Post Eviction Motions for Criminal Cases

The experienced criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., handle all types of criminal defense matters, including appeals and Post Conviction Motions.  A post conviction motion is a method for attacking your adjudication or sentence which differs from a direct appeal.  A successful post conviction motion may reduce the defendant’s sentence or reverse the conviction.  A post conviction motion is a complex matter that should be made with the assistance of legal counsel.  These motions may have a time limit attached, so it may be imperative to contact legal counsel as soon as possible. 

If you, or someone you know, has been convicted of a crime and is appealing the outcome by way of a post conviction motion, you should consult an experienced criminal defense attorney.  The experienced criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben and Waxman, P.A., are available 24 hours a day, 7 days at week toll free at (866) 262-4874 or locally at (305) 858-9550.

RULE 3.850. MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE

(a) Grounds for Motion. The following grounds
may be claims for relief from judgment or release from
custody by a person who has been tried and found
guilty or has entered a plea of guilty or nolo contendere
before a court established by the laws of Florida:
(1) The judgment was entered or sentence was
imposed in violation of the Constitution or laws of the
United States or the State of Florida.
(2) The court did not have jurisdiction to enter the
judgment.
(3) The court did not have jurisdiction to impose
the sentence.
(4) The sentence exceeded the maximum authorized
by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject
to collateral attack.
(b) Time Limitations. A motion to vacate a sentence
that exceeds the limits provided by law may
be filed at any time. No other motion shall be filed or
considered pursuant to this rule if filed more than 2
years after the judgment and sentence become final in a
noncapital case or more than 1 year after the judgment
and sentence become final in a capital case in which a
death sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney
and
could not have been ascertained by the exercise of due
diligence, or
(2) the fundamental constitutional right asserted
was not established within the period provided for
herein
and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a
3.850 motion and counsel, through neglect, failed to
file the motion.
(c) Contents of Motion. The motion shall be under
oath and include:
(1) the judgment or sentence under attack and the
court which rendered the same;
(2) whether there was an appeal from the judgment
or sentence and the disposition thereof;
(3) whether a previous postconviction motion has
been filed, and if so, how many;
(4) if a previous motion or motions have been
filed, the reason or reasons the claim or claims in the
present motion were not raised in the former motion or
motions;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other conditions)
relied on in support of the motion.
This rule does not authorize relief based on grounds
that could have or should have been raised at trial and,
if properly preserved, on direct appeal of the judgment
and sentence.
(d) Procedure; Evidentiary Hearing; Disposition.
On filing of a rule 3.850 motion, the clerk shall forward
the motion and file to the court. If the motion, files, and
records in the case conclusively
show that the movant
is entitled to no relief, the motion shall be denied without
a hearing. In those instances when the denial is not
predicated on the legal insufficiency of the motion on
its face, a copy of that portion of the files and records
that conclusively shows that the movant is entitled to
no relief shall be attached to the order. Unless the motion,
files, and records of the case conclusively show that
the movant is entitled to no relief, the court shall order
the state attorney to file an answer or other pleading
within the period of time fixed by the court or to take
such other action as the judge deems appropriate. The
answer shall respond to the allegations of the motion.
In addition it shall state whether the movant has used
any other available state remedies including any other
postconviction motion under this rule. The answer shall
also state whether an evidentiary hearing was accorded
the movant. If the motion has not been denied at a previous
stage in the proceedings, the judge, after the answer
is filed, shall determine whether an evidentiary hearing
is required. If an evidentiary hearing is not required, the
judge shall make appropriate disposition of the motion.
If an evidentiary
hearing is required, the court shall grant
a prompt hearing thereon and shall cause notice thereof
to be served on the state attorney, determine the issues,
and make findings of fact and conclusions
of law with
respect thereto. If the court finds that the judgment was
rendered without jurisdiction, that the sentence imposed
was not authorized by law or is otherwise open to collateral
attack, or that there has been such a denial or
infringement of the constitutional
rights of the movant
as to render the judgment vulnerable to collateral attack,
the court shall vacate and set aside the judgment and
shall discharge or resentence the movant, grant a new
trial, or correct the sentence as may appear appropriate.
(e) Movant’s Presence Not Required. A court may
entertain and determine the motion without requiring
the production of the movant at the hearing.
(f) Successive Motions. A second or successive
motion may be dismissed if the judge 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 alleged, the judge finds that the
failure of the movant or the attorney to assert those
grounds in a prior motion constituted an abuse of the
procedure governed by these rules.
(g) Appeal; Rehearing; Service on Movant. An appeal
may be taken to the appropriate appellate court from
the order entered on the motion as from a final judgment
on application for writ of habeas corpus. All orders denying
motions for postconviction
relief shall include a statement
that the movant has the right to appeal within 30
days of the rendition of the order. A petitioner may seek
a belated appeal upon the allegation that the petitioner
timely requested counsel to appeal the order denying
petitioner’s motion for postconviction relief and counsel,
through neglect, failed to do so. The movant may file a
motion for rehearing of any order denying a motion under
this rule within 15 days of the date of service of the order.
The clerk of the court shall promptly serve on the movant
a copy of any order denying a motion for postconviction
relief or denying a motion for rehearing noting thereon the
date of service by an appropriate certificate of service.
(h) Habeas Corpus. An application for writ of habeas
corpus on behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this rule shall
not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court that
sentenced the applicant or that the court has denied the
applicant relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of the applicant’s detention.

RULE 3.851. COLLATERAL RELIEF AFTER
DEATH SENTENCE HAS BEEN
IMPOSED AND AFFIRMED ON
DIRECT APPEAL

(a) Scope. This rule shall apply to all motions and
petitions for any type of postconviction or collateral relief
brought by a prisoner in state custody who has been
sentenced to death and whose conviction and death sentence
have been affirmed on direct appeal. It shall apply
to all postconviction motions filed on or after October
1, 2001, by prisoners who are under sentence of death.
Motions pending on that date are governed by the version
of this rule in effect immediately prior to that date.
(b) Appointment of Postconviction Counsel.
(1) Upon the issuance of the mandate affirming a
judgment and sentence of death on direct appeal, the
Supreme Court of Florida shall at the same time issue
an order appointing the appropriate office of the
Capital Collateral Regional Counsel or directing the
trial court to immediately appoint counsel from the
Registry of Attorneys maintained by the Commission
on Capital Cases. The name of Registry Counsel shall
be filed with the Supreme Court of Florida.
(2) Within 30 days of the issuance of the mandate,
the Capital Collateral Regional Counsel or Registry
Counsel shall file a notice of appearance in the trial court
or a motion to withdraw based on a conflict of interest
or some other legal ground. Motions to withdraw filed
more than 30 days after the issuance of the mandate shall
not be entertained unless based on a specific conflict of
interest as set forth in section 27.703, Florida Statutes
Counsel or Registry Counsel files a motion to
withdraw, the chief judge or assigned judge shall rule
on the motion and appoint new postconviction counsel
if necessary. The appointment of new collateral counsel
shall be from the Registry of attorneys maintained
by the Commission on Capital Cases unless the case
is administratively transferred to another Capital Collateral
Regional Counsel.
(c) Preliminary Procedures.
(1) Judicial Assignment. Within 30 days of the
issuance of mandate affirming a judgment and sentence
of death on direct appeal, the chief judge shall assign
the case to a judge qualified under the Rules of Judicial
Administration to conduct capital proceedings.
(2) Status Conferences. The assigned judge shall
conduct a status conference not later than 90 days after
the judicial assignment, and shall hold status conferences
at least every 90 days thereafter until the evidentiary
hearing has been completed or the motion has
been ruled on without a hearing. The attorneys, with
leave of the trial court, may appear electronically at the
status conferences. Requests to appear electronically
shall be liberally granted. Pending motions, disputes
involving public records, or any other matters ordered
by the court shall be heard at the status conferences.
(3) Prisoner’s Presence Not Required. The prisoner’s
presence shall not be required at any hearing or
conference held under this rule, except at the evidentiary
hearing on the merits of any claim and at any hearing
involving conflict with or removal of collateral counsel.
(4) Duties of Defense Counsel. Within 45 days of
appointment of postconviction counsel, the defendant’s
trial counsel shall provide to postconviction counsel all
information pertaining to the defendant’s capital case
which was obtained during the representation of the
defendant. Postconviction counsel shall maintain the
confidentiality of all confidential information received.
(d) Time Limitation.
(1) Any motion to vacate judgment of conviction
and sentence of death shall be filed by the prisoner
within 1 year after the judgment and sentence become
final. For the purposes of this rule, a judgment is final:
(A) on the expiration of the time permitted to file
in the United States Supreme Court a petition for writ
of certiorari seeking review of the Supreme Court of
Florida decision affirming a judgment and sentence of
death (90 days after the opinion becomes final); or
(B) on the disposition of the petition for writ of
certiorari by the United States Supreme Court, if filed.
(2) No motion shall be filed or considered pursuant
to this rule if filed beyond the time limitation provided
in subdivision (d)(1) unless it alleges:
(A) the facts on which the claim is predicated
were unknown to the movant or the movant’s attorney
and could not have been ascertained by the exercise of
due diligence, or
(B) the fundamental constitutional right asserted
was not established within the period provided for in
subdivision (d)(1) and has been held to apply retroactively,
or
(C) postconviction counsel, through neglect,
failed to file the motion.
(3) All petitions for extraordinary relief in which
the Supreme Court of Florida has original jurisdiction,
including petitions for writs of habeas corpus, shall
be filed simultaneously with the initial brief filed on
behalf of the death‑sentenced prisoner in the appeal of
the circuit court’s order on the initial motion for postconviction
relief filed under this rule.
(4) The time limitation in subdivision (d)(1) is
established with the understanding that each death-sentenced
prisoner will have counsel assigned and available
to begin addressing the prisoner’s postconviction issues
within the time specified in this rule. Should the governor
sign a death warrant before the expiration of the
time limitation in subdivision
(d)(1), the Supreme Court
of Florida, on a defendant’s request, will grant a stay of
execution to allow any postconviction relief motions to
proceed in a timely and orderly manner. Furthermore,
this time limitation shall not preclude the right to amend
or to supplement pending pleadings under these rules.
(5) An extension of time may be granted by the Supreme
Court of Florida for the filing of postconviction
pleadings if the prisoner’s counsel makes a showing of
good cause for counsel’s inability to file the postconviction
pleadings within the 1‑year period established
by this rule.
(e) Contents of Motion.
(1) Initial Motion. A motion filed under this rule
is an initial postconviction motion if no state court has
previously ruled on a postconviction motion challenging
the same judgment and sentence. An initial motion
and memorandum of law filed under this rule shall not
exceed 75 pages exclusive of the attachments. Attachments
shall include, but are not limited to, the judgment
and sentence. The memorandum
of law shall set
forth the applicable case law supporting the granting
of relief as to each separately pled claim. This rule
does not authorize relief based upon claims that could
have or should have been raised at trial and, if properly
preserved, on direct appeal of the judgment and sentence.
If claims that were raised on appeal or should
have been raised on appeal are contained in the motion,
the memorandum of law shall contain a brief statement
explaining why these claims are being raised on postconviction
relief. The motion shall be under oath and
shall include:
(A) a description of the judgment and sentence
under attack and the name of the court that rendered
the same;
(B) a statement of each issue raised on appeal
and the disposition thereof;
(C) the nature of the relief sought;
(D) a detailed allegation of the factual basis for any
claim for which an evidentiary hearing is sought; and
(E) a detailed allegation as to the basis for any
purely legal or constitutional claim for which an evidentiary
hearing is not required and the reason that this claim
could not have been or was not raised on direct appeal.
(2) Successive Motion. A motion filed under
this rule is successive if a state court has previously
ruled on a postconviction motion challenging the same
judgment and sentence. A successive motion shall not
exceed 25 pages, exclusive of attachments, and shall
include:
(A) all of the pleading requirements of an initial
motion under subdivision (e)(1);
(B) the disposition of all previous claims raised
in postconviction proceedings and the reason or reasons
the claim or claims raised in the present motion
were not raised in the former motion or motions;
(C) if based upon newly discovered evidence,
Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v.
United States, 405 U.S. 150 (1972), the following:
(i) the names, addresses, and telephone numbers
of all witnesses supporting the claim;
(ii) a statement that the witness will be available,
should an evidentiary hearing be scheduled, to
testify under oath to the facts alleged in the motion or
affidavit;
(iii) if evidentiary support is in the form of
documents, copies of all documents shall be attached,
including any affidavits obtained; and
(iv) as to any witness or document listed in the
motion or attachment to the motion, a statement of the
reason why the witness or document was not previously
available.
(f) Procedure; Evidentiary Hearing; Disposition.
(1) Filing and Service. All pleadings in the postconviction
proceeding shall be filed with the clerk of
the trial court and served on the assigned judge, opposing
party, and the attorney general. Upon the filing of
any original court paper in the postconviction
proceeding,
the clerk of the trial court shall determine that the
assigned judge has received a copy. All motions other
than the postconviction motion itself shall be accompanied
by a notice of hearing.
(2) Duty of Clerk. A motion filed under this rule
shall be immediately delivered to the chief judge or the
assigned judge along with the court file.
(3) Answer.
(A) Answer to the Initial Motion. Within 60
days of the filing of an initial motion, the state shall
file its answer. The answer and accompanying memorandum
of law shall not exceed 75 pages, exclusive of
attachments and exhibits. The answer shall address the
legal insufficiency of any claim in the motion, respond
to the allegations of the motion, and address any procedural
bars. As to any claims of legal insufficiency or
procedural bar, the state shall include a short statement
of any applicable case law.
(B) Answer to a Successive Motion. Within 20
days of the filing of a successive motion, the state shall
file its answer. The answer shall not exceed 25 pages,
exclusive of attachments and exhibits. The answer
shall specifically respond to each claim in the motion
and state the reason(s) that an evidentiary hearing is or
is not required.
(4) Amendments. A motion filed under this rule
may be amended up to 30 days prior to the evidentiary
hearing upon motion and good cause shown. The trial
court may in its discretion grant a motion to amend provided
that the motion sets forth the reason the claim was
not raised earlier and attaches a copy of the claim sought
to be added. Granting a motion under this subdivision
shall not be a basis for granting a continuance of the
evidentiary hearing unless a manifest injustice would
occur if a continuance was not granted. If amendment
is allowed, the state shall file an amended answer within
20 days after the amended motion is filed.
(5) Case Management Conference; Evidentiary
Hearing.
(A) Initial Postconviction Motion. No later
than 90 days after the state files its answer to an initial
motion, the trial court shall hold a case management
conference. At the case management conference, both
parties shall disclose all documentary
exhibits that they
intend to offer at the evidentiary hearing, provide an
exhibit list of all such exhibits, and exchange a witness
list with the names and addresses of any potential
witnesses. All expert witnesses shall be specifically
designated on the witness list, and copies of all expert
reports shall be attached. At the case management conference,
the trial court shall:
(i) schedule an evidentiary hearing, to be held
within 90 days, on claims listed by the defendant as
requiring a factual determination;
(ii) hear argument on any purely legal claims
not based on disputed facts; and
(iii) resolve disputes arising from the exchange
of information under this subdivision.
(B) Successive Postconviction Motion. Within
30 days after the state files its answer to a successive
motion for postconviction relief, the trial court shall
hold a case management conference. At the case management
conference, the trial court also shall determine
whether an evidentiary hearing should be held and hear
argument on any purely legal claims not based on disputed
facts. If the motion, files, and records in the case
conclusively show that the movant is entitled to no relief,
the motion may be denied without an evidentiary
hearing. If the trial court determines that an evidentiary
hearing should be held, the court shall schedule the
hearing to be held within 60 days. If a death warrant
has been signed, the trial court shall expedite these
time periods in accordance with subdivision (h) of this
rule.
(C) Extension of Time to Hold Evidentiary
Hearing. The trial court also may for good cause extend
the time for holding an evidentiary hearing for up
to 90 days.
(D) Procedures After Evidentiary Hearing.
Immediately following an evidentiary hearing, the trial
court shall order a transcript of the hearing which shall
be filed within 30 days. Within 30 days of receipt of
the transcript, the court shall render its order, ruling on
each claim considered at the evidentiary hearing and
all other claims raised in the motion, making detailed
findings of fact and conclusions of law with respect to
each claim, and attaching or referencing such portions
of the record as are necessary to allow for meaningful
appellate review. The order issued after the evidentiary
hearing shall resolve all the claims raised in the motion
and shall be considered the final order for purposes of
appeal. The clerk of the trial court shall promptly serve
upon the parties and the attorney general a copy of the
final order, with a certificate of service.
(6) Mental Health Expert. If the defendant intends
to offer expert testimony of his or her mental
status, the state shall be entitled to have the defendant
examined by its own mental health expert. If the
defendant fails to cooperate with the state’s expert, the
trial court may, in its discretion, proceed as provided
in rule 3.202(e). Reports provided to either party by an
expert witness shall be disclosed to opposing counsel
upon receipt.
(7) Rehearing. Motions for rehearing shall be
filed within 15 days of the rendition of the trial court’s
order and a response thereto filed within 10 days thereafter.
The trial court’s order disposing of the motion
for rehearing shall be rendered not later than 15 days
thereafter.
(g) Incompetence to Proceed in Capital Collateral
Proceedings.
(1) A death‑sentenced prisoner pursuing collateral
relief under this rule who is found by the court to be
mentally incompetent shall not be proceeded against
if there are factual matters at issue, the development
or resolution of which require the prisoner’s input.
However, all collateral relief issues that involve only
matters of record and claims that do not require the
prisoner’s input shall proceed in collateral proceedings
notwithstanding the prisoner’s incompetency.
(2) Collateral counsel may file a motion for competency
determination and an accompanying certificate
of counsel that the motion is made in good faith and on
reasonable grounds to believe that the death‑sentenced
prisoner is incompetent to proceed. The motion and
certificate shall replace the signed oath by the prisoner
that otherwise must accompany a motion filed under
this rule.
(3) If, at any stage of a postconviction proceeding,
the court determines that there are reasonable grounds
to believe that a death-sentenced prisoner is incompetent
to proceed and that factual matters are at issue, the
development or resolution of which require the prisoner’s
input, a judicial determination
of incompetency
is required.
(4) The motion for competency examination
shall be in writing and shall allege with specificity
the factual matters at issue and the reason that competent
consultation with the prisoner is necessary with
respect to each factual matter specified. To the extent
that it does not invade the lawyer‑client privilege with
collateral counsel, the motion shall contain a recital of
the specific observations of, and conversations with,
the death‑sentenced prisoner that have formed the basis
of the motion.
(5) If the court finds that there are reasonable
grounds to believe that a death‑sentenced prisoner is
incompetent to proceed in a postconviction proceeding
in which factual matters are at issue, the development
or resolution of which require the prisoner’s input, the
court shall order the prisoner examined by no more
than 3, nor fewer than 2, experts before setting the
matter for a hearing. The court may seek input from
the death‑sentenced prisoner’s counsel and the state
attorney before appointment of the experts.
(6) The order appointing experts shall:
(A) identify the purpose of the evaluation and
specify the area of inquiry that should be addressed;
(B) specify the legal criteria to be applied; and
(C) specify the date by which the report shall be
submitted and to whom it shall be submitted.
(7) Counsel for both the death‑sentenced prisoner
and the state may be present at the examination,
which
shall be conducted at a date and time convenient for all
parties and the Department of Corrections.
(8) On appointment by the court, the experts shall
examine the death‑sentenced prisoner with respect to
the issue of competence to proceed, as specified by the
court in its order appointing the experts to evaluate the
prisoner, and shall evaluate the prisoner as ordered.
(A) The experts first shall consider factors related
to the issue of whether the death-sentenced prisoner
meets the criteria for competence to proceed, that
is, whether the prisoner has sufficient present ability
to consult with counsel with a reasonable degree of
rational understanding and whether the prisoner has a
rational as well as factual understanding
of the pending
collateral proceedings.
(B) In considering the issue of competence to
proceed, the experts shall consider and include in their
report:
(i) the prisoner’s capacity to understand the
adversary nature of the legal process and the collateral
proceedings;
(ii) the prisoner’s ability to disclose to collateral
counsel facts pertinent to the postconviction
proceeding at issue; and
(iii) any other factors considered relevant by
the experts and the court as specified in the order appointing
the experts.
(C) Any written report submitted by an expert
shall:
(i) identify the specific matters referred for
evaluation;
(ii) describe the evaluative procedures, techniques,
and tests used in the examination and the purpose
or purposes for each;
(iii) state the expert’s clinical observations,
findings, and opinions on each issue referred by the
court for evaluation, and indicate specifically those
issues, if any, on which the expert could not give an
opinion; and
(iv) identify the sources of information used by
the expert and present the factual basis for the expert’s
clinical findings and opinions.
(9) If the experts find that the death‑sentenced
prisoner is incompetent to proceed, the experts shall
report on any recommended treatment for the prisoner
to attain competence to proceed. In considering
the issues
relating to treatment, the experts shall report on:
(A) the mental illness or mental retardation causing
the incompetence;
(B) the treatment or treatments appropriate for
the mental illness or mental retardation of the prisoner
and an explanation of each of the possible treatment
alternatives in order of choices; and
(C) the likelihood of the prisoner attaining competence
under the treatment recommended, an assessment
of the probable duration of the treatment required
to restore competence, and the probability that the
prisoner will attain competence to proceed in the foreseeable
future.
(10) Within 30 days after the experts have completed
their examinations of the death‑sentenced prisoner,
the court shall schedule a hearing on the issue of
the prisoner’s competence to proceed.
(11) If, after a hearing, the court finds the prisoner
competent to proceed, or, after having found the
prisoner incompetent, finds that competency has been
restored, the court shall enter its order so finding and
shall proceed with a postconviction motion. The prisoner
shall have 60 days to amend his or her rule 3.851
motion only as to those issues that the court found required
factual consultation with counsel.
(12) If the court does not find the prisoner incompetent,
the order shall contain:
(A) findings of fact relating to the issues of
competency;
(B) copies of the reports of the examining experts;
and
(C) copies of any other psychiatric, psychological,
or social work reports submitted to the court relative to
the mental state of the death‑sentenced prisoner.
(13) If the court finds the prisoner incompetent
or finds the prisoner competent subject to the continuation
of appropriate treatment, the court shall follow
the procedures set forth in rule 3.212(c), except that, to
the extent practicable, any treatment shall take place at
a custodial facility under the direct supervision of the
Department of Corrections.
(h) After Death Warrant Signed.
(1) Judicial Assignment. The chief judge of the
circuit shall assign the case to a judge qualified under
the Rules of Judicial Administration to conduct capital
cases as soon as notification of the death warrant is
received.
(2) Calendar Advancement. Proceedings after
a death warrant has been issued shall take precedence
over all other cases. The assigned judge shall make
every effort to resolve scheduling conflicts with other
cases including cancellation or rescheduling of hearings
or trials and requesting senior judge assistance.
(3) Schedule of Proceedings. The time limitations
in this rule shall not apply after a death warrant has
been signed. All motions shall be heard expeditiously
considering the time limitations set by the date of execution
and the time required for appellate review.
(4) Location of Hearings. The location of hearings
after a death warrant is signed shall be determined by
the trial judge considering the availability of witnesses
or evidence, the security problems involved in the case,
and any other factor determined by the trial court.
(5) Postconviction Motions. All motions filed
after a death warrant is issued shall be considered successive
motions and subject to the content requirement
of subdivision (e)(2) of this rule.
(6) Case Management Conference. The assigned
judge shall schedule a case management conference as
soon as reasonably possible after receiving notification
that a death warrant has been signed. During the case
management conference the court shall set a time for
filing a postconviction motion and shall schedule a hearing
to determine whether an evidentiary hearing should
be held and hear argument on any purely legal claims
not based on disputed facts. If the motion, files, and records
in the case conclusively show that the movant is
entitled to no relief, the motion may be denied without
an evidentiary hearing. If the trial court determines that
an evidentiary hearing should be held, the court shall
schedule the hearing to be held as soon as reasonably
possible considering the time limitations set by the date
of execution and the time required for appellate review.
(7) Reporting. The assigned judge shall require
the proceedings conducted under death warrant to be
reported using the most advanced and accurate technology
available in general use at the location of the
hearing. The proceedings shall be transcribed expeditiously
considering the time limitations set by the execution
date.
(8) Procedures After Hearing. The court shall
obtain a transcript of all proceedings and shall render
its order in accordance with subdivision (f)(5)(D) of
this rule as soon as possible after the hearing is concluded.
A copy of the final order shall be electronically
transmitted to the Supreme Court of Florida and to the
attorneys of record.
(9) Transmittal of Record. The record shall be
immediately delivered to the clerk of the Supreme
Court of Florida by the clerk of the trial court or as
ordered by the assigned judge. The record shall also be
electronically transmitted if the technology is available.
A notice of appeal shall not be required to transmit the
record.
(i) Dismissal of Postconviction Proceedings.
(1) This subdivision applies only when a prisoner
seeks both to dismiss pending postconviction
proceedings
and to discharge collateral counsel.
(2) If the prisoner files the motion pro se, the
Clerk of the Court shall serve copies of the motion on
counsel of record for both the prisoner and the state.
Counsel of record may file responses within ten days.
(3) The trial judge shall review the motion and
the responses and schedule a hearing. The prisoner,
collateral counsel, and the state shall be present at the
hearing.
(4) The judge shall examine the prisoner at the
hearing and shall hear argument of the prisoner, collateral
counsel, and the state. No fewer than two or
more than three qualified experts shall be appointed to
examine the prisoner if the judge concludes that there
are reasonable grounds to believe the prisoner is not
mentally competent for purposes of this rule. The experts
shall file reports with the court setting forth their
findings. Thereafter, the court shall conduct an evidentiary
hearing and enter an order setting forth findings of
competency or incompetency.
(5) If the prisoner is found to be incompetent for
purposes of this rule, the court shall deny the motion
without prejudice.
(6) If the prisoner is found to be competent for
purposes of this rule, the court shall conduct a complete
(Durocher/Faretta) inquiry to determine whether
the prisoner knowingly, freely and voluntarily wants
to dismiss pending postconviction proceedings and
discharge collateral counsel.
(7) If the court determines that the prisoner has
made the decision to dismiss pending postconviction
proceedings and discharge collateral counsel knowingly,
freely and voluntarily, the court shall enter an
order dismissing all pending postconviction proceedings
and discharging collateral counsel. But if the court
determines that the prisoner has not made the decision
to dismiss pending postconviction proceedings and
discharge collateral counsel knowingly, freely and
voluntarily, the court shall enter an order denying the
motion without prejudice.
(8) If the court grants the motion:
(A) a copy of the motion, the order, and the
transcript of the hearing or hearings conducted on the
motion shall be forwarded to the Clerk of the Supreme
Court of Florida within 30 days; and
(B) discharged counsel shall, 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 shall, within 20 days after
the filing of the transcript, serve an initial brief. Both
the prisoner and the state may serve responsive briefs.
Briefs shall be served as prescribed by rule 9.210.
(9) If the court denies the motion, the prisoner
may seek review as prescribed by rule 9.142.
(j) Belated Appeals. Pursuant to the procedures
outlined in Florida Rule of Appellate Procedure
9.142(d), a petitioner may seek a belated appeal upon
the allegation that the petitioner timely requested counsel
to appeal the order denying petitioner’s motion for
postconviction relief and counsel, through neglect,
failed to do so.

“Disclaimer: The information on this page does not represent legal advice. Florida Statues obtained from Online Sunshine, www.leg.state.fl.us, the official site of the Florida Legislature. Because the law is continually changing, some of the provisions contained herein may be out of date. Contact the experienced criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A. 24 hours a day, 7 days a week, toll free at (866) 262-4874 begin_of_the_skype_highlighting              (866) 262-4874      end_of_the_skype_highlighting or locally at (305) 858-9550.

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