32399-2300 on day of October 2014.

15

Do/!f/f~ Daryl Guildford DC# 139818 Blackwater River Corr. Facility 5914 Jeff Ates Road Milton, Florida 32583

Appendix E-16

Filing # 19107114 Electronically Filed 10/07/2014 03:27:40 PM

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THEFLORIDA RULES OF CRIMINALPROCEDURE CASE NO.: SC14-1530 _________________________________/

CRIMINAL COURT STEERING COMMITTEE’S FINAL COMMENT TO THE CRIMINAL PROCEDURE RULES COMMITTEE’S OUT-OF-CYCLE

REPORT

The Criminal Court Steering Committee (“Steering Committee”), by and through its chair, files this comment to the proposals in the Criminal Procedure Rules Committee’s (“CPRC”) out-of-cycle report, published in The Florida Bar News on September 15, 2014.

On July 21, 2014, the Steering Committee sent suggestions to the CPRC, which are in Appendix F in the CPRC’s original filing. It appears from the CPRC’s August 1, 2014 pleading that some of the Steering Committee’s proposals were considered and rejected by the CPRC and some of the Steering Committee’s proposals were not considered by the full CPRC, perhaps due to time constraints. Based upon the latest request for comments, in the abundance of caution, the Steering Committee files this final comment.

Steering Committee Comment #1 Proposed Rule 3.800(a)(2)

For a new rule 3.800(a)(2), the CPRC proposed:

(2) Successive Motions. A court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits. When a motion is dismissed under this subdivision, a copy of that portion of the files and records necessary to support the court’s ruling must accompany the order dismissing the motion.

However, the Steering Committee recommends the following:

(2) Successive Motions. A court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are

Appendix E-17

alleged, the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant’s counsel to have asserted those grounds in a prior motion. When a motion is dismissed under this subdivision, a copy of that portion of the files and records necessary to support the court’s ruling must accompany the order dismissing the motion.

The Steering Committee concurs with the CPRC’s assessment that the Steering Committee’s suggested changes would be contrary to current case law construing rule 3.800(a). See, State v. McBride, 848 So. 2d 287 (Fla. 2003). Arguably, the CPRC suggestion also would change current case law, because the CPRC proposal does not require a finding negating a “manifest injustice” as directed by State v. McBride. Even so, the Steering Committee endorses the concept of limiting successive rule 3.800(a) motion as proposed by the CPRC. The CPRC’s report indicates that, “proposed subdivision (a)(2), Successive Motions, is modeled on the successive motions provision in Rule 3.850(h)(2), Motion to Vacate, Set Aside, or Correct Sentence.” The Steering Committee agrees with this statement. Consistency in the rules is of great help in formation of an understandable and uniform body of law. That is the precise reason for the Steering Committee’s proposal. With some proviso language deleted, the Steering Committee’s proposal is identical with rule 3.850(h)(2). The Steering Committee proposal would extend the bar to motions that abuse process or where there was “no good cause” for the failure to have asserted this ground before.

In its report, the CPRC cited Mims v. State, 994 So. 2d 1233 (Fla. 3d DCA 2008). Mims is a good example of the abuse of the process as set out by Judge Salter in dissent. By the time the matter came before the Third District Court of Appeal, Mims had filed seven postconviction motions, four of them under rule 3.800(a). In one of his rule 3.850 motions, Mims asserted that his attorney was ineffective for not telling him that he could receive a consecutive sentence. The trial court found that to be untrue and that finding was affirmed on appeal. Mims’ rule 3.800(a) motions were filed over a time span from March 9, 2004, to April 3, 2007. Mims’ first motion complained of a scoresheet error. Motion two asserted a defect in his habitual offender status. Motion three argued that a successor judge improperly sentenced him. Motion four went back to the same consecutive sentence claim that had been found to be untrue in the rule 3.850 evidentiary hearing. The Steering Committee is of the view that such activity is an abuse of the process and puts an unreasonable burden on the scarce resources of the judicial system. There is simply no good reason why litigants cannot be required to bring

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Appendix E-18

claims of this type all in one proceeding. Thus the Steering Committee continues to believe that a more comprehensive successive motions rule is needed.

Steering Committee Comment #2Proposed Rule 3.800(a)(4)

For a new rule 3.800(a)(4), the CPRC is proposing:

(4) Appeals. All orders denying or dismissing motions under this subdivision (a) shallmust include a statement that the movant has the right to appeal within 30 days of rendition of the order.

The Steering Committee proposal, which has been revised from the proposal previously sent to the CPRC, for a new Appeals section is as follows:

(4) Appeals. An appeal may be taken to the appropriate appellate court only from the final order disposing of the motion. All final orders denying or dismissing defense motions under this subdivision (a) shallmust include a statement that the movantdefendant has the right to appeal within 30 days of the rendition of the order. All nonfinal, nonappealable orders entered pursuant to subdivision (a) should include a statement that there is no right to appeal the order until rendition of the final order.

The Steering Committee recognizes that in large part the CPRC proposal tracks the language of the current rule. However, the Steering Committee believes that the current term movant may cause confusion. Although most appeals from rulings on rule 3.800(a) motions are filed by the defendant, the State of Florida does have a limited right to appeal these rulings. As set out in rule 9.140(c)(1)(m), the State has the right to appeal from a ruling that creates an illegal sentence. For instance, if the trial court ruling negated a mandatory minimum sentence, the State would have a right to appeal. However, pursuant to Fla. R. App. P. 9.140(c)(3), the State only has 15 days to file an appeal, even though rule 3.800(a) states: “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.” Under these circumstances, the current and proposed language is affirmatively misleading.

With these considerations in mind, the Steering Committee asks the CPRC and the Court to review whether the word “movant” should be utilized in a new Appeals section in rule 3.800. The Steering Committee does not believe that it is necessary to advise the State of its appeal rights, because the state is always

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Appendix E-19

represented by an attorney who presumably knows the correct notice of appeal deadline. However, the rule should not be affirmatively misleading.

As a separate matter, the Steering Committee simply disagrees with the CPRC that there are no non-final orders rendered under rule 3.800(a). It is not uncommon for a trial court to rule that a rule 3.800(a) motion is legally insufficient. If that happens, appellate courts should not be burdened with an appeal from a non-final order. The language used is almost identical to the language of rule 3.850(k).

Steering Committee Comment #3 Proposed Rule 3.987(6) and (7)

The CPRC proposal for rule 3.987(6) and (7) is as follows:

(6) Claims of newly discovered evidence must be supported by affidavits attached to your motion. If your newly discovered evidence claim is based on recanted trial testimony or a newly discovered witness, the attached affidavit must be from that witness. For all other newly discovered evidence claims, the attached affidavit must be from any person whose testimony is necessary to factually support your claim for relief. If the required affidavit is not attached to your motion, you must provide an explanation why the required affidavit could not be obtained. Your motion must also be submitted under oath and state as follows:

(a) that you are the defendant in the cause,

(b) that you understand English or, if you cannot understand English, that you have had the motion translated completely into a language that you understand, along with the name and address of the person who translated the motion and a certification from that person that he or she provided you with an accurate and complete translation,

(c) that you have either read your motion or had it read to you,

(d) that you understand all of its contents,

(e) and that your motion is filed in good faith, with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court,

(f) that all of the facts stated in your motion are true and correct, and

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Appendix E-20

(g) that you are subject to sanctions, whether imposed by the court or administratively by the Department of Corrections, including but not limited to forfeiture of gain time, if your motion is found to be frivolous, malicious, or otherwise made in bad faith or with reckless disregard for the truth.

(7) When the motion is fully completed, the original must be mailed to the clerk of the court whose address is (county where sentence was imposed) County Courthouse, (address of clerk), Florida.

In its initial pleading, the CPRC had no opinion on the Steering Committee suggestion for this section, but the “no opinion” was perhaps due to time pressures. The Steering Committee continues to believe the form would be more easily understood and followed by separating the instructions regarding newly-discovered evidence from the instructions regarding the general pleading requirements applicable to all rule 3.850 motions. By separating the instructions, the existing CPRC proposal for subsection (7) would need to be renumbered as subsection (8).

The Steering Committee asks the Court and CPRC to consider the following for rule 3.987(6), (7), and (8):

(6) Claims of newly discovered evidence must be supported by affidavits attached to your motion. If your newly discovered evidence claim is based on recanted trial testimony or a newly discovered witness, the attached affidavit must be from that witness. For all other newly discovered evidence claims, the attached affidavit must be from any person whose testimony is necessary to factually support your claim for relief. If the required affidavit is not attached to your motion, you must provide an explanation why the required affidavit could not be obtained.

(7) Your motion must be submitted under oath and state as follows:

(a) that you are the defendant in the cause,

(b) that you understand English or, if you cannot understand English, that you have had the motion translated completely into a language that you understand, along with the name and address of the person who translated the motion and a certification from that person that he or she provided you with an accurate and complete translation,

(c) that you have either read your motion or had it read to you,

(d) that you understand all of its contents,

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Appendix E-21

(e) and that your motion is filed in good faith, with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court,

(f) that all of the facts stated in your motion are true and correct, and

(g) that you are subject to sanctions, whether imposed by the court or administratively by the Department of Corrections, including but not limited to forfeiture of gain time, if your motion is found to be frivolous, malicious, or otherwise made in bad faith or with reckless disregard for the truth.

(8) When the motion is fully completed, the original must be mailed to the clerk of the court whose address is (county where sentence was imposed) County Courthouse, (address of clerk), Florida.

Steering Committee Comment #4 Proposed Rule 3.987

The CPRC’s proposed form does not provide for the certifications that are described in rule 3.850(n)(1), rule 3.850(n)(2), and that are mentioned in the proposed instructions in rule 3.987. The Steering Committee made this suggestion in its letter to the CPRC, but the CPRC did not address this suggestion in its initial pleading. Accordingly, the Steering Committee requests the full CPRC and the Court consider adding the following to rule 3.987:

I hereby certify that the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court. I understand that I am subject to sanctions, whether imposed by a court or by the Department of Corrections, including forfeiture of gain time, if the motion is found to be frivolous, malicious, or otherwise made in bad faith or with reckless disregard for the truth.

_________________(Defendant signature)

I hereby certify that I have provided (name of defendant) an accurate and complete translation of this motion.

6

Appendix E-22

________________________(Name and address of person who translated motion for defendant)

Steering Committee Comment #5 Proposed Rule 3.987 (oath section)

Finally and perhaps most importantly, the Steering Committee disagrees with the CPRC’s proposal to delete the “unnotarized oath” section of rule 3.987. Most 3.850 motions are filed by pro se prisoners who are unlikely to have ready access to a notary. Further, while it is true that rule 3.850(c) states that the motion must be under oath, the declaration in rule 3.987 (which the CPRC is asking the Court to delete) is considered to be an “oath” under Florida law. See Shearer v. State, 617 So. 2d 721 (Fla. 5th DCA 1993); aff’d 628 So. 2d 1102 (Fla. 1993).

Respectfully submitted this 7th day of October, 2014.

s/ Jay CohenThe Honorable Jay P. CohenFlorida Bar No.: 271160Chair, Criminal Court Steering CommitteeFifth District Court of Appeal300 S. Beach StreetDaytona Beach, Florida 32114(407) 947-1570cohenj@flcourts.org

CERTIFICATE OF SERVICE AND COMPLIANCE

I hereby certify that these Comments have been prepared using Times New Roman 14 point font in compliance with Florida Rule of Appellate Procedure 9.210(a)(2) and that a true and correct copy of the foregoing has been sent by e-mail to Judge Samantha Ward, Chair, Criminal Procedure Rules Committee, at wardsl@fljud13.org; to John F. Harkness, Jr., Executive Director, The Florida Bar, at JHarkness@flabar.org; to Paul Petillo, Assistant Public Defender, at PPetillo@pd15.state.fl.us; to Heather Telfer, Staff Liaison to the Criminal Procedure Rules Committee, at HTelfer@flabar.org; and to Judge Kevin Emas, former chair of the Criminal Court Steering Committee, at emask@flcourts.org; this 7th day of October, 2014.

7

Appendix E-23

s/ Bart SchneiderBart Schneider, Staff Liaison to Criminal Court Steering Committee Florida Bar Number: 0936065500 S. Duval StreetTallahassee, Florida 32399(850) 413-7321schneidb@flcourts.org

8

Appendix E-24

Filing # 19374858 Electronically Filed 10/14/2014 04:24:45 PM

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO FLORIDARULES OF CRIMINAL PROCEDURE

Case No. SC14-1530

___________________________________/

COMMENTS OF THE SIXTH JUDICIAL CIRCUIT ON PROPOSED AMENDMENTS TO

RULES OF CRIMINAL PROCEDURE 3.987 AND 3.9875

Pursuant to this Court’s invitation for comments on the proposed

amendments to Rules of Criminal Procedure 3.987 (Motion for Postconviction

Relief) and 3.9875 (Motion for Jail Credit), the Honorable J. Thomas McGrady,

Chief Judge of the Sixth Judicial Circuit (“Sixth Circuit”), files these comments on

the proposed amendments. As proposed, amended Rule 3.987 revises the model

form motion for postconviction relief and Rule 3.9875 adopts a model form motion

for correction of jail credit. The Sixth Circuit generally supports these

amendments, but submits the following comments and suggested revisions to the

proposed Rules:

I. Proposed Amendments to Rule of Criminal Procedure 3.987

A. Instruction (6)

The oath requirements of proposed instruction (6) are misleading. Rule

3.850(c) requires that all motions for postconviction relief be under oath and

motions based on newly discovered evidence be accompanied by an affidavit.

Appendix E-25

Proposed instruction (6) likewise indicates that claims of newly discovered

evidence must be supported by an affidavit attached to the motion, the motion must

be submitted under oath, and the defendant must attest that the contents of the

motion are true and correct.

However, the organization of proposed instruction (6) will likely mislead

pro se defendants on the oath requirement of Rule 3.850(c). Because the

instruction addresses newly discovered evidence claims before explaining the oath

requirements at the bottom of the paragraph, a pro se defendant may mistakenly

believe that his or her motion only needs to be under oath if it addresses newly

discovered evidence. This is contrary to the explicit oath requirement of Rule

3.850(c). As pro se defendants often rely exclusively on model forms rather than

the rules the forms are based on, it is likely that motions for postconviction relief

will be filed without the required oath. These facially insufficient motions will

waste limited judicial resources on preparing orders striking each motion with 60

days to amend. See Fla. R. Crim. P. 3.850(f)(2).

To clarify that all motions for postconviction relief must be filed with an

oath in accordance with Rule 3.850(c), the oath requirements could be removed

from instruction (6) and relocated to a new instruction exclusively on that topic.

B. Oath

Currently, the model form advises a defendant to complete either a notarized

2

Appendix E-26

oath or unnotarized oath. See Fla. R. Crim. P. 3.897. The proposed amendment to

Rule 3.987 appears to eliminate the option to sign an unnotarized oath by deleting

the unnotarized oath statement and signature line.

To the extent that the proposed amendments to Rule 3.987 will require

postconviction motions to contain a notarized oath, the proposed Rule is

inconsistent with this Court’s case law and will prevent many pro se defendants

from filing timely motions for postconviction relief. This Court has explicitly held

that a written declaration in accordance with Section 92.525, Florida Statutes, is an

acceptable oath for motions for postconviction relief. See State v. Shearer, 628 So.

2d 1102, 1103 (Fla. 1993) (finding an unnotarized oath sufficient because it

tracked the language of Section 92.525(2) and therefore a “postconviction movant

who falsely signs this oath could be convicted of perjury just as one who falsely

signs the oath currently set out in rule 3.987.”). The unnotarized oath of Rule

3.987 was specifically adopted to effectuate the Court’s ruling. See id. at 1103-04.

The overwhelming majority of pro se motions filed under Rule 3.850 in the Sixth

Circuit utilize the declaration in Section 92.525. This is likely due to the fact that

incarcerated defendants do not have easy access, and in some cases any access, to a

notary public or other person authorized to administer an oath. Thus, eliminating

the unnotarized oath will inhibit pro se defendants seeking relief under Rule 3.850.

To the extent that the proposed oath can be used as both a notarized oath

3

Appendix E-27

and an unnotarized oath, the proposed oath is insufficient. “The purpose of the

oath is to subject the petitioner to the penalties of perjury should he knowingly

misstate the facts.” Piper v. State, 21 So. 3d 902, 903 (Fla. 2d DCA 2009). This

Court found that a signed declaration in accordance with Section 92.525(2),

Florida Statutes, is sufficient for purposes of a postconviction motion because it

provides that “[u]nder penalties of perjury, I declare that I have read the foregoing

[document] and that the facts stated in it are true.” Shearer, supra at 1102. The

proposed oath requires the defendant to attest that the facts stated in the motion are

true and correct, but does not contain the words “under penalties of perjury.”

Thus, the proposed oath is insufficient and a defendant’s motion will not be

properly filed pursuant to Rule 3.850(c) unless it is notarized.

For the foregoing reasons, the Sixth Circuit respectively requests that Rule

3.987 retain an unnotarized oath in the format suggested in II. B. below.

II. Proposed Amendments to Rule of Criminal Procedure 3.9875

A. Instructions 1 and 2

Proposed Rule 3.9875 is a model form motion intended for defendants

seeking correction of jail credit pursuant to Rule 3.801. Instructions 1 and 2 of the

form are misleading as to the types of claims that may be raised pursuant to the

Rule. Instruction 1 states that “[t]he attached motion is to be used when your

sentence has omitted the proper amount of jail credit.” Instruction 2 states that

4

Appendix E-28

“[t]he attached motion is the only type of motion you are permitted to file to obtain

jail credit omitted from your sentence.” However, case law indicates that a claim

for out-of-state jail credit cannot be raised in a Rule 3.801 motion for correction of

jail credit. See State v. Gisi, 135 So. 3d 493, 495 (Fla. 2d DCA 2014) (holding that

though the court commentary to Rule 3.801 states that it is the exclusive rule for

jail credit motions, it does not apply to out-of-state jail credit claims); see also

Garnett v. State, 957 So. 2d 32, 33 (Fla. 2d DCA 2007) (“If a defendant is seeking

out-of-state jail credit in a postconviction proceeding, it would appear that the

proper method to seek such relief would normally require a timely allegation of

ineffective assistance of trial counsel under Rule 3.850.”). As written, instructions

1 and 2 will likely lead defendants to use the model form to file non-cognizable

motions for out-of-state credit and judicial time and labor will be spent preparing

and filing orders striking improperly filed motions.

The proposed instructions should be condensed and revised to clarify that

the model motion for jail credit does not apply to requests for out-of-state jail

credit. Instruction 2 might be eliminated and instruction 1 could read:

1. The attached motion is the only type of motion you are permitted

to file to obtain in-state jail credit omitted from your sentence. It

may not be used to obtain out-of-state jail credit.

This would help clarify that motions for out-of-state jail credit cannot be raised in a

5

Appendix E-29

Rule 3.801 motion, thus decreasing the likelihood of improperly filed motions.

B. Oath

The oath contained in section 6 of the proposed model motion for correction

of jail credit appears insufficient. Rule 3.801(c) requires that such motions be

made under oath. As previously stated above in Section I.B., the oath requirement

ensures that the movant is subject to prosecution for perjury if he or she knowingly

misstates the facts. See Piper v. State, 21 So. 3d 902, 903 (Fla. 2d DCA 2009).

The content of the proposed oath largely conforms to Section 92.525(2), Florida

Statutes. See State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993). However, the

proposed oath is written in the form of a question and allows the person making the

declaration to merely answer “Yes,” which is contrary to the requirement of

Section 92.525(2) that a written declaration be followed by the declarant’s

signature. Additionally, the proposed oath is not at the end of the model motion, as

required by Section 92.525(2). The oath does not serve its primary purpose of

subjecting the declarant to prosecution for perjury because it does not comply with

the statute and is therefore insufficient.

The model motion for jail credit should be edited to conform to Section

92.525(2). First, the oath should be phrased as a declaration rather than a question

and the movant should be required to sign the oath. Second, the oath should clarify

that that motion is submitted under penalty of perjury and administrative sanctions.

6

Appendix E-30

Third, the oath should be relocated to the end of the motion for jail credit, but

above the certificate of service. Thus, the oath would read:

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 declare that I

have read the foregoing motion for relief, or had the foregoing motion

for relief read to me, that I understand its contents, and that all facts

contained in the motion are true and correct.

_________________________

your signature

This language should replace the oath in proposed Rule 3.9875 and should also be

adopted as an amended unnotarized oath in proposed Rule 3.987.

CONCLUSION

For the reasons stated above, the Sixth Circuit respectfully requests that the

edits suggested in these comments to Rule 3.987 and Rule 3.9875 be adopted by

the Court.

Respectfully submitted this 14th day of October, 2014.

/s/J. Thomas McGradyJ. Thomas McGrady, Chief JudgeSixth Judicial Circuit 14250 49th Street NorthClearwater, FL 33762-2800Telephone: (727) 464-7457E-Mail: enew@jud6.orgFlorida Bar No.: 182579

7

Appendix E-31

/s/B. Elaine NewB. Elaine New, Court CounselSixth Judicial Circuit501 1st Avenue North, Suite 1000St. Petersburg, FL 33701Telephone: (727) 582-7424E-Mail: enew@jud6.orgFlorida Bar No.: 354651

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing COMMENTS OF THE SIXTH JUDICIAL CIRCUIT ON PROPOSED AMENDMENTS TO RULES OF CRIMINAL PROCEDURE 3.987 AND 3.9875 has been furnished by electronic mail to The Honorable Samantha L. Ward, Chair, Criminal Procedure Rules Committee at wardsl@fljud13.org, George Edgecomb Courthouse, 800 E. Twiggs St., Ste. 421, Tampa, FL 33602; and Heather S. Telfer, Staff Liaison to the Criminal Procedure Rules Committee at htelfer@flabar.org, 651 E. Jefferson St., Tallahassee, FL 32399, this 14th day of October, 2014.

/s/ B. Elaine NewB. Elaine New, Court CounselSixth Judicial Circuit501 1st Avenue North, Suite 1000St. Petersburg, FL 33701Telephone: (727) 582-7424E-Mail: enew@jud6.orgFlorida Bar No.: 354651

CERTIFICATE OF COMPLIANCE

I hereby certify that these Comments was prepared using Times New Roman 14-point font in compliance with Florida Rule of Appellate Procedure 9.210(a)(2).

/s/ B. Elaine NewB. Elaine New

8

Appendix E-32

Filing # 19443441 Electronically Filed 10/15/2014 08:29:38 PM

IN THE

SUPREME COURT OF FLORIDA

IN RE AMENDMENTS TO FLORIDA RULES OF CASE NO. SC14-1530 CRIMINAL PROCEDURE,

PUBLISHED SEPTEMBER 15,

2014

COMMENTS OF THE FLORIDA ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

The Florida Association of Criminal Defense Lawyers (“FACDL”) submits

the following comments relating to the proposed revision to Rule 3.800(a), Florida

Rules of Criminal Procedure, by the Florida Bar’s Criminal Procedure Rules

Committee (“the Committee”). FACDL opposes the proposed revision based on

the following

Rule 3.800. Correction, Reduction, and Modification of Sentences

The Committee proposes the addition of subsection (2) to Rule 3.800(a) that

provides the following:

(2) Successive Motions. A court may dismiss a second or successive motion if the

court finds that the motion fails to allege new or different grounds for relief and the

prior determination was on the merits. When a motion is dismissed under this

subdivision, a copy of that portion of the files and records necessary to support the

court’s ruling must accompany the order dismissing the motion.

The Committee’s proposal regarding successive motions is contrary to this

Appendix E-33

2

Court’s decision in State v. McBride, 848 So.2d 287 (Fla. 2003), and should not be

adopted. In McBride, this Court specifically addressed the issue of successive

motions filed under Rule 3.800, and whether the doctrines of law of the case, res

judicata, or collateral estoppel should bar defendants from filing such motions.

Initially, this Court concluded that “rule 3.800(a) ‘is intended to balance the need

for finality for convictions and sentences with the goal of ensuring that criminal

defendants do not serve sentences imposed contrary to the requirements of the

law.’” Id. at 289 (citing Carter v. State, 786 So.2d 1173, 1176 (Fla. 2001)).

This Court held that the law of the case doctrine does not bar successive

motions unless the previous denial of the defendant’s motion was both denied by

the trial court and that decision was affirmed on appeal. Id. at 289-90. The

Committee’s proposed revision does not encompass this important principle.

Next, this Court specifically held that the language of Rule 3.800(a)

indicates that the common law doctrine of res judicata does not bar defendants

from filing successive motions. The Court reasoned that Rule 3.800(a) “allows a

court to correct an illegal sentence ‘at any time.’ Florida courts have held, and we

agree, that the phrase ‘at any time’ allows defendants to file successive motions.

Thus, rule 3.800 expressly rejects application of res judicata principles to such

motions.” Id. at 290.

Finally, this Court concluded that, although the doctrine of collateral

Appendix E-34

3

estoppels may apply to preclude the filing of successive motions, it specifically

recognized an exception for cases where a manifest injustice would result if the

defendant’s illegal sentence was not corrected. Id. at 291-92. The Committee’s

proposed revision includes no reference to this important exception for cases

involving “manifest injustice” and seems to permit a trial court to dismiss

successive motions as a matter of course.

For the aforementioned reasons, the Committee’s proposed revision is

contrary to this Court’s decision in McBride and should not be adopted by this

Court. FACDL believes that, as a matter of due process and equal protection of the

law, as guaranteed by the Florida and United States Constitutions, and to promote

the integrity of the judicial system, it is never appropriate for a defendant to serve

an illegal sentence. See McBride, 848 So.2d at 294 (Pariente, J., concurring) (“the

entire justice system certainly has an interest in ensuring that the defendant is not

incarcerated longer than is authorized by law, or under illegal terms. The courts

have an obligation to correct any such error whenever it is brought to their

attention.”). Since the proposed revision appears contrary to those principles,

FACDL respectfully requests that this Court decline to adopt it.

Appendix E-35

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing instrument has

been furnished by email delivery to Committee Chair, Judge Samantha L. Ward,

George Edgecombe Courthouse, 800 E. Twiggs Street, Suite 421, Tampa, Florida

33602-3549, wardsl@fljud13.org, and Bar Staff Liaison to the Committee, Heather

S. Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300,

htelfer@flabar.org, on this 15th day of October, 2014.

4

Respectfully Submitted,

/s/William R. Ponall

Snure & Ponall P.A.

Fla. Bar No. 421634

425 W. New England Avenue, Ste 200

Winter Park, Florida 32789

ph: (407) 469-6200

ponallb@criminaldefenselaw.com

/s/Luke Newman

Luke Newman, PA

Fla. Bar No. 0859281

908 Thomasville Road

Tallahassee, Florida 32303

ph: (850) 224-4444

luke@lukenewmanlaw.com

Attorneys for the Florida Association of

Criminal Defense Lawyers

Appendix E-36