3.160 - Arraignment
(a) Nature of Arraignment.
The arraignment must be conducted in open court or by audio-video communication technology in the discretion of the court and must consist of the judge or clerk or prosecuting attorney reading the indictment or information on which the defendant will be tried to the defendant or stating orally to the defendant the substance of the charge or charges and calling on the defendant to plead thereto. The reading or statement as to the charge or charges may be waived by the defendant. If the defendant is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment must be deemed waived.
(b) Effect of Failure to Arraign or Irregularity of Arraignment
Neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the indictment or information on which the defendant is to be tried or proceeds to trial without objection to such failure or irregularity.
(c) Plea of Guilty after Indictment or Information Filed
If a person who has been indicted or informed against for an offense, but who has not been arraigned, desires to plead guilty thereto, the person may so inform the court having jurisdiction of the offense, and the court shall, as soon as convenient, arraign the defendant and permit the defendant to plead guilty to the indictment or information.
(d) Time to Prepare for Trial
After a plea of not guilty the defendant is entitled to a reasonable time in which to prepare for trial.
(e) Defendant Not Represented by Counsel
Prior to arraignment of any person charged with the commission of a crime, if he or she is not represented by counsel, the court shall advise the person of the right to counsel and, if he or she is financially unable to obtain counsel, of the right to be assigned court-appointed counsel to represent him or her at the arraignment and at all subsequent proceedings. The person shall execute an affidavit that he or she is unable financially or otherwise to obtain counsel, and if the court shall determine the reason to be true, the court shall appoint counsel to represent the person. If the defendant, however, understandingly waives representation by counsel, he or she shall execute a written waiver of such representation, which shall be filed in the case. If counsel is appointed, a reasonable time shall be accorded to counsel before the defendant shall be required to plead to the indictment or information on which he or she is to be arraigned or tried, or otherwise to proceed further.
Committee Notes
1968 Adoption. (a) A combination of section 908.01, Florida Statutes, and Federal Rule of Criminal Procedure 10. (b) Same as section 908.02, Florida Statutes. (c) Same as section 909.15, Florida Statutes, except provision is made for trial by affidavit. (d) Same as section 909.20, Florida Statutes. (e) Federal rule 44 provides: “If the defendant appears in court without counsel the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.” A presently proposed amendment to such rule provides: “(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment.
“(b) Assignment Procedure. The procedures for implementing the right set out in subdivision (a) shall be those provided by law or by local rules of district courts of appeal.” In lieu of such latter, blanket provision, it is suggested that the rule provide, as stated, for inquiry of the defendant and determination by the court as to the defendant’s desire for and inability to obtain counsel, after being advised of entitlement thereto. Many defendants, of course, will waive counsel. In view of Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), holding that entitlement to counsel does not depend upon whether the offense charged is a felony or misdemeanor, it is suggested that the word “crime” be used instead of “felony” only in the first sentence of the proposed rule. In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), involving breaking and entering with intent to commit rape, the Supreme Court held the defendant was entitled to counsel at the arraignment, if the arraignment be deemed a part of the trial, as apparently it is under Alabama law. In Ex parte Jeffcoat, 109 Fla. 207, 146 So. 827 (1933), the Supreme Court of Florida held the arraignment to be a mere formal preliminary step to an answer or plea. However, in Sardinia v. State, 168 So. 2d 674 (Fla. 1964), the court recognized the accused’s right to counsel upon arraignment. Section 909.21, Florida Statutes, provides for appointment of counsel in capital cases. 1972 Amendment. Substantially the same as prior rule. The committee considered changes recommended by The Florida Bar and incorporated the proposed change relating to written plea of not guilty and waiver of arraignment. 1992 Amendment. The amendment allows the judge to participate in the arraignment process by including the judge as one of the designated individuals who may advise the defendant of the pending charges. Apparently, the 1988 amendment to rule 3.160(a) inadvertently eliminated the judge from the arraignment procedure. In re Rule 3.160(a), Florida Rules of Criminal Procedure, 528 So. 2d 1179, 1180 (Fla. 1988). The prior amendment did include the judge. The Florida Bar Re: Amendment to Rules — Criminal Procedure, 462 So. 2d 386 (Fla. 1984). While the language of rule 3.160(a) as presently set out in the Florida Bar pamphlet, Florida Rules of Criminal Procedure, is identical to the language of this proposed amendment (that is, it includes the judge in the arraignment process), the West publications, Florida Criminal Laws and Rules (1991) and Florida Rules of Court (1991), nevertheless follow the language set out in 528 So. 2d at 1180.
3.170 - Pleas
(a) Types of Plea; Court’s Discretion
A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. Except as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to the charge at the first appearance under rule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed. A plea of not guilty may be entered in writing by counsel. Every plea shall be entered of record, but a failure to enter it shall not affect the validity of any proceeding in the cause.
(b) Pleading to Other Charges
Having entered a plea in accordance with this rule, the defendant may, with the court’s permission, enter a plea of guilty or nolo contendere to any and all charges pending against him or her in the State of Florida over which the court would have jurisdiction and, when authorized by law, to charges pending in a court of lesser jurisdiction, if the prosecutor in the other case or cases gives written consent thereto. The court accepting such a plea shall make a disposition of all such charges by judgment, sentence, or otherwise. The record of the plea and its disposition shall be filed in the court of original jurisdiction of the offense. If a defendant secures permission to plead to other pending charges and does so plead, the entry of such a plea shall constitute a waiver by the defendant of venue and all nonjurisdictional defects relating to such charges.
(c) Standing Mute or Pleading Evasively
If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.
(d) Failure of Corporation to Appear
If the defendant is a corporation and fails to appear, a plea of not guilty shall be entered of record.
(e) Plea of Not Guilty; Operation in Denial
A plea of not guilty is a denial of every material allegation in the indictment or information on which the defendant is to be tried.
(f) Withdrawal of Plea of Guilty or No Contest
The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.
(g) Vacation of Plea and Sentence Due to Defendant’s Noncompliance
(1) Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.
(2) Unless otherwise stated at the time the plea is entered:
(A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.
(B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary hearing on (g) Vacation of Plea and Sentence Due to Defendant’s Noncompliance.
(1) Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.
(2) Unless otherwise stated at the time the plea is entered:
(A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.
(B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.
(C) No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.
(D) When a plea and sentence is vacated pursuant to this rule, the cause shall be set for trial within 90 days of the order vacating the plea and sentence.
(h) Plea of Guilty to Lesser Included Offense or Lesser Degree
The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged that is included in the offense charged in the indictment or information or to any lesser degree of the offense charged.
(i) Plea of Guilty to an Offense Divided into Degrees; Determination of the Degree
When an indictment or information charges an offense that is divided into degrees without specifying the degree, if the defendant pleads guilty, generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty.
(j) Time and Circumstances of Plea
No defendant, whether represented by counsel or otherwise, shall be called on to plead unless and until he or she has had a reasonable time within which to deliberate thereon.
(k) Responsibility of Court on Pleas
No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings stenographically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty. A complete record of the proceedings at which a defendant pleads shall be kept by the court.
(l) Motion to Withdraw the Plea after Sentencing
A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)–(e) except as provided by law.
(m) Motion to Withdraw the Plea after Drug Court Transfer
A defendant who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, pursuant to section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the drug court treatment program.
Committee Notes
1968 Adoption. (a) Patterned after the major portion of Federal Rule of Criminal Procedure 11. (b) Same as section 909.07, Florida Statutes, except the word “made” is substituted for “pleaded.” (c) Taken from a part of section 908.03, Florida Statutes. (d) Taken from a part of section 908.03, Florida Statutes. (e) Same as section 909.16, Florida Statutes, except that provision is added for trial by affidavit. (f) Essentially the same as section 909.13, Florida Statutes. (g) Essentially the same as section 909.09, Florida Statutes, except for the addition of the charge by affidavit. (h) Same as section 909.11, Florida Statutes, except provision is made for a charge by affidavit.
1972 Amendment. This general topic is found in ABA Standard relating to pleas of guilty. The Standards are divided into 3 parts: receiving and acting upon a plea; withdrawal of the plea; and plea discussions and plea agreements. The first and second parts are considered under this rule. (a) Same as first part of existing rule; substance of second sentence of existing rule transferred to new subdivision (j); new provision permits, with court approval, plea of not guilty to be made in writing. (b) From ABA Standard 1.2; the purpose of this rule is to permit a defendant to plead guilty or nolo contendere to all cases pending against the defendant, thus avoiding multiple judicial and prosecutorial labors. New concept of permitting this procedure even though the other cases are pending in other counties is taken from Federal Rule of Criminal Procedure 20 which has successfully met the purpose explained above. (c) Same as prior rule. (d) Same as prior rule. (e) Same as prior rule. (f) Last sentence added from ABA Standard 2.2. (g) Same as prior rule. (h) Same as prior rule. (i) This should be done in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Garcia v. State, 228 So. 2d 300 (Fla. 1969). This should also include advising a defendant so pleading of the possibility of an action or charge against him or her as a multiple felon if the circumstances so warrant. (j) From first sentence of present rule 3.170(a) with addition of requirement of determination of factual basis for a plea of guilty as provided by last sentence of federal rule 11. While requiring the presence of a court reporter, the proposed rule does not require that the reporter transcribe and file a transcript of the proceedings on a plea of guilty or nolo contendere, although the committee considers that such a requirement by the trial judge is desirable.
1973 Amendment. The purpose of this amendment is to provide a method whereby a defendant may plead guilty to a misdemeanor at first appearance without the necessity of the state attorney subsequently filing an information.
3.171 - Plea Discussions and Agreements
(a) In General
Ultimate responsibility for sentence determination rests with the trial judge. However, the prosecuting attorney and the defense attorney, or the defendant when representing himself or herself, are encouraged to discuss and to agree on pleas that may be entered by a defendant. The discussion and agreement must be conducted with the defendant’s counsel. If the defendant represents himself or herself, all discussions between the defendant and the prosecuting attorney shall be of record.
(b) Responsibilities of the Prosecuting Attorney
(1) A prosecuting attorney may:
(A) engage in discussions with defense counsel or a defendant who is without counsel with a view toward reaching an agreement that, upon the defendant’s entering a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecuting attorney will do any of the following:
(i) abandon other charges; or
(ii) make a recommendation, or agree not to oppose the defendant’s request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the trial judge; or
(iii) agree to a specific sentence; and
(B) consult with the victim, investigating officer, or other interested persons and advise the trial judge of their views during the course of plea discussions.
(2) The prosecuting attorney shall:
(A) apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant’s background prior to acceptance of a plea by the trial judge; and
(B) maintain the record of direct discussions with a defendant who represents himself or herself and make the record available to the trial judge upon the entry of a plea arising from these discussions.
(c) Responsibilities of Defense Counsel
(1) Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without the client’s full and complete consent thereto, being certain that any decision to plead guilty or nolo contendere is made by the defendant.
(2) Defense counsel shall advise defendant of:
(A) all plea offers; and
(B) all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.
(d) Responsibilities of the Trial Judge
After an agreement on a plea has been reached, the trial judge may have made known to him or her the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, the judge shall advise the parties whether other factors (unknown at the time) may make his or her concurrence impossible.
Committee Notes
1972 Amendment. New in Florida. Most criminal cases are disposed of by pleas of guilty arrived at by negotiations between prosecutor and defense counsel, but there was no record of the “plea negotiations,” “plea bargaining,” or “compromise.” The result has been a flood of postconviction claims which require evidentiary hearings and frequently conflicting testimony concerning the plea negotiations. There has also been criticism of the practice of requiring a defendant, upon a negotiated guilty plea, to give a negative reply to the court’s inquiry concerning any “promise” made to the defendant. This is designed to avoid the foregoing pitfalls and criticisms by having the negotiations made of record and permitting some control of them. See Commentary to Standard 3.1 ABA Standards relating to pleas of guilty. (a) From Standard 3.1a. (b) From Standard 3.2. (c) From Standard 3.3 except for omission of that part of standard which prohibits trial judge from participating in plea discussions. (d) From Standard 3.4.
1977 Amendment. This is a rewording of the prior rule in order to set out the responsibilities of the participants. The rule recognizes the ultimate responsibility of the trial judge, but it encourages prosecution and defense counsel to assist the trial judge in this regard. When the circumstances of the case so merit, it is the responsibility of each respective party to discuss a fair disposition in lieu of trial. For protection of the prosecutor and the defendant, plea discussions between the state and a pro se defendant should be recorded, in writing or electronically. (b) New in Florida. (1)(i) Restatement of policy followed by extensive revision in the form of Federal Rule of Criminal Procedure 11(e)(1). (1)(ii)The rule sets out discretionary minimum professional prosecutorial procedure where either victim or law enforcement officers are involved to better guide the trial judge. (2)(i) Mandatory responsibility of prosecutor contemplates disposition with no presentence investigation. (2)(ii)Mandatory record protects both the prosecutor and the pro se defendant. (c)(1) Renumbering subdivision (b) of prior rule. (2)(i) New in Florida. This proposed language makes it mandatory for defense counsel to advise fully defendant of all plea offers by the state. Defense counsel should also discuss and explain to the defendant those matters which trial judge will inquire about before accepting a plea. (2)(ii)Same as prior rule 3.171(b), paragraph 2. (d) Now embraces and renumbers former rule 3.171(c). The content of former rule 3.171(d) now appears as part of new rule 3.172.
3.172 - Acceptance of Guilty or Nolo Contendere Plea
(a) Voluntariness; Factual Basis
Before accepting a plea of guilty or nolo contendere, the trial judge shall determine that the plea is voluntarily entered and that a factual basis for the plea exists. Counsel for the prosecution and the defense shall assist the trial judge in this function.
(b) Open Court
All pleas shall be taken in open court, except that when good cause is shown a plea may be taken in camera.
(c) Determination of Voluntariness
Except when a defendant is not present for a plea pursuant to the provisions of rule 3.180(d), the trial judge must, when determining voluntariness, place the defendant under oath, address the defendant personally, and determine on the record that he or she understands:
(1) Nature of the Charge
The nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory minimum penalty provided by law.
(2) Right to Representation
If not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, an attorney will be appointed to represent him or her.
(3) Right to Trial By Jury and Attendant Rights
The right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury, and at that trial a defendant has the right to the assistance of counsel, the right to compel attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to testify or be compelled to incriminate himself or herself.
(4) Effect of Plea
Upon a plea of guilty, or nolo contendere without express reservation of the right to appeal, he or she gives up the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does not impair the right to review by appropriate collateral attack.
(5) Waiving Right to Trial
If the defendant pleads guilty or is adjudged guilty after a plea of nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he or she waives the right to a trial.
(6) Questioning by Judge
If the defendant pleads guilty or nolo contendere, the trial judge may ask the defendant questions about the offense to which he or she has pleaded, and if the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against him or her in a prosecution for perjury.
(7) Terms of Plea Agreement
The complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result.
(8) Deportation Consequences
(A) If the defendant is not a citizen of the United States, a finding of guilt by the court, and the court’s acceptance of the defendant’s plea of guilty or no contest, regardless of whether adjudication of guilt has been withheld, may have the additional consequence of changing his or her immigration status, including deportation or removal from the United States.
(B) The court should advise the defendant to consult with counsel if he or she needs additional information concerning the potential deportation consequences of the plea.
(C) If the defendant has not discussed the potential deportation consequences with his or her counsel, prior to accepting the defendant’s plea, the court is required, upon request, to allow a reasonable amount of time to permit the defendant to consider the appropriateness of the plea in light of the advisement described in this section.
(D) This admonition should be given to all defendants in all cases, and the trial court must not require at the time of entering a plea that the defendant disclose his or her legal status in the United States.
(9) Sexually Violent or Sexually Motivated Offenses
If the defendant pleads guilty or nolo contendere, and the offense to which the defendant is pleading is a sexually violent offense or a sexually motivated offense, or if the defendant has been previously convicted of such an offense, the plea may subject the defendant to involuntary civil commitment as a sexually violent predator upon completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated, as this admonition shall be given to all defendants in all cases.
(10) Driver License Suspension or Revocation
If the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver license suspension or revocation is required by law to be imposed, either by the court or by a separate agency, the plea will provide the basis for the suspension or revocation of the defendant’s driver license.
(k) Responsibility of Court on Pleas
No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings stenographically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty. A complete record of the proceedings at which a defendant pleads shall be kept by the court.
(l) Motion to Withdraw the Plea after Sentencing
A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)–(e) except as provided by law.
(m) Motion to Withdraw the Plea after Drug Court Transfer
A defendant who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, pursuant to section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the drug court treatment program.
Committee Notes
1968 Adoption. (a) Patterned after the major portion of Federal Rule of Criminal Procedure 11. (b) Same as section 909.07, Florida Statutes, except the word “made” is substituted for “pleaded.” (c) Taken from a part of section 908.03, Florida Statutes. (d) Taken from a part of section 908.03, Florida Statutes. (e) Same as section 909.16, Florida Statutes, except that provision is added for trial by affidavit. (f) Essentially the same as section 909.13, Florida Statutes. (g) Essentially the same as section 909.09, Florida Statutes, except for the addition of the charge by affidavit. (h) Same as section 909.11, Florida Statutes, except provision is made for a charge by affidavit.
1972 Amendment. This general topic is found in ABA Standard relating to pleas of guilty. The Standards are divided into 3 parts: receiving and acting upon a plea; withdrawal of the plea; and plea discussions and plea agreements. The first and second parts are considered under this rule. (a) Same as first part of existing rule; substance of second sentence of existing rule transferred to new subdivision (j); new provision permits, with court approval, plea of not guilty to be made in writing. (b) From ABA Standard 1.2; the purpose of this rule is to permit a defendant to plead guilty or nolo contendere to all cases pending against the defendant, thus avoiding multiple judicial and prosecutorial labors. New concept of permitting this procedure even though the other cases are pending in other counties is taken from Federal Rule of Criminal Procedure 20 which has successfully met the purpose explained above. (c) Same as prior rule. (d) Same as prior rule. (e) Same as prior rule. (f) Last sentence added from ABA Standard 2.2. (g) Same as prior rule. (h) Same as prior rule. (i) This should be done in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Garcia v. State, 228 So. 2d 300 (Fla. 1969). This should also include advising a defendant so pleading of the possibility of an action or charge against him or her as a multiple felon if the circumstances so warrant. (j) From first sentence of present rule 3.170(a) with addition of requirement of determination of factual basis for a plea of guilty as provided by last sentence of federal rule 11. While requiring the presence of a court reporter, the proposed rule does not require that the reporter transcribe and file a transcript of the proceedings on a plea of guilty or nolo contendere, although the committee considers that such a requirement by the trial judge is desirable.
1973 Amendment. The purpose of this amendment is to provide a method whereby a defendant may plead guilty to a misdemeanor at first appearance without the necessity of the state attorney subsequently filing an information.
(d) DNA Evidence Inquiry
Before accepting a defendant’s plea of guilty or nolo contendere to a felony, the judge must inquire whether counsel for the defense has reviewed the discovery disclosed by the state, whether such discovery included a listing or description of physical items of evidence, and whether counsel has reviewed the nature of the evidence with the defendant. The judge must then inquire of the defendant and counsel for the defendant and the state whether physical evidence containing DNA is known to exist that could exonerate the defendant. If no such physical evidence is known to exist, the court may accept the defendant’s plea and impose sentence. If such physical evidence is known to exist, upon defendant’s motion specifying the physical evidence to be tested, the court may postpone the proceeding and order DNA testing.
(e) Acknowledgment by Defendant
Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either:
(1) acknowledges his or her guilt; or
(2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.
(f) Proceedings of Record
The proceedings at which a defendant pleads guilty or nolo contendere shall be of record.
(g) Withdrawal of Plea Offer or Negotiation
No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.
(h) Withdrawal of Plea When Judge Does Not Concur
If the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn.
(i) Evidence
Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
(j) Prejudice
Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.
Committee Notes
1977 Adoption. New in Florida. In view of the supreme court’s emphasis on the importance of this procedure as set forth in Williams v. State, 316 So. 2d 267 (Fla. 1975), the committee felt it appropriate to expand the language of former rule 3.170(j) (deleted) and establish a separate rule. Incorporates Federal Rule of Criminal Procedure 11(c) and allows for pleas of convenience as provided in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). (a), (b) Mandatory record of voluntariness and factual predicate is proper responsibility of counsel as well as the court. (c)(iv)This waiver of right to appeal is a change from the proposed amendments to the rules of criminal procedure now pending. A sentence if lawful is not subject to appellate review; a judgment, however, is. The committee was of the opinion that the proposed rule should be expanded to include a waiver of appeal from the judgment as well as the sentence. Waivers of appeal have been approved. United States ex rel. Amuso v. LaValle, 291 F.Supp. 383 (E.D.N.Y. 1968), aff’d 427 F.2d 328 (2d Cir. 1970); State v. Gibson, 68 N.J. 499, 348 A.2d 769 (1975); People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684 (1975). (vii) Requires the court to explain the plea agreement to the defendant, including conditions subsequent such as conditions of probation. (e) Provides a readily available record (either oral or by use of standard forms) in all cases where a felony is charged. (h) Rewording of federal rule 11(e)(6).
2005 Amendment. Rule 3.172(c)(9) added. See section 394.910, et seq., Fla. Stat.; and State v. Harris, 881 So. 2d 1079 (Fla. 2004).
2015 Amendment. In view of the holdings in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), and Hernandez v. State, 124 So. 3d 757 (Fla. 2012), the Committee felt it appropriate to expand the requirements in subdivision (c)(8).
3.180 - Presence of the Defendant
(a) Presence of Defendant
In all prosecutions for crime the defendant must be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty has been made in writing under the provisions of rule 3.170(a);
(3) at any pretrial conference, unless the defendant’s presence is waived in writing or on the record by the defendant or by the defendant’s counsel with the defendant’s consent;
(4) at the beginning of the trial during the examination, challenging, impaneling, and swearing of the jury;
(5) at all proceedings before the court when the jury is present;
(6) when evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury;
(7) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the imposition of sentence.
(b) Presence; Definition
A defendant is present for purposes of this rule if the defendant has a meaningful opportunity to be heard through counsel on the issues being discussed and the defendant:
(1) is physically in attendance for the courtroom proceeding;
(2) waives physical attendance in writing or on the record for a proceeding that requires the defendant’s presence under subdivision (a)(2) or (a)(9), the court accepts the wavier, and the defendant appears by audio-video communication technology; or
(3) appears by audio-video communication technology for a first appearance hearing under rule 3.130.
(c) Defendant Absenting Self
(1) Trial. If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.
(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.
(d) Defendant May Be Tried in Absentia for Misdemeanors
Persons prosecuted for misdemeanors may, at their own request, by leave of court, be excused from attendance at any or all of the proceedings aforesaid.
(e) Presence of Corporation
A corporation may appear by counsel at all times and for all purposes.
Committee Notes
1968 Adoption. (a) The suggested rule is in great part a recopying of section 914.01, Florida Statutes: In (3) the words “at the beginning of the trial” are recommended for inclusion to avoid questions arising as to the necessity for the defendant’s presence at times other than upon trial, such as when the jury venire is ordered, etc. Subdivision (a)(8) is not in the present statute. However, it is deemed advisable to include it, as the several sections of chapter 921, Florida Statutes, particularly section 921.07, appear to impliedly or expressly require the defendant’s presence at such times. (c) The statute and the suggested rule make no distinction between capital and other cases. In all probability, however, were a person on trial for a capital case to escape during trial, a mistrial should be ordered if such person were not captured within a reasonable time. (d) It is suggested that this language be used rather than the all-inclusive general language of the present statute as to misdemeanor cases. (e) This provision does not appear in section 914.01, Florida Statutes, but it is a part of Federal Rule of Criminal Procedure 43. It is deemed useful to include it.
1972 Amendment. Same as prior rule except (3) added to conform to rule 3.220(k); other subdivisions renumbered.
3.181 - Notice to Seek the Death Penalty
In a prosecution for a capital offense, if the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant of the state’s intent to seek the death penalty. The notice must be filed with the court within 45 days of arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.
Committee Notes
2016 Amendment. This is a new rule, in response to legislation, and intended to complement Florida Rules of Criminal Procedure 3.202 (Expert Testimony of Mental Mitigation During Penalty Phase of Capital Trial; Notice and Examination by State Expert) and 3.780 (Sentencing Hearing for Capital Cases).